OYEBODE ALADE ATOYEBI v. FEDERAL REPUBLIC OF NIGERIA(2017)

OYEBODE ALADE ATOYEBI v. FEDERAL REPUBLIC OF NIGERIA

The Supreme Court of Nigeria

On Friday, the 15th day of December, 2017

SC.142/2017

RATIO

PRESUMPTION OF LAW RELATING TO THE INNOCENCE OF AN ACCUSED UNTIL PROVED GUILTY

EFFECT OF MAKING A “NO CASE SUBMISSION” ; WHEN CAN A “NO CASE SUBMISSION” BE PROPERLY MADE

However, at the close of the case of the prosecution, the defence is at liberty to make a “No Case Submission. Where such submission is made, it postulates that evidence was not led by the prosecution in support of all or any of the essential ingredients of the offence charged. In such situation, the trial Court is bound to discharge the accused person since to refuse to do so, will breach the constitutional requirement that the prosecution always had the burden to prove the accused persons guilt, rather than the accused proving his innocence. It is trite law, that a submission of ‘No Case to answer could only be properly made and upheld in the following circumstances; (a) Where there is no evidence led by the prosecution to prove an essential element of the offence charged, and/or (b) When the evidence led by the prosecution has been discredited during cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal could safely convict on it. See IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 SCNLR 99; ADEYEMI V. STATE (1991) 6 NWLR (PT.195) 1; OWONIKOKO VS. THE STATE (1990) 7 NWLR (PT.162) 381. PER AMIRU SANUSI, J.S.C.

DUTY INCUMBENT ON THE TRIAL JUDGE AT THE STAGE OF CONSIDERING A NO CASE SUBMISSION

I must say that at the stage of considering a No Case Submission, the trial Court is simply to ascertain if the prosecution has made a prima facie case requiring the accused to offer some explanation and NOT whether the evidence led against him is sufficient to justify conviction. See EKWUNUGO VS FRN (2008) 7 SC NJ 241 at 242. Again, in writing a ruling in No Case Submission, it is advisable that a trial Court should try as much as possible to be brief and should refrain from making any remarks or observations on the facts. Similarly, it is not the duty of the trial judge to at that stages, weigh and evaluate evidence or to decide who is telling the truth or not. It also should not conclude that what the prosecution adduced was unreliable. See EMEDO v STATE (2002) 7 SCNJ 226; R V. BAKER (1977) CR APPR 287; BELLO vs THE STATE (1967) NMLR 1. PER AMIRU SANUSI, J.S.C.

DEFINITION OF THE PHRASE “PRIMA FACIE”

My lords, permit me to adopt the definition of the phrase “prima facie” per the great jurist Nnamani JSC (of blessed memory) in the case of DURU V. NWOSU (1989) 1 NWLR (Pt.113) 24 at 43, where His Lordship in defining the phrase ‘prima facie’ stated thus:- “It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at. PER AMIRU SANUSI, J.S.C.

ESSENTIAL INGREDIENTS OF THE OFFENCE ACCEPTING CASH PAYMENTS WITHOUT GOING THROUGH A FINANCIAL INSTITUTION CONTRARY TO THE PROVISIONS OF THE SECTIONS 1 AND 15 OF THE MONEY LAUNDERING (PROHIBITION) ACTS OF 2004 AND 2011 RESPECTIVELY

Now, closely and dispassionately looking at the testimonies of PW1 and, PW2 and of course, the exhibits tendered at the trial against the appellant, the underlisted considerations were brought to fore which border on or relate to the essential ingredients of Sections 1 and 15 of the Money Laundering (Prohibition) Acts of 2004 and 2011 respectively. These points or pieces of evidence/ingredients are as Follow:- (1) That the accused person now appellant, made or accepted cash payment above N500,000 even though he is an individual and not a body corporate. (2) That the cash payment was not made through a financial institution. (3) That the accused is an individual and not a body corporate. PER AMIRU SANUSI, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

OLUKAYODE ARIWOOLA

ustice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

Between

OYEBODE ALADE ATOYEBI Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment): This instant appeal is against the judgment of the Court of Appeal, Lagos division (Lower Court) delivered on the 4th of November, 2016 which upturned the ruling of the Federal High Court, Lagos division (the trial Court). The facts of the case which gave rise to this appeal as gathered from the record are simply put as follows;
The appellant and one other person, were arraigned before the trial Court on a fifty four count charge, vide an Amended charge dated 4th of June, 2013 but filed on 7th June, 2013 (charge No.FHC/L/4420/2011). The appellant pleaded not guilty to all the counts. In presenting its case at the trial, the respondent as prosecutor, called two witnesses and tendered Exhibits P1- P6 and, closed its case. The appellant, “as accused person at the trial Court, thereafter made a “No Case Submission” urging the trial Court to discharge and acquit him as the prosecution/respondent failed to establish a prima facie case against him. In its considered ruling on the “No case submission”, the learned trial judge upheld the No Case Submission and discharged the

accused/appellant and held that there was no prima facie case made against the appellant to warrant him to present his defence. The Respondent became miffed with the ruling of the trial Court and thereby appealed to the Lower Court. The Lower Court consequently upheld the respondents appeal before it and held that the respondent had really made prima facie case against the appellant herein.

The appellant became aggrieved with the decision of the Lower Court and thereupon appealed to this Court vide a notice of appeal dated 17th January, 2017 which contains nine grounds of appeal.

In the appellants brief of argument settled by Oludele Adegboyega Adeogun and filed on 31/3/2017, four issues were identified for the determination of this appeal. The said issues are as follows:-
1. Whether the Court of Appeal was right in evaluating or re-evaluating the evidence adduced by parties before the trial Court when there is no appeal against the finding of facts made by the trial Court or where the appeal thereto has been abandoned. (Distilled from grounds 3, 4, 7 and 8 of the Notice of Appeal)
2. Whether the Court of Appeal was right in

holding that Section 1 of the Money Laundering (Prohibition) Act and 2011 creates a strict liability offence. (Distilled from grounds 5 and 6. The Notice of Appeal).
3. Whether the Court of Appeal was right in holding that proliferation of issues from the grounds of appeal is more technical rule rather than fundamental rule.
(Distilled from grounds 1 and 2 of the Notice of Appeal)
4. Whether the Court of Appeal was right in holding that the respondent has made out a prima facie case to warrant the appeal to enter a defence to the charge (Distilled from Ground 9).

On its part, the respondent, upon being served with the appellant’s brief of argument also filed its brief on 27/9/2017 but deemed filed on 11/10/2017. Therein, three issues were proposed for determination which read as below:-
(a) Whether the Court of Appeal was not right in holding that Section 1 of the Money Laundering (Prohibition) Act 2004 and Section 1 of the Money Laundering (Prohibition) Act 2011 created strict liability offence (Distilled from Grounds 5 & 6 of the Notice of Appeal).
(b) Whether the Court of Appeal was not right in holding that Issue 5 as

formulated by the respondent was valid after striking out respondent issue 2 which was distilled solely from ground 6, notwithstanding that Issue 5 was distilled from grounds 6, 12 and 14 of the Notice Appeal (Distilled from Grounds 1 and 2 of the Notice of Appeal)
(c) Whether the Court of Appeal was not right in holding that the respondent made out a prima facie case warranting the appellant enter his defence (Distilled from Grounds 3, 4, 7, 8 and 9 of the Notice of Appeal).

My noble lords, I think it is pertinent to give brief facts of this case which culminated into this appeal. The present appellant and one other co-accused name, Rt. Hon Adeyemi Sabit Ikuforiji were arraigned before the Federal High Court (the trial Court) and tried on a 54 count amended charge. The appellant and the said Adeyemi Ikuforiji stood the trial as 2nd and 1st accused person respectively on the allegation that both of them at various time accepted various payments without going through a financial institution from the Lagos State House of Assembly, a sum of money which were allegedly above the amount authorised, as prescribed by the provisions of Sections 1 (a) of the

Money Laundering (Prohibition) Act 2004 and the Money Laundering (Prohibition) Act 2011. By the amended charge filed against them by the prosecution now respondent, counts 2 – 49 were offences, contrary to the provisions of Money Laundering (Prohibition) Act 2004 while counts Nos. 1, 50 to 54 were brought pursuant to Money Laundering (Prohibition) Act 2011. Both accused persons pleaded not guilty to all the 54 counts.

During the trial, the prosecution/respondent called two witnesses namely PW1 (Adebayo Adeniyi Oluwaseun) an investigator from EFCC and PW2, (Adewale Taiwo Olatunde), a former clerk to the Lagos State House of Assembly from 7/7/2007 to 28/9/2011, through whom Exhibits 1-1, P-2, P-3, P-4, P-5. P-6 were tendered. After their testimonies, the prosecution closed its case.

On 23/6/2014, the prosecution/respondent, pursuant to Section 286 of the Criminal Procedure Code and Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended, filed an application praying the trial Court to hold that the charge was incompetent and also made a No case submission that the prosecution had failed to make a prima

facie case against them and urged the trial Court to discharge the appellant herein. On 26/9/2014, the trial Court delivered its ruling on the No Case Submission, wherein, it held that prima facie case was not made out against the appellant and it finally discharged the appellant. Miffed by the ruling of the trial Court discharging the appellant on the ground that no prima facie case was made against him by the prosecution, the respondent successfully appealed to the Court of Appeal, Lagos division (Lower Court) which set aside the trial Courts ruling and held that the evidence presented by the respondent at the trial Court had disclosed that prima facie case was made against the appellant, hence it set aside the trial Court’s ruling and order of discharge made by the trial Court in favour of the appellant and it remitted the case to the trial Court for it to be heard de novo by another judge of that Court.

Aggrieved by the order made by the Lower Court, the appellant filed an appeal before this Court and raised four issues for the determination of the appeal in his brief of argument. The respondent herein, upon being served with the appellant’s

brief formulated three issues for the determination of this appeal in its brief of argument.

I have very closely and dispassionately considered all the issues for determination raised by both parties in this appeal. To my mind, the fulcrum of this appeal simply revolves on whether the prosecution had really made out a prima facie case against the appellant. It should be stressed that at the stage of No Case Submission, only one side of the divide was put on the table, since the other party was yet to present his/its defence. The trial Court before which the one party’s evidence was presented was therefore at that stage, not allowed to evaluate the evidence before it or to form an opinion whether the evidence so far adduced before it was believable, or not. In that regard, the issue of disbelieving or believing does not arise. It is therefore my humble view, that the only issue that calls for determination is the fourth issue raised in the appellant’s brief of argument which also tallies with the third issue proposed in the respondent’s brief of argument. In the present circumstance, it is my resolve that this appeal can at best be conveniently

resolved when it is approached through the fourth issue raised in the appellant’s brief only. If that is done, the need to treat the other three issues raised by the appellant would be futile as it may be pre-emptive of or may affect the result of the order I may make presently. I shall therefore in determining this appeal, consider the fourth (4th) issue only. Now even at the peril of being repetitive, I will still reproduce the said issue here under which reads thus:-
“Whether the Court of Appeal was right in holding that the respondent has made out a prima facie case to warrant the Appellant to enter a defence to the charge (Distilled from Ground 9).

The respondent’s issue No.3 in its brief as I said supra, is similar to the above issue save slight difference in the wording used in couching it.

The learned Appellant’s counsel submitted on this issue, that a glance at the evidence of the prosecution witnesses clearly shows that the respondent has failed in making a prima facie case to establish the offence of money laundering under Section 1 MLA 2011. He argued that pw1 is not the maker of any of the cash registered and therefore

reliance on the said cash register is subject to the provisions of Section 51 of the Evidence Act. He cited the case of OGUMA V IBWA (1988) 1 NWLR (Pt.73) page 658 at 679. He also submitted that the prosecution has presented no evidence to show that monies or cash above the sum of N5m or N10million naira was withdrawn or cashed as would warrant the appellant to enter a defence. He added that the prosecution must show by way of evidence that the parties involved in the alleged transaction are either individual or corporate bodies. He argued that the appellant is an agent of disclosed principal and unless the prosecution can show any evidence of conspiracy, the agent and the principal cannot be charged since the appellant is not the payee or beneficiary of the cash payment. He argued further that affirming the decision of the Lower Court will be making the appellant vicariously liable for the offence committed by people and government of Lagos State. He referred to the evidence of PW1 at page 1385 lines 4 – 9 of vol. 4 of the record and that of PW2 at page 1382 lines 8-16 and submitted that from these evidence, the appellant is being made to face a trial for an

offence committed by a body corporate, to wit, Lagos State Government. He cited the case of OGUNSOWOBO v. IGP (1995)WNLP 23 where it was held that the appellant could not be convicted for an offence which was capable of being committed by other people and the case of ADENIYI V. STATE (1992) 4 NWLR (Pt.160-261), where it was held that if any wrong decision is taken on behalf of a corporation, it is the corporation that is imputed to have done the wrong and, not the officer. He urged the Court to resolve this issue in favour of the appellant.

In his response to the above submission of the appellant’s learned counsel on this issue, the learned counsel for the respondent argued that the Lower Court was not right in holding that the respondent made out a prima facie case warranting the appellant to enter his defence. He submitted that a trial Court is not supposed to consider whether the evidence adduced by the prosecution is sufficient to justify conviction but rather, it should consider whether the prosecution had indeed made out a prima facie case requiring, at least some explanation from the accused person as regards his conduct or otherwise. He

cited the case of AJULU CHUKWU VS. STATE (2014) ALL FWLR (PT.749) 1045. Learned counsel for the respondent further submitted that the oral testimonies of the two witnesses called by the respondent/prosecution and the exhibits tendered strongly linked the appellant with the offence charged, necessitating him to enter or present his defence (if any). It was further submitted by the respondent’s counsel, that PW1 showed where the appellant collected cash payments which were in excess of the threshold under the Money Laundering (Prohibition) Act and that Exhibits P5, P6 and P6 T clearly showed that the co-accused and the appellant collected cash payment beyond the threshold from Lagos State House of Assembly without passing through the financial institution as contained in all counts. Learned counsel for the respondent concluded his submission on this issue by stating that throughout the testimony of PW1 at the trial Court, he remained consistent even during cross-examination that the bottom line and crux of the charge against the appellant/accused was basically on the fact of his accepting funds without going through financial institution exceeding the sums

prescribed by the Money Laundering (Prohibition) Act.

From time immemorial, it has been a principle in our criminal justice System, that an accused person is always presumed/innocent until proved guilty. Any person accused of committing an offence is presumed to be innocent unless proved otherwise through credible and reliable evidence adduced before a Court of law before which he is arraigned, tried and convicted. In order to obtain conviction, the prosecution must always prove the offence against an accused beyond reasonable doubt. (See Section 138 of the Evidence Act 2011 as amended). See also the case of Odu v State (2001) 10 NWLR (Pt.722) 688.
However, at the close of the case of the prosecution, the defence is at liberty to make a “No Case Submission. Where such submission is made, it postulates that evidence was not led by the prosecution in support of all or any of the essential ingredients of the offence charged. In such situation, the trial Court is bound to discharge the accused person since to refuse to do so, will breach the constitutional requirement that the prosecution always had the burden to prove the accused persons

guilt, rather than the accused proving his innocence. It is trite law, that a submission of ‘No Case to answer could only be properly made and upheld in the following circumstances;
(a) Where there is no evidence led by the prosecution to prove an essential element of the offence charged, and/or
(b) When the evidence led by the prosecution has been discredited during cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal could safely convict on it.
See IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 SCNLR 99; ADEYEMI V. STATE (1991) 6 NWLR (PT.195) 1; OWONIKOKO VS. THE STATE (1990) 7 NWLR (PT.162) 381.

on the facts.
Similarly, it is not the duty of the trial judge to at that stages, weigh and evaluate evidence or to decide who is telling the truth or not. It also should not conclude that what the prosecution adduced was unreliable. See EMEDO v STATE (2002) 7 SCNJ 226; R V. BAKER (1977) CR APPR 287; BELLO vs THE STATE (1967) NMLR 1.

In the light of what I have highlighted above, I think it will not be out of place to closely look at the evidence adduced by the prosecution through its two witnesses and the exhibits tendered in order to determine whether the Lower Court was correct in its conclusion that a prima facie case was made out against the appellant as opposed to the conclusion arrived at by the trial Court in doing so. My lords, permit me to adopt the definition of the phrase “prima facie” per the great jurist Nnamani JSC (of blessed memory) in the case of DURU V. NWOSU(1989) 1 NWLR (Pt.113) 24 at 43, where His Lordship in defining the phrase prima facie stated thus:-
“It seems to me the simplest definition is that which says that there is ground for proceeding. In other words, that something has been produced to make it

worthwhile to continue with the proceedings. On the face of it, it suggests that the evidence produced so far indicates that there is something worth looking at.”

Now, closely and dispassionately looking at the testimonies of PW1 and, PW2 and of course, the exhibits tendered at the trial against the appellant, the underlisted considerations were brought to fore which border on or relate to the essential ingredients of Sections 1 and 15 of the Money Laundering (Prohibition) Acts of 2004 and 2011 respectively. These points or pieces of evidence/ingredients are as Follow:-
(1) That the accused person now appellant, made or accepted cash payment above N500,000 even though he is an individual and not a body corporate.
(2) That the cash payment was not made through a financial institution.
(3) That the accused is an individual and not a body corporate.

These pieces of evidence to my mind breached the provisions of MLA 2011.

There has been no indication that the above pieces of evidence were discredited or challenged during cross examination. In this regard, I feel that the interest of justice demands that the accused/appellant

should have been called upon by the trial Court to give some explanations by way of defence since these aspects of the testimonies of the prosecution witnesses are relevant and also relate to some essential ingredients of the offences he was charged with or accused of committing. Also the contents of the exhibits tendered at the trial, would certainly require some sort of explanation by the appellant as I am unable to see in the testimonies of the two witnesses, any material contradiction either.

Thus, in the light of all that I have posited above, I am of the firm view that the evidence adduced by the prosecution at the trial Court made out a prima facie case as would warrant the appellant to be called upon to enter his defence. I affirm the decision of the Lower Court which set aside the Ruling of the trial Court. I therefore adjudge this appeal as unmeritorious and it is accordingly dismissed by me. I approve and endorse the Lower Court’s order that the case be remitted to the Chief Judge of the Federal High Court for for it to be re-assigned to another Judge for purpose of being heard de novo by any judge of that

Court other than Buba J. Appeal dismissed. Retrial ordered.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of a preview of the leading judgment of my learned brother, Sanusi, JSC just delivered. I agree with his Lordship that the appeal has no merit.

Briefly the facts are these.
Mr. A.S. Ikuforiji, the former speaker of the Lagos State House of Assembly and the appellant, his personal Assistant, were charged before a Federal High Court (Lagos Division) on a 54 count amended charge filed on June 7, 2013. It was alleged that both of them at various times accepted cash payments from the Lagos State House of Assembly without these payments going through a financial institution as prescribed by the provisions of Section 1(a) of the Money Laundering (Prohibition) Act, 2004 and the Money Laundering (Prohibition) Act, 2011.

The appellant entered a plea of not guilty to all the counts. In proving its case, the respondent called two witnesses and tendered several exhibits, then closed its case. The appellant made a no case submission. The learned trial judge upheld the no case submission and discharged the accused, appellant

holding that a prima facie case had not been made out against the appellant. Dissatisfied with the Ruling of the trial judge, the respondent filed an appeal. The appeal was heard by the Court of Appeal, (Lagos Division).

The Court of Appeal upset the Ruling of the trial Court in these words:
“In the result, the Ruling of the Federal High Court Lagos in charge No. FHC/L/422C/2011. Federal Republic of Nigeria v. RT Hon. A.S. Ikuforiji and Anor……., delivered by Buba J , on 26 September, 2011 in which the respondent’s no case submission was upheld and the respondent discharged is hereby set aside. Consequently, charge No.FHC/L/422C/2011: Federal Republic of Nigeria v Rt. Hon. A.S. Ikuforiji & Anor is hereby remitted to the Hon. Chief Judge of the Federal High Court for reassignment to any other judge of Federal High Court, other than Buba J, for expeditious hearing and determination do novo.

Section 286 of the Criminal Procedure Act states that:
286. If at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the

Court shall, as to that particular charge discharge him.
After the prosecution closes its case the defence has two options.
(a) to open his defence, or
(b) submit that there is no case to answer.
At the close of the respondent’s (prosecution’s) case in trial Court, learned counsel for the appellant exercised the second option (i.e. (b) above).
A submission that there is no case to answer is properly made and upheld by the trial Court.
(i) When there has been no evidence to prove an essential element in the offence.
(ii) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Court could safely convict upon it.
Whether or not the Court believes the evidence does not arise, neither is the credibility of the witnesses in issue at this stage.

If a Court might convict on the evidence so far presented before it, then there is a case to answer or the prosecution has made out a prima facie case against the defendant. Prima facie means a fact presumed to be true until disproved. Proceedings should continue to enable the defendant

disprove evidence already led against him. There is a prima facie case if the evidence adduced by the prosecution is such that if uncontradicted and if believed by the Court, it will be sufficient to prove the case against the accused person beyond reasonable doubt.
So when the prosecution presents facts which are unchallenged and unexplained by the accused person then a prima facie case has been made out against the accused person. He has a case to answer. See
Daboh v. State (1977) 5 SC P.197
Bello v. State (1966) 1 ALL NLR P.223
Mumuni v. State (1975) 6 SC P.79
Ajuluchukwu v. State (2014) 6 6 SC (Pt.iv) p.91
Uzoagba & Anor v. C.O.P. (2012) 11 SC P.100
Ugwu v. State (2012) 12 SC (Pt.ii) p.70

This Court is to decide if the Court of Appeal was correct or wrong. This entails finding out whether the prosecution led evidence to prove an essential element in the offence.

The appellant was charged for accepting cash payments from the Lagos State House of Assembly above the specified threshold without going through a financial institution contrary to Section 1(a) and punishable under Section 15 (2) (b) of the

Money Laundering Prohibition Act, 2004 and the Money Laundering (Prohibition) Act, 2011 . Section 1 reads:
1. No person or body corporate shall except in a transaction through a financial institution make or accept cash payment of sum exceeding –
(a) N500,000, or its equivalent, in the case of an individual; or
(b) N200,000,000.00 or its equivalent in case of a body corporate.
The essential elements of the offence are:
1. The appellant accepted cash payment above N500,000.
2. The appellant did not receive the cash payment from a financial institution.
3. The appellant is a natural person.

What is the evidence led by the respondent (prosecution) that proves the above.

The testimony of PW1, PW2 and exhibits tendered show that the prosecution has led evidence to prove essential element in the offence. The evidence of the prosecution was not discredited by cross-examination. The appellant is expected to explain or defend himself. If he does not defend himself, the evidence led by the prosecution would remain unchallenged and unexplained, and a prima facie case has been made out against the appellant. On these facts, a submission of no case to answer cannot be

sustained since a prima facie case has been made out against the appellant.

The trial Court was wrong, while the Court of Appeal was right to rule that a prima facie case was made out against the appellant.

For these brief reasons as well as those more fully given by my learned brother, Sanusi, JSC, I would dismiss the appeal and abide by the orders proposed by my learned brother Sanusi JSC.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Amiru Sanusi JSC and to register that support I shall make some remarks.

This is an appeal brought by the appellant who was the respondent at the Court of appeal, Lagos Division against the judgment of the Court of Appeal or Court below delivered on 4th November, 2016. The Court below had set aside the decision of the trial High Court, Ikoyi which had upheld the appellants No case submission,

The brief background fact are stated hereunder:-
The appellant and one Hon. Adeyemi Sabit Ikuforiji (“1st accused” at the trial Court) stood trial before the Federal High Court on a 54 amended count charge dated 4th June

2013 for accepting various cash payments above the threshold set by the Money Laundering (prohibition) Act 2004 (“MLA 2004”) and Money Laundering (prohibition) Act 2011 (“MLA 2011″) without going through a financial institution. The respondent called two witness and tendered EXHIBITS P1 to P6. After the close of the respondents case, the appellant made a no case submission which was upheld by the learned trial judge.
Dissatisfied with the ruling, the respondent appealed to the Court of Appeal via Notice of Appeal dated 21st October, 2014. In a well considered judgment delivered on 4th November, 2016, the Court of Appeal set aside the decision of the trial Court and held that the respondent made out a prima facie case against the appellant requiring the appellant to enter his defence.
It is from the decision of the Court of Appeal that the appellant has appealed to this Honourable Court via a Notice of Appeal dated 17th January, 2017.

On the 11th day of October, 2017 date of hearing, learned counsel for the appellant, Oludele Adegboyega Adeogun Esq., adopted the brief of argument filed on 13th March, 2017 and a reply brief filed on 6th

October, 2017 and deemed filed on 11th October, 2017. He distilled four issues for determination which are as follows:-
1. Whether the Court of Appeal was right in evaluating or re-evaluating the evidence adduced by parties before the trial Court when there is no appeal against the finding of facts made by the trial Court or where the appeal thereto has been abandoned. ( Distilled from ground 3, 4, and 8 of the Notice of Appeal).
2. Whether the Court of Appeal was right in holding that Section 1 of the Money Laundering (prohibition) Act 2004 and 2011 creates a strict liability offence. (Distilled from grounds 5 & 6 of the Notice of Appeal).
3. Whether the Court of Appeal was right in holding that proliferation of issues from the grounds of appeal is more technical rule rather than fundamental rule. ( Distilled from grounds 1 & 2 of the Notice of Appeal.
4. Whether the Court of Appeal was right in holding that the respondent has made out a prima facie case to warrant the appellant to enter defence to the charge. (Distilled from ground 9).

E. E Iheanacho Esq., of counsel for the respondent

adopted its brief of argument filed on 27th September, 2017 and deemed filed on the 11th day of October, 2017. In it were formulated three issues for determination of the appeal which are thus:-
i. Whether the Court of Appeal was not right in holding that Section 1 of the Money Laundering (prohibition) Act 2004 and Section 1 of the Money Laundering (prohibition) Act 2011 created strict liability offence (distilled from grounds 5 & 6 of the Notice of Appeal).
ii. Whether the Court of Appeal was not right in holding that issue 5 as formulated by the respondent was valid after striking out respondent’s issue 2 which distilled solely from ground 6 not withstanding that issue 5 was distilled from ground 6, 12, 13 and 14 of the Notice of Appeal. ( Distilled from Grounds 1 and 2 of the Notice of Appeal)
iii. Whether the Court of Appeal was not right in holding that the respondent made out a prima facie case warranting the appellant to enter his defence. (Distilled from Grounds 3, 4, 7, 8 and 9 of the Notice of Appeal).

I shall restrict my comments on Issue No. 4 of the appellant which is almost the same as Issue No. 3 of the<br< p=””

</br<

respondent.

ISSUE 4
Whether the Court of Appeal was right in holding that the respondent has made out a prima facie case to warrant the appellant to enter a defence.

Canvassing the stand of the appellant, Mr. Adeogun of counsel contended that the offence for which the appellant was charged is a strict liability offence and that it has the power to review the findings made by the trial Court when there is no appeal. That in deciding whether a pima facie case had been made out or not, the Court will look at the evidence of the prosecution.

That the unchallenged evaluation of the trial Court regarding the evidence of PW1 is that the evidence conveyed nothing and was highly unreliable. Also that the Court of trial had found that PW2’s evidence under cross-examination constituted an admission against the prosecution and the facts admitted needed no proof.

It was further submitted that a look at the summary of the evidence of the prosecution witnesses show that the respondent had failed in making a prima facie case to establish the offence of money laundering under Section 1 of the Money Laundering Act, 2011. That from the evidence of PW1

and PW2 that evidence led had failed to disclose any allegation of crime against the appellant. He cited Fagoriola v FRN (2013) 17 NWLR (Pt.1383) 322.

That the prosecution had provided no evidence to show that monies or cash above five million naira for an individual or ten million naira in the case of a corporate body to warrant appellant to enter a defence under Section 1 of Money Laundering Act (MLA).

For the appellant, it was further submitted that the prosecution must show by way of evidence that the parties involved in the alleged transaction are either natural persons or corporate bodies or entities. Also that both the evidence led and the findings of fact by the trial Court show that the appellant was charged in his official duties and functions and there is no evidence before the Court that appellant is a beneficiary of the cash payment. That the appellant is an agent of a disclosed principal and unless the prosecution can show clearly evidence of conspiracy, the agent and the principal cannot be charged together. The cases of Niger Progress Ltd. v. N.E.L. Corporation (1989) 3 NWLR (Pt.107) 68; Khonam v John (1939) 15 NLR 12 were

relied on; See also Sule v State (2009) 17 NWLR (Pt.1169) 33.

That from the evidence the appellant is being made to face a trial for an offence committed by a body corporate to wit, Lagos State House of Assembly. He cited Ogunsowobo v. IGP (1755) WNLR 23; Adeniji v. State (1992) 4 NWLR (Pt. ) 160 – 261.

Learned counsel for the appellant concluded by stating that the prosecution faired to prove the essential ingredients of the offence for which the appellant was charged. He cited Okoro v. State (1988) 5 NWLR (Pt.94) 255 at 277; Ajidagba v. IGP (1958) 3 FSC 5.

For the respondent, Mr. Iheanacho of counsel submitted that the Lower Court was right to interfere with the evaluation of evidence done by the trial Court as the trial Court had not made its findings based on the demeanour of the respondents witnesses. Also that the findings were perverse and not based on the evidence available. He cited Ezekwesili v. Agbapuonwu (2003) 9 NWLR 1657 (SC) at 18 – 19.

It was further submitted by the respondent that it is settled law that the stage when a no case submission is made, the trial Court is not called upon to express an opinion on the

evidence before it. The credibility of the witnesses is not in issue at this stage also. That what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution or to write a lengthy judgment. All that the Court is required to do is to determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged. He cited the cases of Tongo v C.O.P. (2007) 12 NWLR (Pt.1049) 525; Ekwunugo v. FRN (2008) 15 NWLR (Pt.1111) 630; Ede Oko v. State (2017) LPELR – 42267 (SC).

Mr. Iheanacho of counsel for the appellant contended that employment is not one of the defences to a crime. That appellant did not fall within the categories of persons who enjoy immunity under Section 308 of the 1999 Constitution of the Federal Republic of Nigeria. That the fact that appellant committed an offence in the course of discharging his official responsibilities is no defence to an offence he committed thereof. Also that the Public Officers Protection Law does not avail a protection to the appellant. He referred to Yabugbe v. COP (1992) NWLR (Pt.234) 152 etc.<br< p=””

</br<

Learned counsel for the respondent stated on that the Self Accounting Law being relied upon by the appellant has not been shown to authorise the appellant to accept cash payment above the threshold set by Section 1 of Money Laundering Act 2004 and 2011 without going through financial institution. That the law is trite that a statute will not be allowed to be used as an excuse to justify illegality. That assuming without conceding that there was such a provision, the same is inconsistent with the MLAs which were validly made by the National Assembly and so the provision of Section 4 (5) of the Constitution of the Federal Republic of Nigeria 1999 applies. He referred to A. G. Ogun State v. Aberuagba (1985) 1 NWLR (Pt.3) 395.

The ruling that led to this appeal was a ruling on a No case submission and not a final judgment. It is now trite that at this stage, the trial Court is not called upon to express an opinion on the evidence before it and the credibility of the witnesses is not in issue at this point. What is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution or to write a lengthy judgment as what is<br< p=””

</br<

expected is a legally admissible evidence linking the accused person with the commission of the offence with which the accused is charged. I rely on Tongo v. COP (2007) 12 NWLR (Pt.1049) 525; Ekwunugo v. FRN (2008) 15 NWLR (Pt.1111) 630.
The trial Court had in upholding the No case submission based its findings on the oral testimonies and the documentary evidence. It has to be stated that evaluation of such evidence is no the exclusive preserve of the trial Court as the Court of Appeal is in as a good position as the trial Court to evaluate the documentary evidence led in the case and draw its own conclusions or render its own findings. This the appellate Court can do as long as the demeaour of the witness is not in issue or where the Court is called upon to choose one version of oral testimony as against the other by believing same. See Gonzee Nig. Ltd v Nigeria Educational Research & Development Council & 2 Ors (2005) 6 SC (Pt.1) 25 at 35; Chitra Knitting & Weaving Manufacturing Co Ltd v Akingbade (2016) LPELR – 40437 per Onnoghen JSC (as he then was).
It is a fact that the issue before the Court of Appeal was whether the trial Court

was right or wrong in upholding the No case submission and in its own decision the Court below reversed what the trial Court did. In doing that the Court below considered the elements of the offence charged, if the evidence led could establish them and if the evidence led by the prosecution was so discredited during cross-examination or not. Clearly in disturbing the ruling of the trial Court, the Court of Appeal was satisfied that the ruling proceeded from a perverse finding and the findings not based on what was on the record.
It follows that before the Court, armed with the materials that was before the two Courts below, this Court having that advantage of considering all before it and I see no way out of but to go along the path trod by the Court of Appeal, that the prosecution had indeed made out a prima facie case for which the accused/appellant should be called upon to enter his defence. See Obidike v The State (2014) LPELR – 22590 SC per Fabiyi JSC.

In conclusion and from the foregoing along with the fuller reasoning in the lead judgment I see no merit in this appeal which is dismissed. I abide by the consequential orders made.

<br< p=””

</br<

OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Amiru Sanusi, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is lacking in merit and should be dismissed. I too will dismiss the appeal.
Appeal dismissed.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment just delivered by my learned brother Sanusi, JSC. I agree that the appeal lacks merit and a retrial order should be appropriate.

The Lower Court in the appeal herein set aside the ruling of the trial Court which upheld the appellant’s No case application and ordered a retrial. One of the issues formulated by the appellant before us is:
Whether the Lower Court was right in holding that the respondent made out a prima facie case against the appellant to warrant his entering his defence to the charge.

A prima facie case means that there is ground or reason for the Court to proceed with the trial and that the evidence has disclosed an allegation which if uncontradicted and believed will be sufficient to prove the case.

<br< p=””
</br<

The oral testimonies of the respondents two witnesses and the exhibits tendered strongly link the appellant with the offences charged and thus necessitating him to enter his defence.
The burden on the respondent at this stage is to prove the following elements:-
(1) That the accused made or accepted cash payment above N500,000.00 in the case of an individual and N2,000,000.00 in the case of a body corporate.
(2) That the cash payment did not pass through a Financial Institution.
(3) That the accused person is either an Individual or a body corporate.

Pw1 in evidence testified that they (the Investigation team) analyzed the documents and discovered that various amounts of money which were above the MLA as prescribed were collected in cash by appellant on behalf of 1st accused person.

The appellant was shown this discovery and he admitted to have collected the amount of money which he handed over to the 1st accused.

For all intents and purposes, my brother Sanusi JSC, has adequately dealt with all the issues raised in this appeal. I adopt his judgment as mine. With the few words of mine supra, and while relying on the

reasoning and conclusion arrived at in the lead judgment, I also rule that there is no merit in this appeal.

The Lower Court has rightly ordered for a trial to be made and the reason why I adopt the judgment of my learned brother and affirm the decision of the Court below. I abide also by all the orders made by my brother in the lead judgment.

Appearances:

Oludele Adegboyega Adeogun For Appellant(s)