PAUL ONWUGHALU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13119(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 16th day of April, 2019
CA/L/631C/2018
JUSTICES
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
GABRIEL OMONIYI KOLAWOLE Justice of The Court of Appeal of Nigeria
Between
PAUL ONWUGHALU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
THE CONSTITUTIONAL RIGHT TO A FAIR HEARING
Perhaps, let me refer to the recent decision of the Apex Court in IFEANYI v FRN (2018) LPELR ? 43941 (SC), where the Court extensively considered the principles relating to right to fair hearing, and whether a charge must describe the offence in the words of the legislation. In the words of AKA?AHS, JSC at pages 49 to 55 of the Law Report:
?The right to fair hearing is a right guaranteed under the Constitution of the Federal Republic of Nigeria. Under this right, there are some constitutional safeguards put in place in furtherance of the right. Such safeguards are:- 1. The right against retrospective criminal legislation. (Section 36(8)). 2. The right not to be tried for an offence unknown to law (Section 36(12). Section 36(8) and (12) provides:- “36(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this Subsection, a written law refers to the Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law”. The two subsections reproduced above have received judicial interpretation in several cases amongst which are Aoko v. Fagbemi (1961) 1 All NLR 400 which was decided under the 1960 Constitution; Ogbomor v. State (1985) 1 NWLR (Pt. 2) 223 at 233 which was decided under the 1979 Constitution (as amended). The more recent decisions coming under the 1999 Constitution (as amended) are Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 and George v. Federal Republic of Nigeria (2014) 5 NWLR (pt. 1399). PER OBASEKI-ADEJUMO, J.C.A.
THE PURPOSE OF A CHARGE
The main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed such a charge will be good in law. See: Akang v. State (1971) NSCC Vol. 7. 55; Ozo V. State (1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565; Njoku v. State (1993) 6 NWLR (Pt. 299) 272; Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167?.?(Underlining Mine)
See also GEORGE v FRN (2013) LPELR ? 21895 (SC); OMATSEYE v FRN (2017) LPELR ? 42719 (CA). PER OBASEKI-ADEJUMO, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS
The law is well established beyond citing of authorities that it is the duty of the prosecution to establish the guilt of an accused person beyond reasonable doubt. Thus, for the prosecution to succeed in proving the guilt of an accused person for an offence under Section 7(3) of the AFF. The evidence adduced must satisfy the legal requirement of proof beyond reasonable doubt:-
1. That a financial institution had failed to exercise due diligence as specified in the Banks and Other Financial Institutions Act, 1991 (as amended) or the Money Laundering (Prohibition) Act, 2004;
2. That the failure to exercise due diligence is as a result of negligence, or regulation in the internal control procedures;
3. That the failure to exercise due diligence is in relation to the conduct of financial transactions;
4. That the financial transactions involve the proceeds of unlawful activity;
5. Specifically, and in relation to a charge brought under Section 7(3)(b) of the AFF Act, that the Accused person facilitates, contributes or otherwise is involved in the failure to exercise due diligence.
In the case of THE STATE v SALAWU (2011) LPELR ? 8252 (SC), the Supreme Court held that before a trial Court concludes that an offence had been committed by an accused person, the Court must look for the ingredients for the offence and ascertain critically that the acts of the accused come within the confines of the offence charged. See also ZHIYA v THE PEOPLE OF LAGOS STATE (2016) LPELR ? 40562 (CA). PER OBASEKI-ADEJUMO, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): By an amended Information dated 27th March, 2014, the Appellant was charged and arraigned on a four count charge inter alia of failure to exercise due diligence contrary to Section 7(3)(b) of the Advance Fee Fraud and Other Related Offences Act, No 14 of 2006. The Appellant was accused of confirming payment of the sum of Four Hundred and Fifty Million Naira into the account of two Union Bank Customers, Gona Bureau de Change and Jaxmine Bureau de Change; respectively facilitating the crediting and withdrawal of said sums of money by US Dollars, thereby authorizing payments without verifying the source of the deposits in the said account. Upon conclusion of trial, the lower Court, coram OGUNSANYA, J., in a well considered judgment delivered on 14th March, 2018, found the Appellant guilty and convicted the Appellant of the offence he was charged with. Dissatisfied with the said conviction, the Appellant filed a Notice of Appeal on 15th March, 2018 and same is hinged on seven grounds of appeal.
?In accordance with the practice in this Court, parties through their
1
respective counsel filed their briefs of arguments. Appellant?s brief of Argument is dated 5th July, 2018 and filed 6th July, 2018. It was settled by Oluseyi Sowemimo, SAN; Ade Adedeji, SAN; Obasanjo Fagbemi, Esq., (SGD), wherein four issues were settled for determination thus:
1. Whether the Defendant was charged with or convicted of an offence known to law and if so, whether all the elements of the said offence were proven?
2. Whether the learned trial judge was right in placing reliance on the undated Union Bank Plc. Manual Exhibit D1 when same did not comply with the requirements of Section 84 of the Evidence Act and did not contain any electronic signature whatsoever?
3. Whether the learned trial judge should have accepted the uncorroborated evidence of PW4 Alhaji Salisu Mati who being the beneficiary of the funds was a tainted witness?
4. Whether the conviction is correct having regard to the admissible evidence before the Court?
Respondent?s counsel, A. B. C. Ozioko, Head of Legal and Prosecution, Lagos, Economic and Financial Crimes Commission (EFCC) filed a Respondent?s brief of argument
2
dated 25th January, 2019. Three issues were formulated as follows:
1. Whether from the evidence before the lower Court, the provisions of Money Laundering Prohibition Act, 2011 and Banks and Other Financial Institutions Act, 2004, the Appellant exercised due diligence and/or was not negligent in the exercise of his duty as the Head of Operations at Union Bank Plc Head Office Branch at Marina, Lagos?
2. Whether the rights of the Appellant to fair hearing was breached when the Appellant was convicted pursuant to Section 7(3)(b) of Advance Fee Fraud and Other Related Offences Act No. 14 of 2006 for the Appellants? failure to exercise due diligence in his duty as the Head of Operations at Union Bank Head Office Branch?
3. Whether the lower Court relied on Union Bank Manual Exhibit D1 especially in arriving at its decision?
The Appellant also filed a Reply Brief of Argument dated 3rd December, 2018 and filed 4th December, 2018 but deemed 7th December, 2018
Having considered the grounds contained in the Notice of Appeal, issues formulated by counsel and the arguments canvassed vis–vis the judgment of the lower Court, I am of the firm
3
view that the issues formulated by the Appellant are apt for the determination of the present appeal. I shall therefore consider forthwith.
APPELLANT?S SUBMISSION
Appellant?s counsel referred to Section 7(3) and (6) of the Advance Fee Fraud and Other Related Offences Act, before submitting that it is necessary to read entire Act as a whole or at least, the entirety of Section 7 and construed strictly. It is the submission of counsel that in order to secure a conviction for an offence under Section 7(3), the prosecution must allege and prove (1) that financial transaction as defined in Section 7(6) of the Advance Fee Fraud and Other Related Offences Act has taken place; (2) That the financial transaction involve the proceeds of an unlawful activity as defined in Section 7(6)(f) and (h)(i) of the Act; (3) That the financial transaction took place as a result of negligence or regulation of its internal control procedures by a financial institution which fails to exercise due diligence as specified in Banks and Other Financial Institutions Act, 1991 as amended or the Money Laundering (Prohibition) Act, 2004 in relation to the conduct of
4
financial transactions; (4) That an officer of the financial institution, the Appellant, has facilitated, contributed or otherwise is involved in the failure to exercise due diligence as stipulated under the said section.
It is the submission of counsel that the only transactions within the purview of this Act are those that involve foreign monetary instruments and the Act requires that a financial institution must have its obligations as set out in either the BOFIA or the Money Laundering (Prohibition) Act, 2004 as a result of negligence or failure in its internal control procedures; it is only then that an officer of the Bank can be found guilty of any offence; that the purpose of the legislation is not to criminalise negligence in carrying out a bankers general duties but to criminalise violations of the BOFIA or the MLPA, by a financial institution which result in a money laundering transaction.
Learned counsel submit that the ingredients of the offence for which the Appellant is charged are manifestly different from the offence on the statute book, thereby offending Section 36(8) and (12) of the Constitution which provides that
5
no one may be charged and tried for any offence unless that offence is contained in a written law.
Appellant counsel argued that there is nothing in the charge that specifies that the due diligence provisions of either the Banks or Other Financial Institutions Act 1991 as amended or the Money Laundering (Prohibition) Act 2004 breached by the Appellant, nor did the prosecution deem fit to direct the lower Court to the specific provisions of the aforementioned Acts which imposes an obligation on the Appellant to do so. This in the view of Appellant Counsel is a fundamental defect in the charge as the Appellant has been forced to conduct his case waiting for the prosecution to direct him to the duty of care as specified in the afore mentioned Acts which he has breached.
?Appellant Counsel also argued that the charge against the Appellant does not contain any such reference and the totality of the evidence is that the Appellant authorised funds to be paid out of accounts which balances had been fictitiously inflated, how was he supposed to know that the account was fictitiously inflated, counsel argued also that the Appellant was not informed of the provision of the
6
Act that imposed on him the duty to know that the accounts were fictitiously inflated and neither was he referred to the section of the said Laws imposing the duty to verify the source of the deposits in the accounts.
Appellant counsel referring to the cases of RODA v FRN (2015) 10 NWLR (pt 1468) at 427, OLIEH v FRN (2005) ALL FWLR (pt 281) at 1746, (2007) NWLR (pt 1015) at 408, ASAKE V NIGERIA ARMY COUNCIL (2007) ALL FWLR (pt 396) at 737, posited that it is a cardinal rule of our jurisprudence that a person cannot be convicted of a criminal offence unless that offence is set down in a written law and the penalty specified thereof.
Appellant counsel relying on Section 7 (3) (a) & (b) of the Advanced Fee Fraud and Other Related Offences Act submitted that the purpose of this section is not to assist the financial institution to punish their staff who have been co-victims of fraud, rather its purpose is to punish primarily financial institutions and secondarily those of their officers who by failure to exercise due diligence, not just any type of due diligence but acts of due diligence as specified in the Banks or Other Financial Institutions Act
7
1991 as amended or the Money Laundering (Prohibition) Act 2004, and get themselves involved in a financial transaction which involves proceeds of unlawful activity as defined in the Act and thus without determining whether an offence has been committed by the principal offender it is impossible to hold the Appellant liable as an accessory. Thus the liability of the Appellant only arises out of his having contributed, facilitated or otherwise being involved in the failure of the bank to exercise due diligence.
Counsel also note that the financial transaction as contemplated by the Act is one that involves foreign currency, and from the evidence of PW2 it was a different officer of the bank that debited the naira from the bank account and paid foreign currency to the customer.
Counsel also submitted that the prosecution proved none of the ingredients of the offence that the Appellant was charged with and urged this Court to find that the Appellant was convicted of an offence unknown to law and discharge and quash the conviction of the Appellant on this ground.
?On the second issue Appellant counsel submitted that in coming to the conclusion that
8
the Appellant committed the offences with which he was charged the learned trial Judge placed reliance on the Union Bank of Nigeria PLC Anti-Money Laundering/Countering the Financing of Terrorism Manual i.e Exhibit D1. Relying on the cases of KUBOR v DICKSON [2013] 4 NWLR [PT 1345] at 534; OMISORE v AREGBESOLA [2015] 15 NWLR [PT 1482] at 205, and submitted the said Exhibit D1 does not comply with the requirements of Section 84 of the Evidence Act 2011 and does not contain any electronic signature as required by Section 93 of the Evidence Act 2011 and urged this Court to expunge same from the records as this is a just and proper exercise of the rule.
?On the third issue Appellant Counsel submitted that the only evidence before the learned trial Judge as to the events that took place on the 9th of January 2013 between PW4 and the Appellant are the said parties and the owner of Jaxmine Bureau De Change who was not called to give evidence. The other three prosecution witnesses gave evidence on the basis of what they were told by the said parties and neither PW1, PW2 and PW3 named the source of their information and asked this Court to find that the evidence
9
of PW1, PW2 and PW3 should have been rejected by the learned trial Judge as hearsay evidence. Counsel also submitted that the evidence of PW4 should have treated by the Court with utmost suspicion and should have been regarded as a tainted witness on the account of his testimony. Counsel relied on the cases of ODOGWU v STATE [2013] 14 NWLR [PT 1373] at 74, EGWUMI v STATE [2013] 13 NWLR [PT 1372] at 525 in making the above submission.
On the fourth issue, Appellant counsel submitted that the learned trial judge erred when he found that the prosecution had proven any of the ingredients of the offences for which the Appellant is charged. He argued that had the trial judge carefully considered the contradictory evidence of the prosecution witnesses and pondered over the questions raised by the Appellant counsel at the trial, he would have found it very easy to come to the conclusion that the Appellant herein was at best an innocent co-victim of a fraud. Appellant counsel thus urged this Court to find that the conclusion reached by the learned trial judge were unsupported by the legally admissible evidence before the Court, the conclusions reached were
10
unsupported by evidence and none of the elements of the offence as set out in Section 7(3)(b) of the Advanced Fee Fraud and Other Related Offences Act were established before the Court.
On the first issue formulated, Respondent counsel opined that it was not in dispute from the testimony of the Appellant and all the prosecution witnesses on record that the sum of N450,000,000.00 [Four Hundred and Fifty Million Naira] in the account balances of Jaxmine Bureau de change ltd and Gona Bureau De Change ltd as reflected in Exhibits D2 and D4 respectively are fictitious and fraudulently posted as the balances in the said accounts when there are no such monies in the said accounts.
Respondent counsel submitted that the Appellant ought to have inquired into the origin of the funds and whether the balances in the respective accounts of Lawal Abubakar of Jaxmine Bureau De Change and Alhaji Salisu Mati of Gona Bureau De Change when the duo approached him that they were expecting N450,000,000.00 [Four Hundred and Fifty Million Naira]
?Respondent Counsel further stated that the Appellant should have been placed on alert by the volume of money which is in excess
11
of N10,000,000.00 [Ten Million Naira] that the Appellant had a statutory duty to make a report to the EFCC under Section 10 of the Money Laundering [Prohibition Act] 2011.
In response to the Appellant?s argument in issue one of the Appellant?s brief Respondent counsel argued that the objective of requesting the Appellant to authorise any transaction in excess of N50,000.00 [Fifty Thousand Naira] will be defeated if as the Appellant argued in his brief, the Appellant was not required to look into the details of every transaction of such threshold.
Respondent counsel submitted that Section 7(3)(b) of the Advanced Fee Fraud Act 2006 imposed an obligation on the Appellant to ?exercise due diligence as specified in the Banks and Other financial Institutions Act 1991 or the Money Laundering [Prohibition] Act 2011 [as amended] in relation to the conduct of financial transactions. Relying on the case of GAMBARI v IBRAHIM [2010] ALL FWLR [PT 595], Respondent counsel defined the word diligence to mean conscientious in paying proper attention to a task given the degree of care required in a given situation.
12
Relying on Section 6 of the Money Laundering [Prohibition Act] 2011 as amended Respondent counsel submitted that the 13 transactions in excess of N300,000,000.00 [Three Hundred Million Naira] and the 7 Transactions in excess of N250,000,000.00 [Two Hundred and Fifty Million Naira] in respect of customers who have never recorded half of those kind of transactions in their banking history with the bank are of frequencies which are unjustifiable or unreasonable. The Respondent counsel further submitted that transactions in excess of and contrary to known transaction patterns are of purchasing foreign currency of a customer is inconsistent with the known transaction pattern of the account to warrant suspicion.
The Respondent counsel also submitted that Section 16 [1][c] of the Money Laundering [Prohibition] Act imposed a direct obligation on the Appellant to comply with Section 6 [1] of the Act and made it an offence not to comply with the provisions of the said Act.
On the second issue, Respondent counsel relying on Section 7 [6] [c] [i] [ii] of the Advanced Fee Fraud and other Fraud Related Offences Act 2006 submitted further to the evidence before the trial Court that the
13
Appellant was involved in a financial transaction as defined Section 7 [6][c] of the Advance Fee Fraud and other Fraud Related Offences Act involving the movement of funds by wire or other means and the said transaction affects foreign monetary instruments of Pounds [GBP] and Dollars [USD$] if at all this requirement is not disjunctive.
Respondent Counsel also submitted that the alleged financial transactions involved the proceeds of an unlawful activity as defined in Section 7 [6] [f] and 7[6] [h] & [i] of the Advance Fee and Other Fraud Related Offences Act. Respondent counsel stated further that by Section 1[2] of the Act made it an offence for ?a person who by false pretense, and with the intent to defraud, induces any other person, in Nigeria or in any other country to confer a benefit on him or on any other person by doing or permitting to be done on the understanding that the benefit has been or will be paid for, commits an offence under this Act. Referring to Exhibit D6 at page 772 and 774 of the record of Appeal Respondent counsel stated that the Appellant admitted that ?he did not notice any
14
lodgment in the account of Jaxmine Bureau De Change and Gona Bureau De Change nevertheless with intent to defraud, he authorised transactions pursuant to which benefits where conferred on him on the aforementioned Bureau De Change in respect of the fraudulent balances totaling N900,000,000.00 [Nine Hundred Million Naira] in their respective accounts.
Respondent counsel further submitted that the foregoing financial transactions which in fact involved proceeds of an unlawful activity took place as a result of negligence in the internal control procedures which rendered Union Bank unable to exercise due diligence as specified under the Banks and other Financial Institutions Act, 1991 as amended or the Money Laundering[Prohibition] Act 2012. Respondent Counsel referring to page 569 and 810 of the record of appeal stated what the internal control procedures of Union Bank was from the testimony of the Appellant after Exhibit 4 was shown to him. In buttressing the import of a signed document Respondent counsel placed reliance on the case of TSALIBAWA v HABIBA [1991] 2 NWLR [PT 174] 461.
?Counsel submitted that it is thus beyond cavil that it
15
is part of the internal control of Union Bank to ensure that transactions above certain threshold pass through a stricter scrutiny and this control is the duty of the Appellant.
Respondent Counsel also argued that the appellant being an employee of the financial institution in this case facilitated, contributed or otherwise is involved in the failure to exercise due diligence as stipulated under the said section when he authorised the payment of N900,000,000.00[Nine Hundred Million Naira].
The Respondent counsel further posited that the unlawful activity was perpetrated against the treasury of Union Bank accordingly. Union Bank itself was the victim of the unlawful act.
He further submitted that it cannot be said that Union Bank perpetrated fraud on itself thus it is practicable to have indicted Union Bank of any offence. Respondent counsel further opined that this scenario was envisaged by the drafts man when it used word practicable in Section 10 [1] of the said Act thereby making the Appellant the principal offender. Respondent counsel also relied on the case of JUBRIL v FRN [2018] LPELR-43993.
?Respondent Counsel further argued that by
16
the provision of Section 7[3] and 11 of the said Act which provides for the restitution of the victim by the convict, in the instant case, the financial institution [Union Bank] is the victim of the alleged offence by one of its officers, if Union Bank was charged alongside the Appellant, it will be preposterous for the Court to order Union Bank to restitute itself and the question will be for which offence.
On the above premise the Respondent counsel submitted that the argument of the Appellant that it is only where a financial institution has failed to comply with such duties as imposed on it by the Act that its officers become liable is faulty and illogical and should be discountenanced by this Court.
Respondent Counsel relying on the case of NASU MULTIPURPOSE COOP SOCIETY OF THE FEDERAL POLYTECHNIC IDAH KOGI STATE & ANOR v GTB [2018] LPELR 4451 submitted that slips or errors in the judgment of the lower Court complained of by the Appellant is not enough to warrant this Court to set aside the decision of the Lower Court having regard to the indisputable fact that the provision of the law sought to be referred to in the said judgment are
17
indeed in existence in other sections of the law.
Respondent counsel relying on the case of BONIFACE ADONIKE v THE STATE [2015] LPELR-24281[SC], submitted thus that; assuming without conceding that the lower Court relied on the wrong section of the law in ascertaining the statutory duty and diligence expected of the Appellant in carrying out financial transactions whilst working in the Bank, in view of the extant provisions ofSections 6 [1], 10 and 16[1] [f] of the Money Laundering [Prohibition] Act 2011 as amended which was a written law that made provision for the said duty and expected due diligence in the performance of such duty, the conviction and sentence of the Appellant under Section 7[3] [b] of the Advanced Fee Fraud Act 2006 which made reference to the said Act cannot be faulted.
Counsel submitted that the Appellant had not demonstrated how he was misled as a result of reference of the lower Court to the Banks and Other Financial Institutions Act. And further that the Appellant was not convicted and sentenced under the Banks and Other Financial Institutions Act but was convicted under Section 7[3] [b] of the Advanced Fee Fraud Act 2006 for
18
negligence or lack or due diligence expected under the Money Laundering [Prohibition] Act 2011 as amended and the Bank and Other Financial Institutions Act 2004. It is thus fallacious to argue that the Appellant was convicted of an offence that was not in existence.
On the third Issue, the Respondent Counsel argued that the Union Bank manual was tendered without objection on the part of the Appellant and was thus admitted in evidence at the trial Court as Exhibit D1. The Respondent counsel submitted that no other reference was made to the said Exhibit D1 by the lower Court in its judgment save for the Court’s statement that the said Exhibit D1 is a manual to guard against Union Bank’s products and services from being used to launder proceeds of crime, and no reliance was placed by the lower Court in its judgment on the said Exhibit D1, despite the fact that the said Exhibit D1 contains copious provisions to place the Appellant on guard when conducting transactions on the accounts of Jaxmine Bureau De Change and Gona Bureau De Change.
Respondent Counsel also argued that the Appellant did not appeal against the ruling of the lower Court dated 9th
19
day of May 2014 admitting the Union Bank Manual as Exhibit D1. He argued further referring to the case of BANK OF THE NORTH LIMITED v YAU [2001] 5 SCNJ 168 at 183, that it is trite that any party aggrieved by any decision of a lower Court wrongly admitting or rejecting evidence must challenge by a separate ground of appeal such a decision and on that premise Respondent counsel submitted that such challenge cannot be effectively done through the omnibus ground of appeal or subsumed in another ground but through a separate ground of appeal.
Respondent counsel further submitted that assuming without conceding that there is an appeal against the said decision, the said Exhibit D1 complied with all the requirements for its admissibility.
In response to the Appellant counsels? argument that the said Exhibit D1 does not comply with the requirements of Section 93 of the Evidence Act 2011. Respondent counsel submitted that PW2 vividly showed the trial Court how the Appellant acknowledged Exhibit D1 with his signature. Referring to pages 516 and 699 of the records of appeal.
?The Respondent counsel also submitted that the uncontroverted evidence of
20
PW2 and Exhibit D1 satisfied the requirements of Section 93[3] of the Evidence Act 2011.
In response to the Appellant?s counsel argument that Exhibit D1 did not comply with Section 84 of the Evidence Act 2011. The respondent submitted that the first page of Exhibit D1 is a covering letter authored and signed by the group managing director of Union Bank Plc, and this letter was duly certified by the compliance unit of the bank as the true copy of the said document, and that where a document is not tendered as an electronically generated document, compliance with Section 84 of the Evidence Act becomes superfluous.
Relying on the authority of OSHO v APE [1998] 8 NWLR [PT 562] at 49, Respondent counsel argued and submitted that assuming without conceding that the said Exhibit D1 fails all the foregoing test of admissibility, Exhibit D1 is not within the class of documents that is not admissible at all under the Act and the Appellant having failed to object to the admissibility of the said Exhibit D1 when it was sought to be tendered, cannot be heard to complain on appeal.
?The Respondent Counsel further submitted with reliance placed on the case
21
of CHUKWUMA v FRN [2011] LPELR-SC.253/2007, thus; if at all this Honourable Court finds Exhibit D1 as an inadmissible document that can be expunged from the records of this Court, the judgment of the lower Court still remains unassailable in view if the fact that the judgment did not rely on the said Exhibit D1.
In response to the Respondent counsels? argument and submissions in issue one of the Respondent?s brief Appellant counsel argued that the Appellant was not charged or convicted by the lower Court for breach of any duty under Section 6[1] of the Money Laundering [Prohibition] Act, the essential particulars of this offence are not set out in the charge and as such there is no basis for the arguments of the respondent on this issue.
Appellant counsel submitted that, what was firmly established by documentary evidence in the Court below was that there was no deposit of funds in the sums claimed by the prosecution on the statements of account of the said customers on the 9th of January 2013, within the one month period prior to which PW2 maintained was all the Appellant needed to check, or since October 2012, when the Appellant resumed
22
at Union Bank Stallion House Marina Branch. Counsel referred to pages 24 and 134 of the supplemental records of appeal.
Appellant Counsel further argued that Section 6[2] of the Money Laundering [Prohibition) Act imposes a duty on a financial institution to report any unusual large deposits immediately and submitted that the Appellant was entitled to presume that the ordinary cause of business had been followed by Union Bank prior to his becoming head of operations at their Stallion House Marina branch head office. Appellant Counsel also submitted that both customers are licensed bureau de changes in the business of buying and selling currency, thus they also are like Union Bank Plc, designated as financial institutions by Section 25 of the Money Laundering [Prohibition Act]. Thus there is nothing unusual or suspicious about bureau de change wishing to buy dollars with moneys held by them in their accounts, indeed that is their normal course of business and transaction pattern, thus when their banker told them it did not have dollars to sell it was also normal for them to make transfer of the funds to other accounts in other banks to buy dollars.<br< p=””
</br<
23
Relying on the definition ?suspicious? in Section 25 of the Money Laundering [Prohibition] Act Appellant counsel submitted that there was no foundation for the Appellant to question the transactions as there was no new inflow of cash to the accounts apparent from the banks database, the submissions of the Respondent in this regard are an excursion into the realm of speculation.
In response to the Respondent counsel?s argument and submissions on the issue two of the respondent?s brief of argument, the Appellant counsel argued and submitted that Respondent Counsel?s argument that on a combined reading of Section 6[1],16[1] [c] & [f] the Appellant has committed a crime and should have his conviction affirmed and referral to Section 10 of the Advance Fee Fraud and Other Related Offences Act and Section 10 of the Banks and Other Financial Institutions Act to suggest to this Court that the Appellant can be found guilty of committing an offence under Section 7[3] [b] of the Advance Fee Fraud Act amounts to a concession by the Respondent that the Appellant was not charged with or convicted of an offence known to law. This is
24
because if that was the case at all he would need to follow his charge sheet and the judgment and demonstrate the offence[s] for which the Appellant was charged and convicted, but rather he urges this Court to go ahead and convict the appellant on grounds not put forward in the Court below and the particulars of which are to be found nowhere in the charge.
Appellant counsel also submitted that the only nexus between Section 6[1] of the Money Laundering [Prohibition] Act and the charges levelled against the Appellant in the Court below are the words without verifying the source of the deposit in counts 3 and 4 of the charge sheet. Counsel further argued that it is not contained anywhere in the charge sheet that the Appellant is accused of failing to seek information from the customer as to the origin and destination of the funds, the aim of the transaction and the identity of the beneficiary. There was also no indication on any of the charges that the aforesaid transactions were of unusual frequency of unjustifiable purpose or indeed any of the elements which are preconditions for triggering the duty under Section 6[1] of the Money Laundering
25
[Prohibition] Act nothing in the charge accuses the Appellant of failing to identify a suspicious transaction.
Relying on the case of AGUMADU v THE QUEEN [1963] 1 ALL NLR 203 and ADONIKE v STATE [2015] 7 NWLR [PT 1458] at 357. Appellant counsel submitted that it is a cardinal principle of the doctrine of fair hearing that the accused in a criminal trial be informed of the charges against him with specificity so that he knows what exactly he is accused of and be given opportunity to proffer evidence in his own defence.
Appellant counsel further argued and submitted that the prosecution did not prove in the Court below that the elements of the offence which they charged the Appellant. They have also not proven any of the new trumped up charges they seek to lay in the court of Appeal.
Appellant counsel also submitted that the Respondent did not charge or prove any breach by the Appellant of any of the elements of the duty set forth in Section 6[1]of the Money Laundering [Prohibition] Act, the Court below did not also find him guilty of breach of any particulars of the duty set forth in Section 6[1] of the Money Laundering [Prohibition] Act.
26
The Appellant was not given notice of any of the elements of the duty in Section 6[1] of the Money Laundering [Prohibition] Act.
Appellant counsel further submitted that Section 10 of the Advance Fee and Other Fraud Related Offences Act in its plain and ordinary English meaning creates a precondition for holding an employee liable under the said Act which is that an offence is proved to be committed by a corporate body. No offence under the Advance Fee and Other Fraud Related Offences Act has been alleged against Union Bank Plc the purpose of the draftsman in this section is clear, it is to prevent the use of corporate personality as a shield to commit offences.
Appellant counsel argued that the assertion that the Appellant was involved in a transaction that involved the proceeds of an offence under Section 1 of the Advance Fee and Other Fraud Related Offences Act fails to take into consideration the fact that it was the Appellant who was induced into releasing money to the customers in the mistaken belief that they had money in their accounts based on the unlawful interference with Union Bank Database which the Appellant was not involved in.
27
In response to the Respondent counsel?s argument that Section 16[1][c] & [f] operates to make the Appellant personally liable. The Appellant Counsel submitted that the offence created in Section 16[1] is punishable under Section 16[2] of the Money Laundering [Prohibition] Act and the appropriate Court to try such an offence is the Federal High Court by virtue of Section 20 of the Money Laundering [Prohibition] Act. This is more so because the accusation against the Appellant is negligence in his duties as an officer of a financial institution, a banking matter which is not matter between an individual customer and his bank, this offence is one ordinarily within the exclusive jurisdiction of the Federal High Court by virtue of Section 251 of the Constitution of the Federal Republic of Nigeria.
In Response to the Respondent Counsel?s arguments and submission on issue three in the Respondents brief, Appellant Counsel argued and submitted that ground 6 of the Appellant?s notice of Appeal with the particulars thereof which addresses the said document is based on Section 84 of the Evidence Act and lack of electronic signature as required by the Evidence Act.
28
Appellant Counsel also submitted that it is patently clear that the learned trial judge placed reliance on Exhibit D1 in arriving at his decision as it is only in the said Exhibit D1 that Bureau De Change operators were ever referred to as high risk customers throughout in the evidence of the prosecution.
RESOLUTION
The first complaint put forward by the Appellant is that he was convicted by the lower Court of an offence unknown to law. As I have earlier mentioned, the Appellant was arraigned before the lower Court on a four-count Criminal Information dated 27th March, 2014, principally on his alleged failure to exercise due diligence contrary to Section 7(3)(b) of the Advance Fee Fraud and Other Related Offences Act, No. 14 of 2006 (the ?AFF Act?).
Now Section 7(3) of the AFF Act provides as follows:
(3) When as a result of negligence, or regulation in the internal control procedures, a financial institution fails to exercise due diligence as specified in the Banks and Other Financial Institutions Act, 1991 as amended or the Money Laundering (Prohibition) Act, 2004 in relation to the conduct of financial
29
transactions which in fact involve the proceeds of unlawful activity.
(a) the financial institution commits an offence and is liable on conviction to refund the total amount involved in the financial transaction and not less than N100,000.00 sanction by the appropriate financial regulatory authority.
(b) a director, secretary, employee or other staff of the financial institution who facilitates, contributes or otherwise is involved in the failure to exercise due diligence as stipulated under this section, commits an offence and is liable on conviction to imprisonment for a term not less than three years and may also be liable to be banned indefinitely for a period of three years from exercising the profession which provided the opportunity for the offence to be committed.?
At 84 of the record of appeal is the Information containing the charges against the Appellant, and it reads in part:
?STATEMENT OF OFFENCE ? FIRST COUNT
Failure to exercise due diligence contrary to Section 7(3) of the Advance Fee Fraud and Other Related Offences Act, No. 14 of 2006.
PARTICULARS OF OFFENCE
Paul Onwughalu on or about the
30
8th of January, 2013 at Lagos within the Ikeja Judicial Division being an employee of Union Bank Plc failed to exercise due diligence in relation to conduct of financial transactions with one Gona Bureau De Change by confirming payment of the sum of N450,000,000 (Four Hundred and Fifty Million) fraudulently obtained by hacking into Union Bank?s database (flexcube) and transferring same to the account of one Gona Bureau De Change domiciled in Lagos and thereby facilitated the crediting and the withdrawal of the said sum from the said Gona Bureau De Change to various accounts in Access Bank Plc, Eco Bank Plc and Diamond Bank to buy US Dollars.
STATEMENT OF OFFENCE ? SECOND COUNT
Failure to exercise due diligence contrary to Section 7(3) of the Advance Fee Fraud and Other Related Offences Act, No. 14 of 2006.
PARTICULARS OF OFFENCE
Paul Onwughalu on or about the 8th of January, 2013 at Lagos within the Ikeja Judicial Division being an employee of Union Bank Plc failed to exercise due diligence in relation to conduct of financial transactions with one Jaxmine Bureau De Change by confirming payment of the sum of N450,000,000 (Four
31
Hundred and Fifty Million) fraudulently obtained by hacking into Union Bank?s database (flexcube) and transferring same to the account of one Jaxmine Bureau De Change domiciled in Lagos and thereby facilitated the crediting and the withdrawal of the said sum from the said Jaxmine Bureau De Change to various accounts in Access Bank Plc, Eco Bank Plc and Diamond Bank to buy US Dollars.
STATEMENT OF OFFENCE ? THIRD COUNT
Failure to exercise due diligence contrary to Section 7(3) of the Advance Fee Fraud and Other Related Offences Act, No. 14 of 2006.
PARTICULARS OF OFFENCE
Paul Onwughalu on or about the 8th of January, 2013 at Lagos within the Ikeja Judicial Division being an employee of Union Bank Plc failed to exercise due diligence in relation to conduct of financial transactions with one Jaxmine Bureau De Change by authorizing eleven transactions totaling N359,511,750 (Three Hundred and Fifty-Nine Million, Five Hundred and Eleven Thousand, Seven Hundred and Fifty Naira) from Union Bank Plc Account No 0036150994 belonging to Jaxmine Bureau de Change Ltd domiciled in Lagos without verifying the source of the Deposit in the account.
32
STATEMENT OF OFFENCE ? FOURTH COUNT
Failure to exercise due diligence contrary to Section 7(3)(b) of the Advance Fee Fraud and Other Related Offences Act No. 14 of 2006
PARTICULARS OF OFFENCE ? FOURTH COUNT
Paul Onwughalu on or about the 8th of January, 2013 at Lagos within the Ikeja Judicial Division being an employee of Union Bank Plc failed to exercise due diligence in relation to conduct of financial transactions with one Gona Bureau De Change by authorizing eleven transfer transactions totaling N433,050,700 (Four Hundred and Thirty Three Million, Fifty Thousand, Seven Hundred Naira) from Union Bank Plc Account No 0038045632 belonging to Gona Bureau de Change domiciled in Lagos without verifying the source of the Deposit in the account.?
Truly, our Constitution guarantees that no citizen of this country should be put through a criminal trial, convicted and punished over an alleged offence not created by any law and thus unknown to the laws of the land, but this safeguard will not be called in aid in a particular matter, where as in the instant case, an accused person was arraigned under a provision of
33
the relevant law, with the Criminal Information disclosing the offences and the necessary particulars to give notice of the allegations to the accused person. It is a different matter entirely, as visible argued by the learned Appellant?s counsel that the prosecution was unable to prove the guilt of the accused person under the provision in which he was charged with. Failure to prove the ingredients of an offence for which the Appellant is charged with, cannot by any stretch of imagination, translate to the fact that the offence is unknown to law.
Perhaps, let me refer to the recent decision of the Apex Court in IFEANYI v FRN (2018) LPELR ? 43941 (SC), where the Court extensively considered the principles relating to right to fair hearing, and whether a charge must describe the offence in the words of the legislation. In the words of AKA?AHS, JSC at pages 49 to 55 of the Law Report:
?The right to fair hearing is a right guaranteed under the Constitution of the Federal Republic of Nigeria. Under this right, there are some constitutional safeguards put in place in furtherance of the right. Such safeguards are:- 1. The right
34
against retrospective criminal legislation. (Section 36(8)). 2. The right not to be tried for an offence unknown to law (Section 36(12). Section 36(8) and (12) provides:- “36(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed. (12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this Subsection, a written law refers to the Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of the law”. The two subsections reproduced above have received judicial interpretation in several cases amongst which are Aoko v. Fagbemi (1961) 1 All NLR 400 which was decided under the 1960 Constitution; Ogbomor v. State (1985) 1 NWLR (Pt. 2) 223 at 233 which was decided under the 1979 Constitution (as amended). The more recent decisions
35
coming under the 1999 Constitution (as amended) are Federal Republic of Nigeria v. Ifegwu (2003) 15 NWLR (Pt. 842) 113 and George v. Federal Republic of Nigeria (2014) 5 NWLR (pt. 1399). This Court stated in Ogbomor v. State supra at page 233 that:- “……. As a result of the immunity from trial and conviction of a person with respect to an act or omission which at the time of its commission or omission did not constitute any offence under the law, no person can be so tried and convicted on it”? Before any person can be charged with an offence and convicted for the commission of that offence, there must be a written law which can be referred to. That law must be enacted by the National Assembly or by the State House of Assembly, or a law made by the Local Government Authority or bye-law which is made pursuant to another law. It is not enough that the written law should prohibit an act or mandate the performance of the act but must provide punishment for the transgression either in that law or another written law?
An indictment charging a statutory offence need not exactly track the statutory language provided it alleges the essential elements of
36
the crime charged. If the words of the statute do not unambiguously set out all the elements of the offence, the indictment must supplement the statutory language. An indictment may fail when there is a fatal variance between its allegation and the evidence introduced at trial. In order for a variance to be fatal it must pertain to an essential element of the crime charged. See: Federal Republic of Nigeria v. Daniel (2012) 4 NWLR (pt. 1289) 40. The main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed such a charge will be good in law. See: Akang v. State (1971) NSCC Vol. 7. 55; Ozo V. State (1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565; Njoku v. State (1993) 6 NWLR (Pt. 299) 272; Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167?.?(Underlining Mine)
See also GEORGE v FRN (2013) LPELR ? 21895 (SC); OMATSEYE v FRN (2017) LPELR ? 42719 (CA).
The law is well established beyond citing of authorities
37
that it is the duty of the prosecution to establish the guilt of an accused person beyond reasonable doubt. Thus, for the prosecution to succeed in proving the guilt of an accused person for an offence under Section 7(3) of the AFF. The evidence adduced must satisfy the legal requirement of proof beyond reasonable doubt:-
1. That a financial institution had failed to exercise due diligence as specified in the Banks and Other Financial Institutions Act, 1991 (as amended) or the Money Laundering (Prohibition) Act, 2004;
2. That the failure to exercise due diligence is as a result of negligence, or regulation in the internal control procedures;
3. That the failure to exercise due diligence is in relation to the conduct of financial transactions;
4. That the financial transactions involve the proceeds of unlawful activity;
5. Specifically, and in relation to a charge brought under Section 7(3)(b) of the AFF Act, that the Accused person facilitates, contributes or otherwise is involved in the failure to exercise due diligence.
In the case of THE STATE v SALAWU (2011) LPELR ? 8252 (SC), the Supreme Court held that before a trial
38
Court concludes that an offence had been committed by an accused person, the Court must look for the ingredients for the offence and ascertain critically that the acts of the accused come within the confines of the offence charged. See also ZHIYA v THE PEOPLE OF LAGOS STATE (2016) LPELR ? 40562 (CA).
With due sense of purpose and humility, in so far as the prosecution feels that the Appellant has ipso facto committed an offence under Section 7(3) of the AFF Act, it is incumbent as a matter of law that they establish the guilt of the accused person within the narrow compass of the section of the law in which he was charged with. While reaching the conclusion that the Appellant is guilty of the offence he was charged with, the learned trial judge had held at pages 817 to 821 of the record of appeal thus:
?The evidence of PW1, PW2, PW3 and PW4 which was not contradicted or controverted was that the Defendant owed a duty of care to PW4 and there was a contractual relationship between him and the bank and in performing his duty he failed to execute reasonable care and skill considering his banking experience and responsibilities as Head of
39
Operations. According to the Defendant, both Gona BDC and Jasmin BDC were High Category. Twenty-two transfers in two days to a reasonable man is an unusual activity that ought to put the Defendant on notice. The Defendant himself testified that he has been exposed to several trainings and several circulars had been circulated in the bank.
A transaction that is high in volume and frequency out to have been diligently executed. From the testimony of PW1, PW2, PW4 it is clear that PW4 usually went straight to the Defendant for approval and with his signature on the forms the other officers complied with orders without further inquiries.
The Defendant did not deny that his name was on Exhibit D1 so he had access to the manual and as Head of Operations he received mails from the Head officer on line but he denied receiving the manual. The Defendant himself that Jasmine BDC and Gona BDC were High risk accounts which must be kept under constant review before any transaction will be done on it.
Negligence implies a want of care as would be expected of a reasonable man to exercise in the circumstances. In this circumstance where PW4 had told the
40
Defendant that he was expecting money and he was yet to receive an alert the Defendant ought to have made more enquiries. Prudence demands that the Defendant ought to have asked where the money was coming from. In all the exhibits tendered such amount has never been deposited in the account of PW4 that could show a pattern of either deposit of such huge amount or withdrawal of such frequency.
The Defendant knew or ought to know the amount said to be in the account balance of PW4 was fictitious?
It is curious that the two accounts Dona BDC and Jasmine BDC were both expecting deposits for N450 Million. They both did not get alerts and they were with the Defendant on the same day at the same time what a coincidence!!! The two accounts also experienced large movement of money out of their accounts in two days.
The Defendant testified that both Alhaji Lawal and PW4 came to his office to confirm their balances. PW4 did not get alert and could not contact his account officer on phone so he had to go to the bank to confirm. He did not go to any other bank official but went directly to the Defendant.
The Defendant did not deny the fact that
41
both PW4 and Mr. Lawal related directly with him as the Head of Operations so he know both of them very well but failed to apply Banking Rules and Regulations in dealing with them.
The Court finds that the Prosecution has been able to prove beyond reasonable doubt by cogent credible and compelling evidence that the Defendant is guilty as charged?.?
I have earlier outlined the necessary ingredients that must be established by the prosecution in order to sustain a charge under Section 7(3)(b) of the AFF Act, and I shall consider forthwith whether the learned trial judge was right when he held that the prosecution led credible evidence to show that the Appellant is guilty as CHARGED.
Firstly, was the prosecution able to show that a financial institution had failed to exercise due diligence as specified in the Banks and Other Financial Institutions Act, 1991 (as amended) or the Money Laundering (Prohibition) Act, 2004? In my mind, the answer to this question is germane to the case of the prosecution because without establishing this element, the prosecution cannot sustain a charge against the Appellant under Section 7(3)(b). I have
42
meticulously gone through the entire evidence led through the prosecution witness and I am unable to see or find any shred of evidence to the effect that the relevant financial institution material to the instant case has failed to exercise due diligence as specified under the relevant Statutes. As a matter of fact, the evidence of the prosecution was centered upon the Appellant only. It remains to be said that Section 7(3) of the AFF Act primarily criminalized the failure on the part of a financial institution to exercise due diligence as per its responsibilities and/or functions under the BOFIA Act and the Money Laundering Act.
I am in agreement with the Learned Appellant?s Counsel that the purpose of the section is not to criminalize negligence in carrying out a banker’s general duties but to criminalize violations, to wit ? failure to exercise due diligence ? by a financial institution. In this case, there is nothing on record showing that Union Bank where the Appellant purportedly worked as Head of Operations has failed to exercise due diligence as required of it by the relevant statutes.
?While I have no doubt that evidence on
43
record shows that the failure to exercise due diligence is in relation to the conduct of financial transactions; also that the financial transactions involve the proceeds of unlawful activity; and further that the Accused person facilitates, contributes or otherwise is involved in the failure to exercise due diligence, I am unable to accept as well founded that the prosecution has proved its case under Section 7(3) of the AFF Act, when it was unable to lead any evidence that the relevant financial institution has failed to exercise due diligence.
Let me reiterate that the provision of Section 7(3) is peculiar and its purpose is to penalize financial institutions who failed to exercise due diligence. Unless and until it is shown that a financial institution has failed to exercise such due diligence, a charge against its officers or employees cannot be sustain under Section 7(3)(b). It is noteworthy that a charge under Section 7(3)(b) stands and falls on a charge under Section 7(3)(a). It is, in my firm view improper, as the prosecution as done in the instant case, to proceed against an officer of a financial institution under Section 7(3)(b) without first
44
establishing the first leg of that section. The manifest intention of the legislature, to me, in relation to Section 7(3) is to put financial institutions on their toes in the discharge of their statutory responsibilities will, and where they fail that regard, both the financial institution and the director, employee, officer or staff of such financial institution will be culpable.
In this case, nothing has been said in relation to the culpability of Union Bank, the relevant financial institution. On one hand, the prosecution witnesses found it convenient to state on record that the flexcube of Union Bank was hacked ? invariably exculpating from any wrongdoing under Section 7(3) ? but was quick to say that the Appellant failed to exercise due diligence in the discharge of its responsibilities as Head of Operation. Even the Respondent?s counsel thought it right to argue in the Brief of Argument that Union Bank is a victim in the circumstance. While I am not saying with any note of finality that the Appellant diligently carried out his duties or that he ipso facto exercised due diligence in relation to the transaction leading to the
45
present charge he is facing, I am unable to, with respect, accept as well founded, the proposition by the Respondent?s counsel that Union Bank Plc is a victim under the circumstance where a charge was brought against a staff of the Bank under Section 7(3) of the AFF Act.
It ought to be repeated that any conviction of an officer or employee of a Bank under Section 7(3)(b) of the AFF Act presupposes that the Bank has failed to exercise such due diligence expected of it under the BOFIA Act and the Money Laundering Act. Without that, such charge cannot be sustained. The bank must assume primary responsibility and culpability under a charge brought pursuant to Section 7(3) of the AFF Act, anything less than that will not be accepted. My view therefore, is that having failed to establish beyond reasonable doubt that Union Bank has failed to exercise due diligence in accordance to BOFIA Act and the Money Laundering Act, the case of the prosecution against the Appellant brought pursuant to Section 7(3)(b) of the AFF Act must fail and I stand firmly on the view that it has failed.
?On the basis of the foregoing, having failed to prove
46
Section 7(3), a charge under Section 7(3)(b) cannot stand on its own it must collapse. I find it needless to proceed to consider the other issues which in my view has become academic. I shall not waste the judicial time of this Court considering same.
As a result, I find merit in the Appellant?s appeal; it is hereby allowed. The conviction and sentence of the Appellant by OGUNSANYA, J., on 14th March, 2018 is hereby set aside. The Appellant is hereby discharged and acquitted.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.
GABRIEL OMONIYI KOLAWOLE, J.C.A.: I am in total agreement with the leading judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA. which I had read in draft.
I really do not have anything to add as the reasoning and conclusions reached are in my view, impeccable and in line with my understanding of the issues argued by both parties.
?The appeal for the reasons ably and comprehensively canvassed in the leading judgment of my learned brother, has merit and it ought to be allowed.
47
Appearances:
O. J. FagbemiFor Appellant(s)
A.B.C. Ozioko with him, Jay J. AmatuanFor Respondent(s)
Appearances
O. J. FagbemiFor Appellant
AND
A.B.C. Ozioko with him, Jay J. AmatuanFor Respondent
