Oyebode Alade Atoyebi V. Federal Republic Of Nigeria (2017)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
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
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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:-
- 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)
- Whether the Court of Appeal was right in
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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).
- 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)
- 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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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.
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
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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
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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
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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
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Court other than Buba J. Appeal dismissed. Retrial ordered.
SC.142/2017
