3PLR – FEDERAL REPUBLIC OF NIGERIA V. JAMES ONANEFE IBORI & ORS

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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FEDERAL REPUBLIC OF NIGERIA

V.

JAMES ONANEFE IBORI & ORS

COURT OF APPEAL OF NIGERIA

ON THURSDAY, THE 15TH DAY OF MAY, 2014

CA/B/61C/2010(2)

3PLR/2014/69 (CA)

 

OTHER CITATIONS

(2014) LPELR-23214(CA)

BEFORE THEIR LORDSHIPS

IBRAHIM MOHAMMED MUSA SAULAWA, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

TOM SHAIBU YAKUBU, JCA

 

BETWEEN

FEDERAL REPUBLIC OF NIGERIA Appellants

AND

1. JAMES ONANEFE IBORI
2. UDOAMAKA OKORONKWO (Nee ONUIGBO)
3. CHIEDU EBIE
4. MER ENGINEERING NIG. LTD
5. BAINENOX LTD
6. SAGICON NIG. LTD Respondents

 

REPRESENTATION

Ibrahim Isiyaku, SAN with him Kayode Oni and Clement Izomon Esq. For Appellant

AND

K.E. Mozia SAN with him H. G. Erhabar, M. O. Ojogho, O. A. Aimiuwu and O. O. Erhahon For Respondent

 

MAIN ISSUES

CRIMINAL LAW AND PROCEDURE – CRIMINAL TRIALS: Enabling provisions for criminal trials in the Federal High Court

CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Duty of Court where a plea of no case to answer is raised on behalf of an accused person

CRIMINAL LAW AND PROCEDURE – QUASHING INDICTMENT OR CHARGE: Whether an indictment or charge may be quashed merely on the ground that it is doubtful that the prosecution could secure a conviction against the accused person

CRIMINAL LAW AND PROCEDURE – SUMMARY TRIAL: Meaning of summary trial

CRIMINAL LAW AND PROCEDURE – SUMMARY TRIAL/TRIAL ON INFORMATION: Distinction between trial on information and summary trial

CRIMINAL LAW AND PROCEDURE – TRIAL ON INFORMATION: What an information must contain

CRIMINAL LAW AND PROCEDURE – TRIAL ON INFORMATION: Position of the law where an accused person is not satisfied with the information attached to the charge in a summary trial

JURISPRUDENCE AND PUBLIC LAW- LEGISLATION – NIGERIAN MONEY LAUNDERING (PROHIBITION) ACT: Genesis of the Nigerian Money Laundering (Prohibition) Act

PRACTICE AND PROCEDURE – COURT – DISCRETIONARY POWER OF THE COURT: Whether the discretionary power of the Court must be exercised not only judicially but also judiciously

PRACTICE AND PROCEDURE – JURISDICTION – JURISDICTION OF THE FEDERAL HIGH COURT: Whether the Federal High Court has the jurisdictional competence to conduct all criminal trials summarily

PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – PERVERSE DECISION: Circumstances under which the decision of court will be said to be perverse

INTERPRETATION OF STATUTE – RULE OF INTERPRETATION OF STATUTE: Application of the Ejusdem Generis Rule

INTERPRETATION OF STATUTE – RULE OF INTERPRETATION OF STATUTE: Meaning of the term Ejusdem Generis

INTERPRETATION OF STATUTE – SECTION 14(1) & (2) OF THE MONEY LAUNDERING (PROHIBITION) ACT, 2004: Interpretation of the Money Laundering (Prohibition) Act, 2004 as regards offence punishable under the Act

INTERPRETATION OF STATUTE – SECTION 33 OF THE FEDERAL HIGH COURT & SECTION 251 (2) OF THE 1999 CONSTITUTION: Interpretation of Section 33 of the Federal High Court Act, CAP. Law of the Federation of Nigeria, 2004 and Section 251 (2) of the 1999 Constitution as regards the power of the Federal High Court with respect to criminal matters

INTERPRETATION OF STATUTE – “OR” AND “OTHER”: Interpretation of the words “or” and “other”

INTERPRETATION OF STATUTE – AIDS TO INTERPRETATION OF STATUTE: Attitude of Court in respect of explanatory (side) notes to statutes

WORDS AND PHRASES – “CHARGE”: Meaning of “charge”

WORDS AND PHRASES – “INFORMATION”: Meaning of “information”

MAIN JUDGMENT

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):

The instant appeal is a fall-out of the decision of the Federal High Court, Asaba, Delta State, which was delivered on December 17, 2009 in Suit No.FHC/ASB/1C/2009. By the decision in question, the Lower Court, Coram Awokulehin, J; quashed the 170 count charge filed by the Appellant against the Respondents. Consequent upon which, the Lower Court discharged and acquitted the Respondents. Not unnaturally, the Appellant was dissatisfied with the said decision of the Lower Court, thus filed the present appeal.

BACKGROUND FACTS:

The genesis of the present appeal is traceable to 13/12/07. That was the day the Respondents were initially jointly arraigned before the court below, sitting at Kaduna Judicial Division, upon a 103 count charge. However, the Respondents objected to the jurisdiction of the Lower Court to try them upon the count charge in question. By the considered ruling thereof, the Lower Court, Coram Shuaibu, J; (as he then was), declined to transfer the case to the Asaba Judicial Division of the Lower Court, where the offences were alleged to have been committed by the Respondents.

 

Dissatisfied with the said ruling, the Respondents appealed to the Kaduna Division of this court. At the conclusion of the hearing thereof, this court allowed the appeal, and accordingly made an order transferring the criminal trial from Kaduna to Asaba Judicial Division of the Lower Court.

 

During the pendency of the aforementioned appeal, the Appellant amended the charge from the original 129 counts to 170 counts. Interestingly, however, on 28/07/09, the Respondents filed in the Lower Court a motion on notice seeking the following relief:

Quashing all the 170 counts contained in the document titled Further Amended Charges filed by the prosecution in this matter and terminating the criminal proceedings connected therewith on the following grounds:

(i)     None of the counts disclose a prima facie case against any or all of the accused persons.

(ii)    The accused persons are not in any way linked to the offence of money laundering as charged by the prosecution.

(iii)   Constitutionally, the charges are incompetent as they constitute Delta State business or affairs of State which the Federal Government of Nigeria or any of its agencies such as the EFCC is incompetent to inquire into.

 

At the end of the hearing of the said motion, the Lower Court, Coram Awokulehin, J; delivered the vexed ruling on 17/12/09, thereby quashing the 170 counts charge, discharging and acquitting the Respondents.

 

The Appellant’s Notice of Appeal was dated 31/12/09, but filed on 08/01/10. It’s predicated upon 16 grounds. The Appellant’s brief of argument was filed on 22/4/10, but deemed properly filed on 16/6/10. It spans 42 pages. The Respondents’ brief was filed on 29/11/12 by J. B. Daudu, SAN. It spans a total of 40 pages.

 

At page 5 of the brief thereof, the Appellant raises four issues for determination, viz:

(1)    Whether, in the interpretation of the provisions of Section 14 (1) of the Money Laundering (Prohibition) Act, 2003 and 2004, the phrase “or any other crime or illegal act” is to be construed under the Ejusdem Generis Rule, as restricted or limited to “illicit traffic in narcotic drugs or psychotropic substances. (Grounds 1).

(2)    Whether from the statements and documents accompanying the counts on the charge sheet, there is a prima facie case linking any or all the Accused Persons to any or all the offences alleged against them. Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15.

(3)    Whether at the stage of the proceedings before the commencement of trial when the Lower Court was called upon to determine whether there is a prima facie case linking the Accused Persons to the offences alleged against them the trial court was right to have made the findings of fact that the payments made to the accounts of the 2nd Accused Persons from the Delta State Government Funds were legitimate, payments and were for executed contracts. (Ground 13).

(4)    Whether in Criminal trials before the Federal High Court, same is by way of information and not summary trial. (Ground 16).

 

On 27/02/14, when the appeal lastly came up for hearing, the learned Senior counsel, adopted the submissions contained in their respective briefs of argument, thus resulting in reserving the Judgment for delivery.

 

The Appellant’s learned counsel, I. Isiyaku, SAN, deemed it expedient to argue issue No. 4, first and foremost, at pages 7 to 11 of the brief thereof.

 

In a nutshell, the submission of the learned senior counsel is to the effect that in essence, all criminal proceedings, the instant case inclusive, before the court below “shall be” by way of summary trial. According to the learned silk, by the combined effect of the provisions of Section 277 (d) of the CPA and Section 33 (2) of the Federal High Court Act (Supra), it’s explicit that criminal proceedings before the Lower Court can only be by summary trial. That charges, as distinct from information, are the pre-requisite for the initiation of a criminal trial before the Lower Court.

 

It was argued by the learned silk, that in the present case, the 170 count/charges filed and accompanied by statements and documents gathered in the course of investigation would not override the provisions of Section 277 (d) of the CPA (Supra) vis-a-vis Section 33 (2) of the CPC (Supra). That, this is more so, when the Respondents were not committed for trial after a preliminary inquiry before a Magistrate.

 

As further argued, for criminal proceedings at the Lower Court, proofs of evidence are not sine qua non for initiation of trial. Consequently, the requirement disclosing prima facie case in order to sustain charges is unheard of in the court below. Thus, it’s sufficient that charges are filed in the same manner as in summary trial proceedings in Magistrate’s courts under Section 78 of the CPA, with such necessary modifications to bring them into conformity with the provisions of the Federal High Court Act (Supra). See OKEKE VS. LPDC (2005) 15 NWLR (Pt.849) 471 @ 531, for the definition of the term ‘charge’.

 

It was contended, that the Lower Court erred when it proceeded to evaluate the statements and documents gathered in the course of investigation as if they were testimonies given on oath, and documents tendered in evidence in formal trial, as if the trial before the Lower Court was by information, or preceded by leave to prefer charges.

 

The court is urged to accordingly resolve the Issue No. 4 in favour of the Appellant.

 

Regarding Issue No. 1, the learned silk submits that the issue of Ejusdem Generis Rule was raised for the first time when the written addresses were being adopted (at the Lower Court). The issue relates to the phrase – “any other crime or illegal act” as couched in Section 14(1) of the Money Laundering (prohibition) Acts, 2003 and 2004. See pages 2394-2400, Volume 6 of the Record of Appeal.

 

Further submitted, that the counsel’s argument related to whether the statements and document gathered in the course of investigation had established a predicate offence. Yet, as contended by the learned counsel, the Lower Court went out of way, at pages 2364 – 2366, lines 13 – 13 of the Record, to hold that the interpretation to be accorded the phrase in question must be restricted or limited to the words preceding it i.e. to funds derived from illicit traffic in narcotic drugs or psychotropic substances. However, the Lower Court did not invite the respective learned counsel to address it on the point.

 

On whether or not the court below was correct in the decision thereof, some authorities were cited regarding the meaning of Ejusdem Generic Rule, namely – EHUWA VS. OSIEC (2006) 18 NWLR (Pt.1012) 544 @ 595; BUHARI VS. YUSUF (2003) 14 NWLR (Pt.841) 446 @ 536 B – D; SPDC vs. FBIR (1996) 8 NWLR (Pt.466) 256 @ 290 G-H.

 

It is contended that the word ‘or’ used in Section 14(1)(a) of the ML (P) Acts 2003 and 2004 is disjunctive. See Section 18 (1) of the Interpretation Act CAP. 123 Laws of the Federation of Nigeria, 2004; INAKOJU VS ADELEKE (2007) 4 NWLR (Pt.1025) 423 @ 672 B – C; ONAKOYA vs. FRN (2002) 11 NWLR (PT.779) 595 @ 647 F-G; UGWU VS. ARARUME (2007) 12 NWLR (Pt.1048) 367 @ 439 D – G.

 

The learned silk surmised that a critical study of both the 1995 and 2003 Acts reveals that the former Act dealt solely with offences relating to illicit traffic in narcotic drugs and psychotropic substances, while the latter Act widened the scope to also include the laundering of money derived from any other crime or if legal acts. See Sections 6(1), 6(2) (b), 6(2) (c), 9, 11 and 15 of the 1995 Act; Section 16 of the 2003 Act, and the Explanatory Memorandum thereto.

 

It was finally submitted on the issue, that the scope of the 2003 Act extends beyond the illicit traffic in narcotic drugs and psychotropic substances which, the 1995 Act was restricted to. Thus, the court is urged to resolve issue No. 1 in favour of the Appellant.

Next is issue No. 2. From the outset, the Appellant’s learned counsel concedes to the fact that where an information does not disclose the commission of an offence, same is liable to be quashed. And that even where the statement accompanying the charge sheet discloses an offence, an accused person shall not be put on trial if there is no link between him and the offence. In other words, a prima facie case must be made out against the accused person. See IKOMI VS. STATE (1986) NWLR (Pt.28) 340 @ 381 F; @ 358 H; @ 374 C- D. ABACHA VS. STATE (2002) 11 NWLR (Pt.779) 437; SHER SINGH vs. JITEND – DR ANTHEN (1931) 1 LR 59 CALC. 275; AJIDAGBA VS. IGP (1958) SCNLR 60.

 

It was submitted that from the information laid before the court, the following must be deductible to establish a prima facie case against an accused person:

(1)    disclosure of the commission of the offence;

(2)    that the accused is linked to the commission of the said offence; and

(3)    that from the evidence disclosed in the information, the accused has something to explanation.

 

Thus, as postulated by learned senior counsel, it’s not how strong the evidence against the accused is that matters. See IKOMI VS. STATE (Supra) @ 359 – 966 H – A per Nnamani, JSC; @ 371-372 H-A & 375 B per Aniagolu, JSC.

 

According to the learned silk, in the instant case, there are 170 counts classified into 8 categories. And that the statements and documents gathered in the course of investigation are contained in 5 volumes: (1) Volume 1- pages 1-567; (2) Volume 2 – pages 558 – 960; (3) Volume 3 – pages 961 – 1325 – 1758; and (5) Volume 5 – pages 1759 -2273.

 

The provisions of Sections 14 (1) and 16 of the Money Laundering (Prohibition) Acts, 2003 & 2004 were referred to, to the effect that the ingredients of the offence of money laundering relating to the instant case include –

(a)    that the accused person transferred resources;

(b)    that the said, resources were derived directly or indirectly from illegal act; and

(c)     that the transfer was done with the aim of either –

(i)     conceding or disguising the illicit origin of the resources; or

(ii)    aiding any person involved in a crime or an illegal act to evade the legal consequences of his action.

 

Secondly, that where collaboration is alleged, the ingredients would include – (a) that the accused collaborated in the concealment or disguise of the genuine nature, origin, location, disposition, movement or ownership of the resources; and (b) that the said resources were derived directly or indirectly from a crime or an illegal act.

 

Thirdly, that where retention is alleged, the ingredients include (a) that the accused person retained the proceeds of crime or an illegal act; (b) that he did so by concealment or removal from jurisdiction or transfer to nominees; (c) that he acted on behalf of another person; and (d) (i) that he knew or suspected that other person to be engaged in a criminal conduct or had benefited from a criminal conduct or (ii) that he acquired or used that person’s property or kept possession of it knowing same to have been in whole or part, that person’s proceeds of a criminal conduct.

 

Further expatiating upon counts 1 – 170 of the charge in question at pages 22 – 35 of the brief thereof, the learned silk posited that in the authorities, what is required of the prosecution at this stage was to show an “arguable case”. That from the analysis of the statements of witnesses and documents to be relied upon at the trial, there are evidence that lodgements  were made into: (1) the personal account of the 1st Accused (1st Appellant) at GTB PLC, Asaba; (2) Prof. Utuama’s Prime Chambers account at Zenith Bank, Asaba which said account was opened in 2000 while he was already in public office as Attorney-General and with him as the sole signatory to facilitate withdrawal from the lodgements; (3) (a) 2nd Accused Person’s (i) Silhouette Travels & Tours Ltd’s account Zenith Bank, Lagos; (ii) Personal Account at Oceanic Bank, Lagos; and (iii) Saigon Nig. Ltd’s account at Oceanic Bank, Lagos. (b) Mrs. Adebimpe Pogoson’s Charterhouse Project & Inv. Ltd registered in 2002 (See page 657) to facilitate lodgements with Mrs. Pogoson holding 9,999 shares of its 10,000 shares (See page 658) and also at Standard Trust Bank, Lagos; (c) the account of 4th Accused whose 9,999 shares out of 10,000 shares were inherited from the 1st Accused for which Mrs. Pogoson is its sole signatory; (d) the account of 5th Accused to which the 3rd Accused is the sole signatory.

 

It was further submitted, that the beneficiaries of the lodgements, most particularly the 2nd – 6th Accused Persons facilitated the transfers of various sums from these accounts to foreign Banks to sustain the purchase of properties, using companies in which the 1st Accused Person (and immediate members of his family) have interests.

 

Conclusively, it was contended that none of the Accused persons produced to the investigators any contract documents or certificates of completion of any project (if any) executed by them (if at all), or even store receipt vouchers to confirm supplies (if any) made to Government.

 

Lastly, the Issue No. 3 was argued at pages 37 – 40 of the Appellant’s brief. In a nutshell, it was submitted that in consideration of whether a prima facie case has been made out, all that is required at that stage is evidence requiring some explanation from the accused person. That in the present case, the Lower Court was in error to have made a finding of fact with conclusive effect as if a formal trial had been conducted at which testimonies on oath had been given, and relevant document tendered and admitted. The court is urged to resolve issue 3(sic) in favour of the Appellant.

 

Conclusively, the court is urged to allow the appeal, and remit the case to the court below for trial before another Judge. On the other hand, the Respondents’ brief settled by JB Dauda, SAN spans a total of 40 pages. At page 10 of the said brief, the Appellants 4 issues were adopted, mutatis mutandis, thus:

15. Whether on application to quash criminal charges can be validly taken against charge(s) instituted in the Federal High Court in view of the fact that all criminal trials in that court are by way of summary trial procedure and not by way of information? [Issue No. 1] [Ground 16].
16. Whether the Ejusdem Generis Rule of statutory interpretation involved by the Federal High Court in the construction of 14 (1), 15(2) (b) and 16 of the Money Laundering (Prohibition) Acts 2003 and 2004 was rightly applied having regard to the facts and circumstances of the case? [Issue No. 2] [Ground 1]
17. Whether the learned trial judge was right to examine the contents of the depositions and other statements and documents annexed to the 170 count charge and lavishly utilize some in coming to the conclusion that the charges neither disclosed a prima facie case against the Respondent, nor linked them to the offences alleged therein. [Issue No.3] [Grounds 13]
18. Whether the learned trial judge was right when he found that in respect of the 170 count charge laid out against the Respondents/Accused Persons the prosecution had neither (a) made out a prima facie case against them to any of the offences alleged in the said counts? [Issue No.4] [Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15].

 

The four issues were argued seriatim. On issue No. 1, the learned silk submitted that the attitude of courts to criminal trials under the 1999 Constitution, particularly relating to the quality of prosecution’s evidence in indictment information or any other initiatory process, has been set out by the Supreme Court in the locus classicus – ABACHA VS. STATE (2002) 11 NWLR (Pt.779) 437.

 

It was further submitted, that a summary trial procedure is not a license for the prosecution to conduct a cloak and dagger trial, or play hide and seek with the evidence. That, it matters not, whether the trial is commenced by way of information with the leave, or filing directly of charges in court. All the evidence and materials that the prosecution seeks to rely upon in proof of its case must be served on the Defendant and/or his counsel, and must disclose a prima facie case. See Section 36(6) (a) & (b) of the Constitution of the Federal Republic of Nigeria, 1999; STATE VS. NNAMDI EZEANI: (unreported decision of Kaduna State High Court in KDH/KAD/5C/2000 delivered on 24/7/2000 per Abiriyi, J; (now JCA).

 

Finally submitted on the issue, that the Appellant’s argument has been hinged on legislations and procedure [which are] inferior to the express stipulations of the 1999 Constitution. Therefore, it makes no difference whether a trial is conducted by a summary procedure or by information; an accused person is entitled to all materials on which the prosecution will rely for trial in advance for the preparation of the defence thereof. The court is urged to resolve Issue No. 1 in favour of the Respondents.

 

On Issue No. 2, it was submitted by the learned silk, that the court below was correct in the conclusion thereof (at pages 2365 – 2366 of the Record), regarding the application of the Ejusdem Generis Rule in question. Further submitted, that it’s obvious that the 170 counts were quashed because they did not disclose a prima facie case against the accused persons, be it in respect of drugs or narcotics, or even any illegal crime or act. That, none of the 13 classifications of the 170 counts was discountenanced by the Lower Court on account of the Ejusdem Generis Rule. That a court deals only with live issues, thus should steer clear of those that are academic: AKEREDOLU VS. AKINREMI (1986) 2 NWLR (Pt.25) 710 @ 725 per Nnamani, JSC.

 

The learned silk postulated, that the real issue is not whether the charges were not linked to drug or narcotics. Rather, it’s whether there was a predicate offence that generated the funds that were allegedly laundered, as required by Sections 14 (1), 15 (2) (b) and 16 of the Money Laundering (Prohibition) Acts, 2003 and 2004. Reference was copiously made to pages 2355-2356 of the Record, regarding the Respondent’s submission, the absolute imperativeness of the existence of a predicate offence as understood by the Lower Court. That the United Kingdom faced a similar dilemma with the pre-2002 proceeds of crime registrations ranging from the Drug Trafficking Offences Act, 1986 and 1994, through [to] the prevention of Terrorism Act, 1989 and the Criminal Justice 1994. That, the UK Prosecutors faced a herculean task in proving Money Laundering cases because all the legislations required a prior establishment of the predicate offence before the Money Laundering aspect could be established. To obviate this problem, the parliament enacted the Proceeds of Crime Act, 2002 (POCA). See Sections 228 and 340 (POCA), to the effect of voiding the necessity of establishing predicate offences in all situations. See R. VS. ANWOIR & ORS (2008) ECWA CRIM 1344 paragraph 21, per Latham, LJ.

 

However, the Nigerian legal system is still mired in the pre-2007 UK position. Consequently, the Lower Court was right in holding that the voluminous proof of evidence did not show that any or all of the Respondents committed any illegal act or crime, as related to those funds alleged to constitute Money Laundering.

 

The court is urged to resolve issue No. 2 in favour of the Respondents.

 

On issues 2 & 3, it was submitted that the Lower Court merely applied the law as laid down in a long line of cases, including IKOMI VS. STATE (Supra) et al. Therefore, the approach of the Lower Court in determining whether or not the prosecution had made out a prima facie was unimpeachable, and in conformity with laid down procedure.

 

An allusion was made to the first of the 13 sets of charges – i.e. counts 1 – 3 vis-a-vis the finding of the Lower Court thereon, at pages 2370 – 2371 of the Records. It was submitted, that the failure of the prosecution to prove criminality or illegality of the nature and origin of those funds (N5m, 1m and 20m) is fatal to their case. That, the Respondent are not under any duty to explain the source or object of the funds; it is for the prosecution who asserts to prove. See Section 36 (i) & (ii) of the 1999 Constitution. It was contended that since the allegations were preceded by official acts, they are regular until the Appellant establishes the criminality or illegality of the funds in question. Thus, relying upon the maxim:

Omma Praesumuntur rite esse acta – All official acts are presumed to have been done rightly. See also Section 168 (1) and (2) of the Evidence Act, 2011.

 

Thus, counts 1 – 3 did not disclose any prima facie case against the 1st Respondent, or any of the Respondents.

 

Equally postulated upon, were counts 24 – 34, 35 – 49, 50, 51 – 65, 66, 67 to 106, 123 – 133, 134 – 147, 148 – 167, and 167 – 170, respectively, at pages 23 paragraphs 34, to 35 paragraph 51, of the Respondents’ brief, to the effect that the prosecution –

51. …has not made out a prima facie case against the Respondents. Under the Specific Money Laundering legislations they have been arraigned either in the Lower Court or in this Honourable court. It is submitted that a criminal trial is a very serious event, it is not to be embarked upon where (a) the prosecution on a comprehensive re-assessment of its case discovers, that none of the ingredients of the offence charged can be proved on the basis of the existing materials; (b) the totality of the prosecution’s case has been exposed to be irredeemably weak and lacking in material and (c) where the politics of a case clouds the law and obfuscates professional judgment the prosecutor ought to stick to the strict legal principles of the matter.

 

Finally, it was submitted that the volumes of document of over 2000 pages filed by the prosecution did not disclose a prima facie case against the Respondents. Secondly, that circumstantial evidence in the definition thereof is better suited to murder cases or cases of violent crimes. See UKORAH VS. STATE (1977) 4 SC 11. In this case, there are no collateral or co-existing circumstances that point irresistibly to the Respondents as culprits. Thus, the court is urged to resolve issues 3 & 4 in favour of the Respondents.

 

Conclusively, the court is urged upon to dismiss the appeal as lacking in substance.

 

In response to the Respondents’ brief, the Appellant deemed it expedient to file a reply brief on 15/4/13, which was deemed properly filed in 27/02/14. In a nutshell, the submission of the Appellant’s learned senior counsel, is to the effect that the cases of ABACHA VS. STATE (Supra) and STATE VS. EZEANI (Supra) are not apposite to the instant case. And that the provisions of Section 33(2) of the Federal High Court Act (Supra) are not, by any stretch of imagination, in conflict with the provisions of Section 36(6) (a) & (b) of the 1999. Constitution.

 

It was reiterated, that the summary trial does not breach the constitutional provisions of this hearing. See ALAMIESEIGHA vs. FRN (2006) 16 NWLR (Pt.1004) 1 @ 62 paragraphs H – A.

 

Accordingly, the court is urged to discountenance the Respondents’ argument and allow the appeal.

 

Having amply considered the nature and circumstances surrounding the appeal, the illuminating and far-reaching submissions of the learned senior counsel contained in the respective briefs thereof vis-a-vis the record of appeal as a whole, I am of the view that the four issues raised in the two briefs of the learned senior counsel are not substantially mutually exclusive. For the determination of the appeal, I have deemed it appropriate to adopt the four issues formulated in the Appellant’s brief.

 

ISSUE NO.(4):
The said issue No.4 of the Appellant raises the vexed question of –

(4)    Whether in criminal trials before the Federal High Court same is by way of information and not summary trial. (Ground 16).

 

In-arguably, the said Appellant’s issue No. (4) is relative to the Respondents’ issue No. 1. Which raises the very vexed question of –

15. Whether an Application to quash criminal charges can be validly taken against charge(s) instituted in the Federal High Court in view of the fact that all criminal trials in that court are by way of summary trial procedure and not by way of information? [Issue No.1] [Ground 16]

 

At pages 2386 – 2387 of the Record, the Lower Court held, inter alia, thus:

It was the argument of the prosecution that even if the case put forward is weak, this court can still proceed with a trial, once it is established that there is a prima facie case disclosed from the proof of evidence. While that may be so, it must however be noted that the duty lies on the prosecution where an application is filed, to quash charges for non disclosure of prima facie case to high-light the evidence in the proof that establishes the prima facie case to justify the trial of the accused persons. See Wike Vs. FRN unreported decision of the Court of Appeal, Abuja Division in CA/AB/SSC/2009. This the prosecution has failed to do in the instant case.

 

Now, the enabling provisions for criminal trials is provided in the Federal High Court Act, CAP. Law of the Federation of Nigeria, 2004. Most especially, under Section 33 of the said Act, it’s provided, thus:

33. – (1) Subject to the provisions of this Section, criminal proceedings before the court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act and the provisions of that Act shall with such modifications as may be necessary to bring it into conformity with the provisions of this Act, have effect in respect of act, matters falling within the jurisdiction of the court.

(2)    Notwithstanding the generality of such section, all criminal causes or matters before the court shall be tried summarily.

 

Invariably, the term information, denotes a formal criminal charge made by a prosecutor without a grand-jury indictment. Also termed bill of information. See BLACKS LAW DICTIONARY, 9th Edition, 2009 @ 849.

 

Contrariwise, a charge denotes a formal accusation of an offense as a preliminary step to prosecution as in murder charge, et al. Also termed criminal charge. See BLACK’S LAW DICTIONARY (Supra) @ 265.

 

The provisions of Section 33 (2) of the Federal High Court (Supra) are to the effect that –

“Notwithstanding the generality of subsection (1) of this section all criminal cases or matters before the court shall be tried summarily.”

 

Thus, by virtue of the combined provisions of Section 251 (2) of the 1999 Constitution (Supra) and Section 33(2) of the Federal High Court Act (Supra), the Lower Court has been eminently cloaked with the jurisdiction to try the offences as under the Miscellaneous Offences Act, CAP. M17 Laws of the Federation of Nigeria, 2004 and the Money Laundering (Prohibition) Act, 2004. And that these offences shall be tried summarily. What’s more, the Criminal Procedure Act has provided for a summary trial under Section 277 to the following effect:

“277. The provisions of this Act shall apply to offences summarily, that is to say –

(d)    all offences declared by any law to be triable summarily.”

 

As rightly postulated by the Appellant’s learned senior counsel, the import of Section 33 (1) of the Federal High Court Act (Supra), is to ensure substantial compliance with the provisions of the Criminal Procedure Act (Supra) in criminal trials. Undoubtedly, the opening phrase –

“(1) Subject to the provisions of this Section…”
as couched in Section 33(1) of the Federal High Court Act (Supra), is not novel in the context of the use thereof in statutes. As aptly reiterated by the Apex Court –

 

The phrase “subject” in the section is significant. The expression is of the used in states to introduce a condition, a proviso, a restriction and indeed a limitation See OKE V. OKE (1974) 1 All NLR (pt.1). The effect is that the expression evinces an intention to subordinate the provisions of the subject to the section referred to which is intended not to be affected by the provisions of the latter. See Aqua Ltd V. Ondo State Sports Council (1988) 4 NWLR (pt. 91) 622. In other words, where the expression is used of the commencement of a statute as in Section 1(2) of the Decree No. 1 of 1984, it implies that what the subsection is subject to shall govern, control and prevail over what follows in that section or subsection of the enactment. See LABIYI vs. ANRETIOLA (1992) 8 NWLR (Pt.258) 139 @ 163 – 164. See also TUKUR VS. GOVT OF GONGOLA STATE (1989) 4 NWLR (Pt.117) 517 @ 529; EBHOTA vs. PIPDC LTD (2005) 15 NWLR (Pt.948) 266 @ 283 paragraphs A – E; NDIC VS. OKEMENT LTD (2004) ALL FWLR (pt. 210) 1176 @ 1232 paragraph H.

 

Thus, in view of the foregoing far-reaching postulations, I would want to appreciate the apt view point of the Appellant’s learned senior counsel, to the effect that in essence, all criminal proceedings, the instant case inclusive, shall be by way of summary trials in strict compliance with the provisions of Section 33(2) of the Federal High Court Act and Section 277 (d) of the Criminal Procedure Act (Supra).

 

Under Section 2 of the Criminal Procedure Act, the term ‘summary trial’ denotes –

“Any trial by a Magistrate and trial by a Judge in which the accused has not been committed for trial after a preliminary inquiry.”

 

As alluded to above, by virtue of the combined provisions of Section 251(1) of the 1999 Constitution, Section 33(2) of the Federal High Court Act and Section 277 of the Criminal Procedure Act (Supra), the Federal High Court is undoubtedly conferred with an unfettered jurisdictional competence to conduct all criminal trials summarily. As authoritatively reiterated, not too long ago, by the Supreme Court:

Section 277 of the Criminal Procedure Act provides for summary trials. Summary trials are short and fast. Cases tried summarily, are disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of the evidence the prosecution would rely on. Put in another way it is not all the evidence relied by the prosecution that is made available to the accused person before trial. On the other hand, trials can also be on information. Section 33 of the Criminal Procedure Act provides for trial on information. See RALPH UWAZURUIKE & ORS vs. AG. FED. (2013) LPELR -20392 (SC), @ 17 paragraphs C – F per Rhodes-Vivour, JSC

 

Instructively, an information is a comprehensive document which contains certain vital information regarding the following:

(a)    the charge, statement and particulars of offence;

(b)    the statement of the prosecution witnesses

(c)     the statement of the accused person;

(d)    list of exhibits, and

(e)    all other relevant documents that the prosecution intends to rely upon at the trial. See UWAZURUIKE VS. AG. FED. (Supra) per Rhodes-Vivour, JSC @ 17 paragraphs A – F.

 

The facts of the case of UWAZURUIKE VS. AG. FED (Supra) are very much apposite to the instant case. In UWAZURUIKES case (Supra), the Appellant was arraigned along with others before the Federal High Court, Abuja Judicial Division upon a 4 count charge of treasonable felony et al, contrary to Section 37, 237 (1), 64, 62(2) (1) and 63 of the Criminal Code Act CAP 77, Laws of the Federation of Nigeria, 1990. Not unnaturally, the Appellants pleaded not guilty to all the 4 counts charge in question.

 

In the course of the trial, the Appellants filed two motions seeking (1) bail pending trial, and (2) the dismissal of all the charges in limine and to restrain the Respondent from further prosecuting the Appellants upon the same facts as those in the application of 01/11/05. The Lower Court, in a considered ruling, refused the two applications in question. Dissatisfied with the said ruling, the Appellants appealed to the Abuja Judicial Division of the court of Appeal. On 15/5/08, the Court of Appeal delivered Judgment admitting all the Appellants to bail but refused to dismiss the 4 count charge against them. On a further appeal to the Supreme Court, two issues called for determination, viz:

(1)     Whether the arraignment of the Appellants before the Federal High Court Abuja despite a subsisting order of the Federal High Court Owerri to the contrary was proper in law.

(2)     Whether the Court of Appeal should not have dismissed the charges against the Appellants.

 

Regarding the first issue, the Apex court held, inter aria, that –

In the absence of service of the order the respondent is not expected to obey it. An order not served on a respondent loses its potency and the respondent is not bound by it. … There is only one Federal High Court in Nigeria, but there are several Divisions of that court spread all over Nigeria. The decision of a Division of the court does not bind the other or another Division of the Court. They are decisions of courts of co-ordinate jurisdiction. The Federal High Court Owerri and the Federal High Court Abuja are courts of concurrent jurisdiction. The orders of an Owerri Federal High Court made on the 18th of January 2005 restraining the named respondents from arresting Ralph Uwazuruike relates to the proceeding before the Owerri Federal High Court which were on going at the time the orders were made ex-parte. The orders are in no way related, nor do they affect or stop a subsequent arraignment of Ralph, Uwazuruike for treason etc.

 

With particular regard to the second issue, the Supreme Court held, inter alia, thus:

The reasoning of that court was that in the spirit of the constitution a man charged with treason which is an offence punishable with death must know the details of the offence before hand and given adequate time to prepare his defence. I am in complete agreement with both courts below. I must say straightway that Abacha V. State (Supra) is not relevant. That case was tried in a State High Court where trials are conducted on information. This suit was filed in the Federal High Court by virtue of the provisions of Section 33 (l) and (2) of the Federal High Court Act where offences such as treason, treasonable felony are tried summarily in the circumstances the four count charge is not improper because in summary trials proof of evidence do not accompany charge. Per Rhodes-Vivour, JSC @ 18 paragraphs C – F.

 

It is a well settled principle, that where the accused person is not satisfied with the information attached to the charge in a summary trial, as in the in instant case, all that he’s expected to do is to apply to the trial court. And the trial court has the discretion to so order the prosecution to provide more facts to the accused person. See UWAZURUIKE VS. AG. FEDERATION (Supra) per Rhodes-Vivour, JSC @ paragraph G. See also GAJI VS. STATE (1974 – 1975) 9 NSCC 294.

 

Contrary to the submission of the learned senior counsel to the Respondents at pages 11-12 of the brief thereof, the case of ABACHA VS. STATE (Supra) is not apposite to the instant case. Undoubtedly, the Supreme Court is very much emphatic regarding the inapplicability of ABACHA’s case to summary trials such as the instant case. ABACHA’s case (Supra) strictly relates to cases triable by the State High Courts which are normally conducted on an information.

 

Contrariwise, by virtue of the provisions of Section 33 (1) & (2) of the Federal High Court Act (Supra) and Section 277 of the Criminal Procedure Act (Supra), offences are tried summarily in the Federal High Court. And as authoritatively held by the Supreme Court in UWAZURUIKE vs. AG FEDERATION (supra) –
“In summary trials proof of evidence do not accompany charge.” Per Rhodes-Vivour, JSC @ 18 paragraphs C – F.

 

It ought to be reiterated, for the avoidance of doubt, that the principle upon which the case of ABACHA VS. STATE (2002) 5 NWLR (Pt.767) 638, is predicated is that if at the commencement of prosecution, a charge or information does not disclose facts supporting a prima facie case against the accused person, then the charge must be quashed. It was aptly reiterated by the Supreme Court that the case of ABACHA VS. STATE (Supra) –

was decided upon existing information on charges. Supported by proof of evidence. The position is not the same as in present case. Therefore, in the absence of proof of evidence to be used by the trial court in determining whether or not prima facie case had been disclosed against the Appellants having regard to the charge against them, the Appellants application to quash or dismiss the charges against them cannot be granted.

 

See UWAZURUIKE VS. AG. FED (Supra) per Mahmud Mohammed, JSC @ 22 paragraphs D – G.

 

Equally lending a credence to Rhodes-Vivours, JSC’s lead Judgment, Fabiyi, JSC, has this to say –

It is that trial on information, as done in Abacha V. The State (2002) 5 NWLR (Pt.767) 638 is quite distinct from the summary trial of the appellants by the Federal High Court, Abuja. The four count charge was read to the appellants and they pleaded not guilty to satisfy their desire, proof of evidence was ordered by the trial court and furnished accordingly.

 

Summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases, it is often carried out brevi manu. It may appear unusual but where is the law as dictated by Section 33 of the Federal High Court Act Cap. 133, LFN 1990, so be it. It is to be noted that the real trial is yet to commence. Even if the charges are quashed. Such, in the main does not seem to obliterate the re-arrest of the appellants and an ensuing cog which may result on the bail granted them by the court below.

 

What’s more, the learned Lord, Odili, JSC equally has this to say at page 34 paragraphs F-G, thus:

The meaning of summary trial being clarified above, the situation is what it is, placed before court the substance of what is complained of against the appellants who are not left in the dark of what to defend to the absence of elaboration of the details would not affect either the validity or potency of the charge nor would the colour of the proceedings charge on account of that absence of details.

 

Thus, in the light of the foregoing far-reaching reasoning, I have no hesitation any longer in coming to the conclusion on Issue No. 4 that the criminal trials before the Federal High Court (the Lower Court) are by way of summary trials in accordance with the provisions of Section 33(2) of the Federal High Court Act and Section 277 of the Criminal Procedure Act (Supra). The Issue No. 4 is thus hereby resolved in favour of the Appellant against the Respondents.

 

ISSUE NO 1:

The Issue No. 1 raises the question of whether or not, in the interpretation of the provisions of Section 14 (1) of the Money Laundering (Prohibition) Acts, 2003 and 2004, the phrase “or any other crime or illegal act” is to be construed under the Ejusdem Generis Rule as restricted or limited to “illicit traffic in narcotic drugs or psychotropic substances” “(Ground 1)”.

 

The Issue No. 1 of the Appellant relates to issue no 2 of the Respondents. As alluded to above, the issue has been canvassed at pages 11 – 16 of the Appellant’s brief, and pages 10 – 14 of the Respondents.

 

The said issue No. 1, as submitted by the learned senior counsel, relates to the interpretation to be accorded the phrase – “any other crime or illegal act” in Section 14(1) of the Money Laundering (Prohibition) Acts 2003 and 2004, viz:
14 – (1) A person who

(a)     converts or transfers resources or property derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substances or any illegal act, with the aim of either concealing or disguising the illicit origin of the resources or property, or aiding any person involved in the illicit traffic in narcotic drugs or psychotropic substances or any other crime or illegal act to evade the legal consequences of his action; or

(b)     collaborates in concealing or disguising the genuine nature, origin, location disposition, movement or ownership of the resources, property or rights thereto derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substances or any other crime or illegal act.

 

Commits an offence under this section and is liable on conviction to imprisonment for a term of not less than two years or more than three years. (underlining added).

 

The term Ejusdem Generis is a Latin derivative, literally meaning of the same kind, class [or league]. Etymologically, the term Ejusdem Generis denotes a canon of construction (interpretation) holding that when a general word or phrase follows a list of specific, the general word or phrase will be interpreted to include only items of the same class as those listed. As for instance, in the phrase ‘horses, cattle, sheep, pigs, goats, or any other farm animals,’ the general language or any other farm animals – notwithstanding its apparent breadth – would probably be held to include only four-legged, hoofed mammals typically found on farms. Thus, in the circumstance, chickens, turkeys and all other species of birds stand to be so excluded.

 

It may be pertinent to say, at this point in time, that the Ejusdem Generis Rule is often referred to in contradistinction to the Latin doctrine of Expressio Unius est exclusion alterius: a canon of construction denoting that to express (or include) one thing implies the exclusion of the other, or of the alternative. E.g., the rule that “each citizen is entitled to vote,” naturally implies that non citizens are not entitled to vote. See BLACKS’S LAW DICTIONARY, 9th Edition 2009 @ 594 and 661.

 

It has been aptly observed by Richard A. Posner that –
Several Latin maxims masquerade as rules of interpretation while nothing more than describing results reached by other means…

 

The canon express unius est-exclusio alterius is … based on the assumption of legislative omniscience, because it would make sense only if all omissions in legislative drafting were deliberate. Although this canon seemed dead for a while it has been … by the Supreme Court to provide a basis for refusing to create private remedies for certain statutory violations. Its recent disparagement by a unanimous court [an Herman & Maclean V. Huddleson 459 Vs. 375, 386 n. 23, 103 S. Ct 683, 690 n. 23 (1983) put its future in some doubt but more likely confirms that judicial use of canons of construction is opportunistic. See THE FEDERAL COURT: CRISES AND REFORM (1982) @ 282 quoted extensively at pages 661 – 662 BLACK’s LAW DICTIONARY (Supra).

 

The Ejusdem Generis Rule has been a subject of judicial pronouncement in a plethora of authorities. Most particularly, in the case of EHUWA VS. OSIE (2006) 18 NWLR (Pt.1012) 544, the Supreme Court held, inter alia, that the Ejusdem Generis rule simply means that in interpreting the provisions of a statute general words which follow particular and specific words of the same nature as themselves take their meaning from those specific words. See also BUHARI VS. YUSUF (2003) 14 NWLR (Pt.841) 446 @ 536 paragraphs B – D.

 

However, it’s pertinent to reiterate that the application of the Ejusdem Generis Rule, is not as a matter of course; not automatic. The court is required to exercise an extra caution, most especially in view of the fact that it’s merely a presumption in the absence of other indications of the intention of the legislature. Thus, in essence, there must be a distinct genus (category) before the Ejusdem Generis Rule can be invoked. See SPDC VS. FBIR (1996) 8 NWLR (Pt.466) 256 @ 290 paragraphs; ANDERSON VS. ANDERSON (1895) 1 QB 749 @ 753 & 755; CRAIES ON STATUTE LAW 7th edition @ 181.

 

In the instant case, the Lower Court was recorded to have held, at pages 2355 – 2366 of the Record (copiously reproduced at pages 14 & 15 of the Respondents’ brief) to the effect, inter alia, thus:

In the instant case, it is my view that the words “any other crime or illegal act” in Section 14 (1) of the Money Laundering Act are to be construed Ejusdem Generis with those which preceded them and are to be restricted or limited to funds even remotely connected to illicit traffic in narcotic drugs or psychotropic substances. For a charge under Section 14 (1) of the Money Laundering (Prohibition) Act, 2004 to be sustained, the prosecution must first and foremost establish that, or at least link such funds to those directly or remotely made or obtained in the course of illicit traffic or narcotic drugs and psychotropic substances… In the instant case, I respectfully do not share the view that Section 14(1) of the Money Laundering (Prohibition) Act, 2004 envisaged all funds alleged to be illegally acquired otherwise the preceding words would have been unnecessary. The only reasonable thing to do in the circumstance is to aptly the Ejusdem Generis Rule in the interpretation of Section 14 (1) of the Money Laundering (prohibition) Act to achieve its intendment and I so hold.

 

As alluded to above, the application of the rule of Ejusdem Generis is neither at large, nor merely as a matter of course. It ought to be applied by the court with utmost circumspection. It must not be overstretched or pushed too far beyond reasonable tolerable limit. As authoritatively held by the Supreme Court
It is wrong to treat it (the rule of Ejusdem Generis) as if it is automatically applicable since it is a mere presumption in the absence of other indications of the intention of the legislative… The modern tendency of the law is to attenuate the application of the rule… There must be a distinct genus or category before the rule of Ejusdem Generis can be invoked. See SPDC VS. FBIR (Supra) @ 290 paragraphs G – H; See also ANDERSON VS. ANDERSON (Supra); CRAIES ON STATUTE LAW, 7th Edition @ 181, cited with approval in SPDC VS. FBIR (Supra).

 

Most regrettably, I would want to believe that the Lower Court has failed to be rightly guided by the aptly authoritative decision in the case of SPDC VS. FBIR (Supra). Having critically appraised the entirety of the provisions of the Money Laundering (Prohibition) Acts of 2003 & 2004 in question, I am of the considered view that the provisions of Section 14(1) are very clear and rather unequivocal. Arguably, by virtue of the two salient phrases – “Or any other crimes;” and “Any illegal act;” as couched in Section 14 (1) of the extant Money Laundering (Prohibition) Act, 2004 (Supra), it is so obvious that the intendment or object inherent therein is not (merely) to the criminality of illicit trafficking in narcotic drugs and psychotropic substances as was erroneously assumed by the Lower Court.

 

As aptly postulated by the Appellant’s learned senior counsel, the words “or” and “other” couched in the said phrases in Section 14 (1) (a) (supra) are disjunctive. See Section 18(1) of the Interpretation Act CAP. 123 Laws of the Federation of Nigeria, 2004, thus:

“18(1) –

….

(3)     the word ‘or’ and the word ‘other’ shall in any enactment, be construed disjunctively and not as implying similarity.”

 

Inarguably, it’s an established principle, that a disjunctive particle generally expresses or marks an alternative in a statute. It indicates or provides a choice (option) of one among two or more things. Thus, the disjunctive particle (‘or’, ‘other’ as in the instant case), prominently plays a functional role depicting or showing an alternative between..different or unlike things. See INAKOJU VS. ADELEKE (2007) 4 NWLR (Pt.1025) 423 @ 612 paragraph B – C per Niki Tobi, JSC.

 

Indeed, it is so obvious, that by the provisions of Section 14(1)(a) of the Money Laundering (Prohibition) Act, 2004 (Supra), it is an offence to –

(i)      convert or, transfer resources or properties derived directly from illicit trafficking in narcotic drugs and psychotropic substances; or

(ii)     convert or transfer resources or properties derived from any other illegal act;

(iii)    conceal or disguise the illicit origin of the resources or property;

(iv)    aid any person involved in the illicit traffic narcotic drugs or psychotropic substances; or

(v)     aid any person in the commission of any other crime or illegal act to evade the legal consequences of his action.

 

Likewise, under Section 14(1)(b) of the Money Laundering (Prohibition) Act (Supra), it is an offence for any person to –

(i)      collaborate in concealing or disguising the genuine nature, origin, location, disposition movement or ownership of the resources property or rights thereto derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substances;

(ii)     collaborate in concealing or disguising the genuine nature, origin, location, disposition, movement or ownership of the resources, property or rights derived directly or indirectly from any other crime or illegal act (other than illicit traffic in narcotic drugs or psychotropic substances)

 

Thus, it’s rather obvious from the provisions of Section 14 (1) (a) & (b) of the Money Laundering (Prohibition) Act (Supra), that any person who commits any one of the above listed offences, shall be –

“Liable, on conviction to imprisonment for a term of not less than 2 years or more than 3 years.”

Afortiori, the provision of Section 14(2) of the Money Laundering (Prohibition) Act (Supra) is equally to the effect that –

(2)     Any person who commits an offence under subsection (1) of this Section shall be subject to the penalty specified in the subsection. Notwithstanding that the various act’s constituting the offences were committed in different countries or places.

 

Undoubtedly, the provisions of Sections 14(1), 16 and 17 of the Money Laundering (Prohibition) Act (Supra) are not, by any stretch of imagination, ambiguous. They are clear and unequivocal in their meanings. It’s a well established cardinal of interpretation, that in construing the provisions of a statute, it  behoves  the court to strive to discover the intention of the legislature therein. Where the words used in a statute are crystally clear and rather unambiguous, the court has a duty (without any option than) to accord them their plain, ordinary, and grammatical meanings. See ABIOYE VS. YAKUBU (1991) LPELR – 43 (SC) @ 111 paragraphs B – D per Karibi-whyte, JSC; ADEJUMO vs. MIL GOV. LAGOS STATE (1972) 5 SC 87; UGWU vs. ARARUME (2007) 12 NWLR (Pt.1048) 367; (2007) LPELR – 3329 (SC).
In the latter case of UGWU VS. ARARUME (Supra), it was aptly held by the Supreme Court that –

The consequences of a statute are those of the legislatures, not the judge. A judge who regiments himself to the consequences of a statute is moving outside his domain of statutory interpretation. He has by trial conduct engaged himself in morality which may be against the tenor of the statute and therefore notwithstanding judicial power. Per Niki Tobi, JSC @ 30 – 31 paragraphs G – C.

 

The Respondents’ Learned Senior Counsel, has aptly alluded to the remarkable evolution of the Drug Trafficking vis-a-vis Money Laundering Offences Legislation, most especially with regards to the UK.

Instructively, the Proceeds of Crime Act, 2002 (C.29) (POCA) of the United Kingdom provides for the confiscation or civil recovery of the, proceeds from crime. The POCA, 2002 encompasses the principal Money Laundering Legislation in the UK. The Act was enacted consequent upon the publication on June 14, 2000 of new government policy provided in the Performance And Innovation Units Report – “RECOVERING THE PROCEEDS OF CRIME.” The Act deals with a wide range of matters relating to UK Law on proceeds of crime issues, including the following:

(i)      Confiscation orders against convicted persons (requiring payment to the state based upon the benefit obtained from crimes);

(ii)     Civil recovery of proceeds of crime from unconvicted persons;

(iii)    Taxation of profits generated from crime;

(iv)    UK Anti-Money Laundering Legislation;

(v)     Powers of investigation into suspected proceeds of crime offences; and

(vi)    International Cooperation by UK Law enforcement agencies against Money Laundering.

 

Ever since the enactment thereof in 2002, POCA has been amended mostly by the Serious Organised Crime And Police Act, 2005 and Serious Crime Act, 2007.

Undoubtedly, the POCA 2002 had, inter alia, simplified the conviction of criminals suspected of Money Laundering. However, prior to 2002, prosecutors in the UK had to work with two different regimes: (i) The Drug Traffic Act, 1994 for laundering of the proceeds of drugs trafficking; (ii) the Criminal Justice Act, 1988, as amended by the Criminal Justice Act, 1993; and (iii) The Proceedings of Crime Act, 1995 for proceeds of other crime.

 

Thus, in essence, prior to the enactment of the POCA, 2002, a prosecutor had the arduous task of proving that monies (assets) were the proceeds of crime, and also what type of crime the proceeds were derived from (i.e. either drug crime or non-drug crime). However, the POCA, 2002 removed the distinction between the proceeds of drug trafficking and (proceeds of) other non-drug crimes. See THE PROCEEDS OF CRIME ACT 2002 (COMMENCEMENT NO. 4, TRANSITIONAL PROVISION AND SAVINGS) ORDER, 2003; MONEY LAUNDERING REGULATIONS, 2007; SECTION 74 SERIOUS CRIME ACT, 2007.

 

In the case of GALE & ANR VS. SERIOUS ORGANISED CRIME AGENCY, the UK Supreme Court aptly held, inter alia, thus:

1. The Proceeds of Crime Act 2002 (“POCA”), as amended by the Serious Organised Crime and police Act 2005, is designed to prevent the enjoyment of the fruits of criminal activity. Part 2 focuses on the criminal. To the extent that it is proved in the manner prescribed, that a criminal has, benefited from criminal conduct, a levy can be made upon his assets, whether or not those assets are themselves the product of his criminal conduct, by a process inaccurately described as “confiscation”. A conviction of the criminal is a precondition to the power to confiscate.
2. Part 5 concentrates on the fruits of crime themselves. The serious Organized Crime Agency (‘POCA’) is given the task of tracking down and recovering the fruits of criminal activity, whether they remain in the hands of the criminal or have been passed on to someone else subject to exceptions for which POCA makes provision. The fruits of criminal activity can be recovered under part 5 whether or not anyone has been convicted of the crime or crimes that have produced them. See (2011) LPELR 17843 (UK SC) in Appeal No. (2011) UK SC 49 (from Suit No. 2010 EWCA. Civ. 759) Judgment delivered on 26/10/11, per Lord Phillips.

 

Contradistinctively, the genesis of the Nigerian Money Laundering (Prohibition) Acts, 2003 & 2004 (Supra) is traceable to the Money Laundering Decree No. 13 of 1995. The said Decree was limited to the money or resources directly or indirectly received or derived from illicit drug and psychotropic substances. The National Drugs Law Enforcement Agency (NDLEA) was established and empowered to specifically enforce that law, pursuant to the NDLEA Act.
Section 14 (1) (a) of the 1995 Decree (Supra) was to the effect thus:
14(1) Any person who –

Converts or transfers resources or property derived directly or indirectly from narcotic drugs and psychotropic substances with conceding or disguising the illicit origin of the resources or property, or aiding any person involved in the illicit traffic in narcotic drugs. And psychotropic substances to evade the illegal consequences of his action.

Thereafter, the Decree No. 13 1995 was amended by the Money Laundering (Amendment) Act (No. 9) of 2002, which explanatory note thereof provided thus:

This Act provides for a new Money Laundering Act to prohibit the laundering of the proceedings of a crime or an illegal act and repeal the Money Laundering Act 1995, 2003.

 

It further provides appropriate penalties and expands the interpretation of financial institutions and scope of supervision of regulation authorities of Money Laundering activities among other things.

 

In the course of time, the Money Laundering Act, 2003 was itself repealed by the Money Laundering (Prohibition) Act, 2004 which has an explanatory note to the effect, thus:

This Act –

(a)     Provides for the repeal of the Money Laundering Act, 2003.

(b)     Makes comprehensive provisions for prohibiting the laundering of the proceeds of a crime or an illegal act; and

(c)     Provides appropriate penalties and expands the interpretation of financial institutions and scope of supervision of regulatory authorities on Money Laundering activities, amongst other things.

 

Thus, against the backdrop of the foregoing explicit explanatory notes, the mischief of the extant Money Laundering (Prohibition) Act, 2004 is undoubtedly to expand the [hitherto very limited] scope of the Precursor 2003 Act thereof, from the transfer of the illicit resources derived from drugs related offences, to much more broadly based crimes or illegal acts.

 

Indeed, it is a well settled fundamental principle, that although explanatory (side) notes to statutes are generally not considered as aids to interpretation of statutes, nonetheless, it’s permissible for the court to consider the general purpose and mischief at which the statute is aimed with the explanatory or side note in mind. See CHANDLER VS. DPP (1964) AC 763 @ 789 per Lord Reid; STEPHEN vs. CRUCKFIEL RURAL DISTRICT COUNCIL (1960) 2 QB 373 @ 383 per UPJOHN LJ; RUPERT CROSS; STATUTORY INTERPRETATION 1st Edition (1981) (Reprint) @ 113, cited with approval by the Supreme Court in UWAIFO VS. AG. BENDEL (1982) NSCC 221 per Idigbe, JSC @ 242.

 

Not too long ago, this court was faced with an exactly similar situation, and had this to say on the issue:

Thus, in the light of the above postulations, there is every cogent reason for me to reiterate that the provision of Section 74 (1) of the Money Laundering Act, 2004, (Supra) is aimed at expanding the scope of the provisions of the Precursor Act thereof, from the transfer of the resources directed from drugs offences to other crimes or illegal acts. See PATRICK S. FERNANDEZ VS. FEDERAL REPUBLIC OF NIGERIA & ORS: Appeal No. CA/L/692/2011, Judgment delivered on 02/07/13, @ 43 per Saulawa, JCA @ 43.

 

I think, in the light of the above far-reaching reasoning, I have no hesitation in holding that the answer to Issue No. 1 is most certainly in the negative, and same is hereby resolved in favour of the Appellant.

 

ISSUE No. 2

The second issue raises the vexed question of whether or not from the statements and documents accompanying the counts on charge sheet, there is a prima facie case linking any or all the Respondents (Accused Persons) to any or all the offences alleged against them. The second issue is distilled from Grounds 7 – 2, 14 & 15 of the Notice of Appeal. It relates to issues 3 & 4 of the Respondents’ brief.

 

It is a trite fundamental principle, that if at the commencement of a prosecution of a charge or information filed by the prosecution, the information does not disclose facts supporting prima facie case against the accused person, the charge must be quashed and the accused shall be discharged. See ABACHA VS. STATE (2002) 5 NWLR (Pt. 767) 638; UWAZURUIKE VS. AG. FEDERATION (Supra) per Mohammed, JSC @ 22 paragraphs D – F; IKOMI VS. STATE (1986) NWLR (Pt.28) 340 @ 387 paragraph F 358 paragraph H; 374 paragraphs C – D.

 

However, as alluded to above, the ABACHA VS. STATE case (Supra) is not apposite to the instant case. And the reason for my believing so is not farfetched. It is predicated upon the decision of the Supreme Court in the UWAZURUIKE VS. AGF’s case (Supra) where it was aptly, and most authoritatively, held, thus:

I must say straightaway that Abacha v. State (Supra) is not relevant. That case was tried in a State High Court where trials are conducted on information. This suit was filed in the Federal High Court by virtue of the provisions of Section 33(1) and (2) of the Federal High Court Act, where offences such as treason, treasonable felony are tried summarily. In the circumstances, the four count charge is not improper because in summary trials proof of evidence do not accompany the charge.

 

Where the accused is not satisfied with the information attached to the charge in a summary trials he is expected to apply to the court. To order the prosecution to provide more facts to the accused person is entirely in the courts discretion. See Gaji V. State 1974- 1975 9 NSCC p.294.

 

The learned trial Judge found that what was attached to the charge(s) was enough for the accused persons to prepare for their defence. Notwithstanding this finding the learned trial judge proceeded to order that the prosecution (respondent) files a proof of evidence. This was done. Per Rhodes-Vivour, JSC @ 18 – 19 paragraphs D – B.

 

Again, Mahmud Mohammed, JSC held at pages 22 – 23 paragraphs E – A thus:
That case (ABACHA VS STATE) was decided upon existing information on charges supported by proof of evidence. The position is not the same as in the present case. Therefore, in the absence of proof of evidence to be used by the trial court in determining whether or not prima facie had been disclosed against them, the Appellants application to quash or dismiss the charges against them cannot be granted.

 

Yet again, lending credence to the lead Judgment of Rhodes-Vivour, JSC above, Fabiyi, JSC equally held thus:

Trial on information as was done in Abacha V. The State (2002) 5 NWLR (Pt. 767) 638 is quite distinct from summary trial of the appellants by the Federal High Court, Abuja…

 

Summary trial entails immediate action without following the rigmarole in normal legal procedures. In some cases it is often carried out brevi manu. It may appear unusual but where such is the law as dictated by Section 33 of the Federal High Court Act, Cap 133, LFN 7990, so be it. It is to be noted that the real trial is yet to commence. Even if the charges ore quashed, such, in the main does not seem to obliterate the re-arrest of the appellants and an ensuing cog which may result on the bail granted them by the court below.

 

Further elaborating on the essence and purport of summary trial, as envisaged by Section 33 (2) of the Federal High Court Act, CAP 133 Laws of the Federation of Nigeria, 1990, vis-a-vis Section 277 of the Criminal Procedure Act (Supra), the learned Lord, Odili, JSC, at page 34 paragraphs B – G, has this to say:
The meaning of summary trial being clarified above, the situation is what it is, placed before court the substance of what is complained of against the appellants who are not left in the dark of what to defend to. The absence of elaboration of the details would not affect either the validity or potency of the charge nor would the colour of the proceedings change on account of that absence of details. This second issues is resolved against the appellants.

 

In the instant case, the totality of 170 counts of the charge against the Respondents have been classified into 5 categories, viz:

 

1ST CATEGORY OF THE COUNTS:

The 1st category relates to counts 1 – 3, 24 – 49, 107 – 122 and 134 – 147. These counts specifically allege illegal transfers of various sums of money said to have been illegally withdrawn from the Delta State Government funds to the accounts of the 1st Respondent (1st Accused Person), contrary to Section 14 (1) of the Money Laundering (Prohibition) Act, 2003 /2004.

 

2ND CATEGORY OF THE COUNTS:

The second category of the counts relate to counts 4 – 23, 50, 67 – 106 alleging collaboration in the concealment of various sums of money illegally withdrawn from the account of the Delta State Government contrary to Section 14(1) of the Money Laundering (Prohibition) Act, 2003/2004.

 

3RD CATEGORY OF THE COUNTS:

The third category of the counts exclusively relates to count 66 alleging that the 1st Respondent (1st Accused Person) made cash payment of USD 15m to influence criminal against him which act is punishable under Section 15(2) (b) of the Money Laundering (Prohibition) Act, 2004.

 

4TH CATEGORY OF THE COUNTS:

The fourth category of the counts relates to counts 123 – 133 of the charge alleging non-disclosure of assets by the 1st Respondent (1st Accused Person) contrary to Section 27 (3)(a) of the EFCC (Establishment) Act, 2004.

 

5TH CATEGORY OF THE COUNTS:

The last but not the least category, is the fifth category of the counts which relates to counts 51- 65 and 148 – 170, respectively thereby alleging that the 2nd and 6th Respondents (2nd and 6th Accused Persons) retained in their respective accounts on behalf of the 1st Respondent (1st Accused Person), various sums of money illegally withdrawn, from the funds of the Delta State Government, contrary to Section 16 of the Money Laundering (Prohibition) Act, 2003/2004.

 

Various statements and documents allegedly gathered in the course of investigation and sought to be relied upon by the Appellant at the trial, are contained in the five separate volumes, viz:

(1) Volume 7 spanning pages 1 – 567,

(2) Volume 2 – pages 568 – 961.

(3) Volume 3 – pages 967 – 1324.

(4) Volume 4 – pages 325 – 1758.

(5) Volume 5 – pages 1759 – 2273.

 

Against the backdrop of the analysis of the statements of witnesses and the various documents (contained in the five volumes referred to above) to be relied upon by the prosecution at the trial, there is a prima facie evidence to the effect inter alia, that lodgements were made into:

(1)     the personal Bank Account of the 1st Appellant at GT Bank PLC Asaba.

(2)     Prof Utuama’s Prime Chambers account at Zenith Bank, Asaba, which said account was opened in 2000 while he was already in public office as Attorney-General and as the sole signatory thereof to facilitate withdrawal from the said lodgements;

(3)     (a) 2nd Accused Persons –

(i)      Silhouette Travels & Tours Ltd’s Account Zenith Bank Lagos

(ii)     Personal Account with Oceanic Bank, Lagos, and

(iii)    Saigon Nig, Ltd’s Account with Oceanic Bank, Lagos.

(b)     the account of 4th Appellant’s Account whose 9,999 shares out of 10,000 shares allegedly were inherited from the 1st Appellant by the 4th Appellant and white Mrs. Pogoson who held no single share was the sole signatory thereof.

(c)     the 5th Appellant’s Account to which the 3rd Appellant is the sole signatory thereof even though he holds no single share.

 

The beneficiaries of all these lodgements, most particularly the 2nd to 6th Respondents, allegedly facilitated the transfers of various sums from these accounts to foreign Banks to sustain the purchase of properties using companies in which the 1st Respondent and members of the immediate family have interests.

 

Thus, from the statements of witnesses and the various mind boggling documents accompanying the 170 counts charge, there is every cogent reason for me to believe that a prima facie case has been established linking the Respondents to any or all the offences that were alleged to have been committed by them. Thus, the answer to issue No. 2 is most inevitably in the affirmative, and same is hereby equally resolved in favour of the Appellant.

 

ISSUE NO.3:

The 3rd issue raises the question of whether or not at the stage of the proceedings before the commencement of trial in question, the Lower Court was right to have made the findings of fact to the effect that the payments made to the accounts of the 2nd Respondent from the Delta State funds were legitimate payments for executed contracts.

It’s my considered view that having resolved issue No. 2 in the affirmative, there is no gainsaying the fact that the answer to issue No. 3 must equally be in the affirmative.

 

As alluded to above, the ruling of the Lower Court is contained at pages 2350 – 2388 of Volume (1) of the Records of Appeal. At pages 2382 -2383 of the Record, the Lower Court was recorded to have found, inter alia, thus:

The 2nd Accused/Applicant has been shown to be contractor and owns contradicting companies. EDE OGHORO’s statement shows that 2nd Accused/Appellant was awarded contact to the tune of N1.8 billion and that she executed the contract successfully and was paid for the contracts. He further confirmed that all relevant documents in respect of the contracts had been mode available to EFCC. The payments made to the accounts of 2nd Accused/Applicant have been shown to be legitimate payments for contracts executed. The transfer of legally acquired funds cannot amount to Money Laundering as charged. In the absence of the funds being proceeds of an illegal act, there can be no offence of Money Laundering.

 

It is an established principle, that an indictment or charge may not be quashed merely on the ground that it’s doubtful that the prosecution could secure a conviction against the accused person. All that is required of the trial court is to satisfy itself as to whether the evidence of the prosecution discloses a prima facie case, no matter how weak, against the accused person. See IKOMI VS. STATE (1986) NWLR (Pt.28) 340 @ 375 paragraph B; 371 – 372 paragraphs H – A per Aniagolu, JSC (of blessed memory); (1986) LPELR – 1482 (SC).

 

Where a plea of no case to answer has been raised on behalf of an accused person, it behoves the trial court to critically, albeit dispassionately, examine all the aspects of the evidence for the prosecution and the defence if any and the circumstances surrounding the case as whole, with a view to determining whether or not the accused did commit, or could have committed the offence.
See IKOMI VS. STATE (Supra) @ 372 paragraph per Aniagolu, JSC.

 

The 2nd Respondent is alleged to be the alter ego of Sagicon, Rivbbed and Saagaris Companies. At page 21, volume 1 of the Record, the said Mr. Ede Oghoro copiously referred to in the ruling has stated, inter alia, thus:

“…on Udamaka Okoronuwa, lodgements to her accounts in Oceanic Bank were at the instance of the Governor, paid from his monthly contingency funds…. the lodgements made into Sagicon, Rivbbed, Saagaris properties and Udoamaka with Oceanic were made on the instruction of His Excellency, the Governor. They were paid by either Charles Isiayei or myself. The instructions which are verbally are mostly directed to me… Silhouette Travels and Tours covers travels tickets for His Excellency’s household members who fall outside his official allowance. Funds for settlement of Silhouette is gotten from His Excellency’s Contingency Funds… due to the confidentiality of the transactions involving His Excellency on the payments, there are no written documents, approvals involving him, myself and to those concerned.

 

As repeatedly alluded to above, the criminal trial in the Federal High Court under Section 33(1) & (2) of the Federal High Court Act (Supra) and Section 277 CPA (Supra) is strictly summary in nature. It is entirely different from a trial in the State High Court upon information as in the cases of ABACHA VS STATE (Supra); IKOMI VS STATE (Supra). Undoubtedly, being a trial pursuant to Section 33(1) & (2) of the Federal High Court Act (Supra) vis-a-vis Section 277 of the CPA, the 170 count charge against the Respondents (Accused Persons) could not by any stretch of imagination be said to be improper or ultra vires the provisions of Section 36 of the 1999 Constitution (Supra). The reason being that in summary trials, as in the instant case, proof of evidence do not accompany the charge. Thus, as was authoritatively held by the Supreme Court –

 

Where the accused is not satisfied with the information attached to the charge in a summary trial he is expected to apply to the court. To order the prosecution to provide more facts to the accused person is entirely in the courts discretion See UWAZURUIKE VS. STATE (Supra) @ 18 – 19 paragraphs D – B per Rhodes-Vivour, JSC.

 

It needs to be reiterated that the exercise of discretion by a court is not merely as a matter of course. It’s trite, that a discretionary power must be exercised by the court not only judicially, but also judiciously. In the instant case, it’s so crystally obvious that the Lower Court was in error to have made a finding of fact with far-reaching conclusive effect, as if a formal trial had been conducted upon testimonies on oath and relevant documentary evidence admitted. With utmost possible deference, that is very wrong. And I so hold. See UWAZURUIKE VS. STATE (Supra) @ 18.

 

Having due regard to the statements of witnesses and the various mind boggling documents on record, I agree with the Appellant’s submission, that the Lower Court was wrong to have made a finding of fact with conclusive effect as if a formal trial had been conducted upon testimonies on oath and relevant documentary evidence tendered and admitted. There is every cogent reason for me to say that the lower court, with due possible deference has failed to keep the vision thereof unclouded by the dust of conflict. Yet, it’s trite that though Justice may symbolically be painted blind, she ought to be blind indeed only to fear, favour, affection or ill-will (prejudice), but clear to see which way lies the truth, and the less dust there is the better. See JONES VS. NATIONAL BOARD (1957) 2 QB 55 per Lord Denning, MR.

 

In the instant case, the Lower Court most regrettably, assumed that it had an unfettered discretionary power to abort the trial by discharging and acquitting the Respondents. Yet, the case was not tried and determined on the merits. Thus, the entire decision of the Lower Court has amounted to a travesty of justice. It was a futile exercise, of a discretion. It was an exercise of a crooked cord of discretion. As aptly held by the House of Lords more than four decades ago –

“To use the language of coke, this would be to substitute the uncertain and crooked cord of discretion for the golden and straight met-wand of the law.” See PETTITT VS. PETTITT (1971) HC 777, per Lord Hodson @ 808.

 

It must equally be reiterated, that any decision based on mere presumptions or speculations rather than on rule of law and credible evidence on record, as in the instant case, is perverse thus liable to be set aside. See UDENGU VS. UZUEGBU (2003) 34 WRN 1, wherein the Supreme Court authoritatively reiterated the trite fundamental principle, thus:

 

A perverse decision of a court can arise in several ways. It could be because the court, the facts or evidence or it misconceived the thrust of the case presented; or took irrelevant matters into account which substantially formed the basis of its decision or went outside the issues canvassed by the parties to the extent of jeopardizing the merits of the case; or committed various errors that failed the case beyond redemption. The Hallmark invariably, in all this a miscarriage of justice, and the decision must be set aside on appeal. Per Uwaifo, JSC @ 15, lines 15 – 20. See also ATOLAGBE VS. SHORUM (1985) 1 NWLR (Pt. 2) 360; ADEMORA Vs. AJUTO (1988) 3 NWLR (Pt.80) 1; OVERSEAS CONST. Co. NIG. LTD vs. CREEK ENT. NIG. LTD (1985) 3 NWLR (Pt.13) 407; MOGHALU VS. WOBO (2005) 11 WRN 115 @ 133.

 

In the circumstance, therefore, the answer to issue No. 3 ought to be in the negative, and same is resolved in favour of the Appellant.

 

Hence, having resolved all the four issues in favour of the Appellant, against the Respondents, there is no gainsaying the fact that the appeal is grossly meritorious, and it’s hereby allowed by me. The Ruling of the Federal High Court, holden at Asaba, Delta State, which was delivered by Mercel I. Awokulehin, J. on December 17, 2009 is hereby set aside.

 

Consequently, the Suit No.FHC/ASB/1C/2009 involving the parties herein is hereby remitted to the Federal High Court for reassignment by the Chief Judge for trial before another Judge.

 

 

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.:

I have read in draft the lead Judgment prepared by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, JCA. In my considered view, his lordship has clearly and painstakingly too, dealt with the issues for the determination of the appeal and I am in complete agreement with the manner in which the said Issues were resolved. I have nothing useful to add to the Judgment.

 

In the circumstance, I too find the appeal to be meritorious and allow the same. Accordingly, the ruling delivered by the Lower Court on 17/12/2009 in Suit No. FHC/ASB/1C/2009 is hereby set aside. I also abide by the consequential order remitting the case to the Federal High Court for trial before another Judge of that Court.

 

 

TOM SHAIBU YAKUBU, J.C.A.:

I was opportune  to have read before now, the draft of the judgment just delivered by my Lord, Hon. Justice I. M. M. SAULAWA, JCA. I am fully satisfied with the exhaustive and lucid resolution of the issues thrown up for determination in the appeal, by his Lordship, such that he has left no space for me, to add anything more useful to his reasoning and conclusion thereof.

I abide by all the consequential orders made in the lead judgment accordingly.