HIGH COURT OF NIGERIA IN THE ASABA JUDICIAL DIVISION HOLDEN AT ASABA ON THURSDAY THE 17TH DAY OF DECEMBER, 2009
BEFORE THE HONOURABLE JUSTICE MARCEL I. AWOKULEHIN – JUDGE
CHARGE NO.: FHC/ASB/IC/09
FEDERAL REPUBLIC OF NIGERIA ……………… COMPLAINANT
AND
1. JAMES ONANEFE IBORI
2. UDOAMAKA OKORONKWO (NEE ONUIGBO)
3. CHIEDU EBIE
4. MER ENGINEERING NIG. LTD.
5. BAINENOX NIG LTD.
6. SAGICON NIG. LTD ……………………… ACCUSED
RULING DELIVERED IN OPEN COURT
The Accused persons herein were arranged before this court on a 170-count charge dated 3/3/2008 but filed on the 12th of same month and year.
To reproduce the 170-count charge here will be a Herculean task, the best that can be done in the circumstance is to adopt the said charge as filed on the aforementioned date.
Before considering the application which makes this Ruling imperative, it is pertinent, in my view, to give a brief history of this case.
The 1st, 2nd, 4th, 5th and 6th Accused persons were arraigned before the Federal High Court, Kaduna on the 13th of December, 2007 on a 103-count charge to which all the Accused persons pleaded not Guilty. The Prosecution on the 11/1/2008 filled an Amended charge of 129 counts and again all the Accused persons pleaded not guilty to the charge as read. The Prosecution 12/3/2008 filled a further Amended charge of 170 counts against the original Accused persons and included one CHINEDU EBIE as the 3rd Accused person. Once more, all the Accused persons pleaded not Guilty to all the Counts in the charge as laid before the court.
On the 18/2/2008, the Accused persons through their counsel filled a joint Application praying the Federal High Court, Kaduna for the following Orders:
1. AN ORDER transferring this matter to the Chief Judge of the Federal High Court for onward transfer and assignment to the Judicial Division where the offences in the 129 Counts in this Charge were allegedly committed on the ground that continuing the matter in Kaduna is:
i. Contrary to the provisions of the Federal High Court Act;
ii. Grossly violates the Applicant’s right of Fair Hearing, particularly the right and opportunity to adequately prepare their defence to the 129 Counts made against them;
iii. Kaduna is a forum non convenience chosen by EFCC for reasons of forum shopping.
2. AN ORDER that the Presiding Judge Honourable M.L SHUAIBU, J. rescue from further participation in the above trial on the grounds that the infringements disclosed on (I) constitutes sufficient likelihood of bias.
3. AND for such further and other Orders as this Honourable Court may deem fit to make in the circumstances.
On the 10/3/08, my Learned Brother SHUAIBU J. dismissed the application. The Accused persons being dissatisfied with the decision appealed to the Court of Appeal, Kaduna division. The court of Appeal Kaduna, on the 19th day of December, 2008 delivered its judgment and allowed the appeal ordering that the matter be transferred to the Federal High Court with requisite jurisdiction over Delta State where the alleged offences were said to have been committed. Consequently, the matter was transferred to the Federal High Court, Asaba Judicial division hence this Court is now seized of the case.
The Accused persons were arraigned before this court on the 27/4/09 but no plea could be taken as the 2nd Accused was not present in Court. The Prosecution informed this court that the 2nd Accused had been arrested in London and charged to Court there on similar charges. This Court obliged the request of the Prosecution and adjourned the matter to enable the Prosecution produce the 2nd Accused person in Court.
When the matter came up on 28/7/09, the Learned Senior Advocate for the Prosecution informed this Court of the refusal of the British Government to release the 2nd Accused to face her Trial here in Nigeria. Whereupon, the Learned Senior Counsel for the Accused persons informed this Court that the defence had filed a Motion to quash the 170 Count-charge against the Accused persons. The Ruling therefore relates to the said application.
The Motion on Notice dated and filed on 28/7/09 and brought pursuant to the inherent jurisdiction of this court sought the following reliefs:
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i. 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.
ii. None of the Counts disclose a prima facie case against any or all the Accused persons.
iii. The Accused persons are not in any way linked to the offence of Money Laundering as charged by the prosecution.
iv. Constitutionally, the charges are incompetent as they constitute Delta State business of affairs which the Federal Government of Nigeria or any of its Agencies such as the EFCC is incompetent to inquire into.
2. AND for such further or other Orders as this Honourable Court may deem fit to make in the circumstances”. The Application was supported by a 7 paragraph Affidavit including a document titled “Review of Ibori Charges – Categorization”.
In accordance with the Federal High Court (Civil Procedure Rules 2009 the Applications and Respondents Learned Senior Counsel filed Written Addresses on 4/8/09 AND 17/8/08 respectively. The written Addresses were adopted on 28/10/09 after which both Counsel made further oral submissions.
For the Accused/ Applicants, J.B. DAUDU SAN, submitted three issues for determination. These are:
Whether the Prosecution has made out a prima facie case against any or all of the Accused persons in respect of any or all of the 170 Counts contained in the criminal charge preferred against them before this Honourable Court?
2. Should this Honourable Court find that a prima facie case has been disclosed on the face of all or any of the 170 Counts in issue, whether any or all of the Account persons are linked to the offences said to be so disclosed?
3. Whether the Complainant/Prosecutor has the locus standi to prefer the said 170 Counts against the Accuse persons when the subject matter of the said Counts are domestically within the purview of the Delta State Government, which Government has neither complained not authorized the EFCC (a Federal Agency) to take up the proceedings.
Arguing Issue 1 and 2 as stated above together. Learned Senior Counsel for the Applicants submitted that the Count has inherent jurisdiction to quash an information where there is no disclosure of an offence and trial will amount to abuse of Court process. Furthermore, that such charge can be quashed for good reasons especially where no prima facie case manifests against the Accused persons. He referred to the following cases: IKOMI VS. THE STATE (1986)3. NWLR (Pt. 28) PAGES 366-368 and ABACHA VS. STATE (2002)2 NWLR (Pt. 779) PAGE 437 @ PAGES 484-486.
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He submitted that where the Motion to quash is predicated on Section 167 of the Criminal Procedure Act, then the Objection must be taken immediately, he cited and relied on the following cases. FEDERAL REPUBLC OF NIGERIA Vs. ADEWUNMI (2007)10 NWLR (Pt. 1047) PAGES 399 @ PAGES 423 – 424, IKOMI Vs. THE STATE (Supro) and R Vs. CHAPPLE & DOLING BROKE 17 COX 455. The Learned Senior Counsel referred to Section 33(1) and (2) of the Federal High Court Act in that regard. Still on the two issues being argued together, he submitted that once there is established on the face of the materials presented by the prosecution, no prima facie case made against the Accused persons or where there is no link or nexus between the Accused persons and the alleged offences, then the Court must discharged them.
He referred once more to IKOMI VS. THE STATE (Supra) @ PAGE 483 AND WIKE VS. FEDERAL REPUBLIC OF NIGERIA (Unreported decision of the Abuja Division of the Court of Appeal) in Appeal No. CA/ABJ/85c/2009 delivered by LOKULO – SODIPE, JCA @ PAGE 15-16. It was his further submission that in considering this application, the Court is to consider closely the materials placed before it by the Prosecution. These will include: The counts in the charge, witness statements, copies of documents proposed to be tendered and other exhibits, statements of the accused persons etc. He referred for that Proposition on the case of ADAKU VS. FEDERAL REPUBLIC OF NIGERIA (2009) 9NWLR (Pt. 1146) page 370 @ 397 Paragraph C-F per BADA, JCA. At this stage, the learned Senior Counsel proceeded to analyze the 170-Count charge. Apart count 66, all other counts are alleged to be offences against Sections 14 (1). 16 and 27 of the Money Laundering (Prohibition) Acts, 2003 and 2004. The offences were classified into 13 categories as set out in Exhibit I annexed to the supporting Affidavit.
The learned Senior Counsel argued further and identified all the 170 counts as “Stand Alone” offences i.e. Offences alleging Money Laundering simpliciter without disclosing the underlying criminal conduct. He further submitted that where Money Laundering offences are proceeded with on the same indictment as the underlying crimes, the underlying criminal conduct will be proved as part of the proceedings to the requisite standard. Further, that where the Money Laundering proceedings are “stand alone”, it is necessary to prove the underlying in “stand alone” Money Laundering Prosecution, though, it is not necessary in “stand alone” Money Laundering Prosecutions to wait for a conviction in relation to the criminal conduct in the underlying or predicate offences giving rise to the criminal property. He referred to ARCHBOLD CRIMINAL PLEADINGS, EVIDENCE & PRACTICE 2009 EDITION Paragraphs 26:11. It was further submitted that the proof of evidence must demonstrate the predicate offence which render the sums mentioned in the 170 counts tainted money. Predicate or underlying offences, said Learned Senior Counsel range from and include offences such as theft, drug trafficking, terrorism, corruption, fraud, abuse of public office, etc. He submitted that at this stage charge must be dismissed because of the absence in any manner, evidence suggesting a predicate offence or offences. It was further argued that to sustain a charge under section 14(1) of the Money Laundering (Prohibition) Act, 2004, it is incumbent on the prosecution to show the following:
(a) Accused must have converted or transferred resources or property from which traffic in narcotic drugs or psychotropic substances or any other crime or illegal act to avoid the illegal consequences of his action, or
(b) That the Accused engaged in any of the foregoing acts with the aim of disguising the illicit origin of the resource or property, or
(c) Aided any person involved in the illicit traffic in narcotics, drug or psychotropic substances or any other crime or illegal act to evade the illegal consequences of his actions, or
(d) Collaborated in concealing or disguising the genuine nature, origin, location, disposition, movement or ownership of the resources, property or right thereto derived directly or indirectly from illicit traffic in narcotic drugs or psychotropic substance or any other crime or illegal act. The Learned Senior Council then proceeded to consider the Proof of Evidence viz-a viz the 13 classification of the 170 Count charge as earlier mentioned.
In summary, he submitted in respect of the 13 categories in which the offences in the 170 Counts were grouped, that mere payments of money allegedly from a Government account into the 1st Accused account is not evidence of criminality. That the statements of the prosecution witnesses did not state that payments were illegal or unlawful. Also that Counts are inchoate in that they failed to disclose the Delta State Government account from where the sums alleged were transferred from or removed. The mode of concealment, he continued, is also not stated in the proof. Further, that high ranking Delta State Government officials at the material time of the charge, made statements and none of them alleged criminality in respect of the various sums paid or transferred to different accounts.
Finally, the Learned Senior Counsel submitted that the complaint lacks demonstrative basis to have charged the Accused persons to Court for the alleged Money Laundering offences. On that basis, he urged this Court to quash all the 170 Counts brought against the Accused persons.
For the Prosecution, the Learned lead Counsel, I. ISIYAKU SAN, submitted one issue for determination, to wit:
“Whether from the Proof of Evidence accompanying the Counts on the charge sheet, there is prima facie case linking the Accused persons to the offences alleged against them”.
Arguing this lone issue, the Learned Senior Counsel conceded that where information does not disclose the commission of an offence, same is liable to be quashed. He cited and placed reliance on the case of IKOMI Vs. THE STATE (supra). It was his further argument that a prima facie case must be made out against the Accused persons, that is to say, a situation where the Accused persons have something to explain. He referred to the case of ABACHA Vs. STATE (Supra). It was stated further that a prima facie case must be made out against the Accused persons, that is to say, a situation where the Accused persons have something to explain. He referred to the case of ABACHA Vs STATE (Supra) in support of the above principle of Law. He also relied on the case of AJIDAGBA Vs INSPECTOR GENERAL OF POLICE (1958) SCWLR @ PAGE 60. He said further that even circumstantial evidence from which it can be inferred that an Accused person could have committed the offence will be sufficient. That whether there are other co-existing circumstance which will weaken that inference or whether the evidence leads irresistibly to Accused guilt can only be determined at the Trial. The Learned Senior Prosecution submitted that the charges are under the relevant Laws as at the time the offences were alleged to have been committed. On the ingredients of the offence of Money Laundering involving transfer of resources as related to the instant case, he submitted that they include:
(a) That the Accused persons transferred resources;
(b) That the said resources were derived directly or indirectly from an illegal act; and
(c) That the transfer was done with the aim of either,
(i) Concealing or disguising the illicit origin of the resources,
(ii) Aiding any person involved in a crime or an illegal act to evade the legal consequences of his action.
Where collaboration is alleged, Learned Senior Counsel submitted that the ingredients will include:
(a) That the Accused person 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.
On the issue of allegation of retention, Learned Senior Counsel submitted that ingredients include:
(a) That the Accused retained the proceeds of a 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;
(d)(i) That he knew or suspected that other persons 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 in possession of it knowing same to have been in whole or part, that person’s proceeds of a criminal conduct.
Moving to specific Counts in the charge, the Learned Senior Counsel referred to instances of transfers, collaborations and retentions as contained in the Proof of Evidence. He submitted that the statement of CHARLES ISIAYE, the Accountant in the Delta State Government House and OGHORO EDE, the Principal Private Secretary to the 1st Applicant are relevant. He further submitted that the 1st Applicant, from the proof of evidence, failed to make full disclosure almost some of his foreign account and transactions especially concerning properties contrary to Section 27(3)(a) of the EFCC Act.
The Learned Senior Counsel submitted that on the authorities, what is required of the Prosecution at this stage is to show an “arguable case”.
Lastly, Learned Lead Prosecuting Counsel urged this Court to strike out issue No. 3 as same has been abandoned by the Applicants. Based on the above arguments, the Learned Senior Counsel urged this Court to dismiss the Applicant’s application and hold that from the Proof of Evidence, an explanation by the Accused persons is necessary.
As mentioned earlier, on 12/10/09 the Learned Senior Counsel for both parties offered additional oral submissions to highlight some salient points in their Written Addresses. The Learned Senior Counsel for the Accused/Applicants referred to the paragraphs of their Affidavit in Support said to have offended Section 87 of the Evidence Act and in countering the argument proffered by the Learned Senior Counsel for the Prosecution simply referred proffered by the Learned Senior Counsel for the Prosecution simply referred this Court to the case of UKET Vs. F.R.N. (2008) ALL FWLR (Pt. 411) PAGE 932@937. He contended that this is not a corruption trial nor one against fraud or misappropriation against the Accused persons. That it is just a Money Laundering matter with specific legislation which is the Money Laundering Act either of 2003 or 2004 with a unique characteristic in that it envisages a predicate offence. He referred to the opening sentence of Section 14(i) saying the word is “any other illegal act or crime and argued that by the Ejusdem Generis Rule of Interpretation, the criminal act must truly be a criminal act. He submitted that throughout the entire proof of Evidence, there is no predicate offence. That for Money Laundering to take place there must be complete proof of a criminal act which is absent in this case, hence their contention that there is no basis to proceed to trial. Referring to the Respondents reply, the Learned Senior Counsel pointed to the mention of unconventional payments from Security votes and contingency funds (See paragraphs 4.8 and 4.9 of the Respondents Written Address). He went further to contend that the fact that a payment is unconventional does not make it a crime. He submitted that the unconventional payments are backed by vouchers.
He further contended that if conduct is tagged as unconventional as a basis for prosecution, such conduct should be linked to a written Law. He referred to section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria and submitted that the illegal or criminal act must be covered by a written Law. That requirement, Learned Senior Counsel opined, the Respondent has failed to fulfill. He then urged this Court to quash the 170 Count charge and discharge the Accused persons.
In reply, the learned Senior Counsel for the Prosecution read out the provisions of Section 14 (i) OF THE Money Laundering Act and submitted that the Ejusdem Generis rule is not applicable to Section 14(i) but can only be called in aid where the specific words are limited in scope of an identical thing named in the Section. He referred to the cases of BUHARI VS. YUSUF (2003) 14 NWLR (Pt. (41) PAGE 446 @ 497 AND A.C. VS. INEC (2007) 12 NWIR (Pt. 1048) PAGE 222 @ 259. He submitted that the rule simply means when there are general words following particular words, the general words should be construed or confined to things of the same kind as specified. He then referred to the case of S.P.D.C Vs FBIR (1996) 8 NWIR (Pt. 466) PAGE 256 @ 290 wherein the Supreme Court warned that the Ejusdem Generis Rule should be treated with caution. He argued that there is no specific word listed in Section 14 (i) and that the Courts in the interpretation of statute must consider the whole Act. The Learned Senior Counsel invited me to be persuaded by the decision of my Learned Brother in the case of FEDRAL REPUBLIC OF NIGERIA VS. KALU & ORS. In Suit No. FHC/ABI/CH/56/07. He then urged this Court to dismiss the application.
It is worthy to note that there is no disagreement amongst both Learned Senior Counsel for the parties on the very well-defined and articulated position of the Law with regard to an application of this nature. They are essentially in agreement on this state of the Law and basically relied on same authorities in support of their respective positions. That point of divergence, however, is on how these well laid down principles of Law be applied to the facts and circumstances of this case.
Before I delve into a consideration of the merit or otherwise of the extant application, I shall first deal with the Preliminary Objection raised by the Prosecution seeking to strike out paragraphs 3(f) – (j) and 4 of the Applicant’s Supporting Affidavit and the Ejusdem Generis Rule as it relates to Section 14(i) of the EFCC Act and other statues generally.
Learned Senior Counsel for the Prosecution argued that paragraphs 3(f) – (j) and 4 contain legal arguments and conclusions thereby contravening the provisions of Section 87 of the Evidence Act, Cap. 112 of the Laws of the Federation.
In reply, Learned Senior Counsel for the Accused/Applicants argued that the said paragraphs did not contravene Section 87 of the Evidence Act and placed reliance on Section 89 of the same Act. He further argued that in certain special matters, the Affidavit may contain opinions of the deponent. He drew the attention of this Court to Affidavits filed in undefended lists actions and urged this Court to overrule the objection.
Now, Section 87 of the Evidence Act relied upon by the Prosecution provides as follows:
“An Affidavit shall not contain extraneous matter, by way of objection, or prayer or legal argument or conclusion.”
Section 89 of the said Act provides thus:
“When such a belief is derived from information received from another person, the name of his informant shall be stated and reasonable particulars shall be given respecting the informant and his particulars and the time and circumstance of his information”.
Paragraphs 3 of the Supporting Affidavit thereof states as follows:
“That I am in addition to the facts within my knowledge information by MR ALEGEH, SAN as to the following facts in Asaba at about 4pm on the 27th of July, 2009 and I verily believe him thus ………… From the foregoing, it is apparent that the deponent in respect of paragraph 3 was not disposing to facts within his personal knowledge but to information received from MR ALEGEH, SAN. The time, place and circumstance of this belief were dearly set out. In the light of the above. I am of the view and I so triad that paragraph 3 of the Supporting Affidavit complies fully with the provisions of Section 89 of the Evidence Act”.
However, same cannot be said of paragraph 4 of the said affidavit which in my view, contains opinion, legal arguments and conclusions contrary to the provisions of Section 87 of the Evidence Act. I hold that paragraph 4 of the Supporting Affidavit contravenes the provisions of Section 87 of the Evident Act and is hereby struck out. In essence while I do agree as a general rule that affidavit evidence must deal with facts and avoid matters of inference or conclusions, it is now settled that an application to quash is in the nature of a Preliminary Objection in which case supporting Affidavits are unnecessary. What is important is for the Accused/Applicant to state the grounds of the Preliminary Objection. See UKET Vs. FEDERAL REPUBLIC OF NIGERIA (Supra @ page 929 ratio 5.
On the Ejusdem Generis Rule of Interpretation the sum total of the submission of Learned Senior Counsel for the Applicants, J.B. DAUDU SAN, is that this Court ought to follow the general rule of construction of statute as espoused in the Ejusdem Generis rule of construction in the interpretation of Section 14(1)(a) and (b) of the Money Laundering (Prohibition) Act 2004. He contended that the provision by virtue of the Ejusdem Generis rule limits “any other crime or illegal act” used in the section to only funds derivable from offences traceable to narcotic drugs and psychotropic substances. He urged on this Court to hold that the present charge is clearly out of the purview of section 14(1) of the Money Laundering (Prohibition) Act.
The Learned Senior Council for the Respondent, I. IBRAHIM, SAN on the other hand submitted that the Ejusdem Generis rule is not applicable in the construction of Section 14(1). I have considered the submissions of learned senior Counsel for both parties.
The narrow issue for consideration is on the point whether or not this Court should call aid the Ejusdem Generis rule in the construction of Section 124(1) of the Money Laundering (Prohibition) Act, in other words, whether the rule is of general application or is limited in scope.
For a better appreciation of the Ejusdem Generis rule, permit me to examine some Supreme Court decisions on the point. In the case of CHIEF GAIN FAWEHNINMI Vs. I. G.P. & ORS. (2002)7 NWIR (Pt. 767) @ 605, UWAIFO JSC who delivered the leading judgment of the Court, had this to say on page 683 and I quote “Ejusdem Generis rule helps to confine the construction of general words within the genus of special words which they follow in a statutory provision or in a document. One or two examples will suffice to illustrate the rule as closely as possible to the situation in Section 308(b). in ASHBURY RAILWAY CARRIAGE & IRON Co. Vs. RICHE (1875) L.R.H.L. 653 the statement in a Memorandum of Association was that one of the objects of the Company was “to carry on the business of Mechanical Engineering and general contractors:. The House of Lords in CAINS LC. said that the expression “General Contractors” was limited by the previous words, “Mechanical Engineers” and that it aught to be confined to the making of contracts connected with that business. In ATTRONEY GENERAL VS SECOMBE (1911)2 K.B 688, Section 11(1) of the Customs and Inland revenue Act 1889 which referred to gifts “retained to the entire exclusion of the done or of any benefit to him by contractor or otherwise”, came up for interpretations as to what the words “or otherwise” delimited. It was held that those words must be confirmed to an enforceable arrangement of a sort which was Ejusdem Generis with Contract.”
It is my view that if Section 14 (1) was as all encompassing as learned senior counsel for the Respondent has argued, the special words relating to narcotic drugs and psychotropic substances would not have been mentioned before the words “any other crime or illegal act”. Perhaps the drafters of the Act would have criminalized all movement of money derived from “crime or illegal acts” in the said section.
It must be stressed that Ejusdem Generis rule is of general appreciation to the construction all statues and without exception. 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 of 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 case of RUHARI Vs. YUSUF (Supra) referred to by the Learned Senior Counsel for the Respondent, the Supreme Court did not deviated from the age long principle of statutory interpretation enunciated in the Ejusdem Generis rules. In fact the cardinal issues in the case was “any other person who took part in the conduct of an election” and His Lordship, UWAIFO JSC opined that a politician who participated could be regarded as a necessary part. The bottom line is “election".
In the instant case, I respectfully do not share the view that Section 14(1) of the Money Laundering (Prohibited) Act, 2004 envisaged ALL funds alleged to be illegally acquired otherwise the preceding words would have been unnecessary. The only responsible thing to do in the circumstance is to apply the Ejusdem Generis rule in the interpretation of Section 14(1) of the Money Laundering (Prohibited) Act to achieve its intendment and I so hold.
Now, the Accused/Applicants formulated 3 grounds for praying this court to quash the charges preferred against them but failed to canvass any argument on issue 3. That wise, I am in total agreement with the Learned Senior Counsel for the Respondent that the said issue has been abandoned and is hereby struck out.
In an application of this nature, I consider it necessary to place at our disposal the legal meaning of the phase “PRIMA FACIE”. In AKPAMA UKET VS. F.R.N. (Supr) @ Page 926 Paragraph 4, the phrase was defined thus “Prima Facie case only means that there is ground for proceeding. But a Prima facie case is not the same as proof which comes later when the Court has found whether the accused is guilty or not guilty and the evidence discloses a Prima Facie case when it is such that if uncontradicted and if believed, it will be sufficient to prove the case against the accused. A Prima Facie case is established where after examining the proofs of evidence, there is something that requires on explanation from the Appellant. That is to say, the applicant/Accused person must be sufficiently linked to the offence where an explanation is necessary from him at the trial.”
In ABACHA VS. STATE (2000) 11NWLR (Pt. 779) page 486, Paragraph D-F BELGORE JSC concluded that “The best definition is the one proffered in the Indian case of SHER SINGH VS. JITENEL – DRANTEN (1931 11R 59 CAL. 275 quoted with approval by the Federal Supreme Court in AJIDAGBA VS. INSPECTOR-GENERAL OF POLICE (1958) SCNLR @ page 60.
Having gotten the due as to what prima facie means, I shall now proceed to carefully consider the 170 count charge and the proofs of evidence in support filed by the prosecution.
Apart from count 66, all the other counts are alleged to be offences against section 14(1), 15(2)(b) and 16 of the Money Laundering (Prohibition) Act 2003 and 2004 and section 27(3) (a) (b) and (c) of the Economic and Financial Crimes Commission Act, 2004.
I consider it pertinent to reproduce verbatim the said sections for ease of reference and our appreciation.
“Section 14(1); Any person who-
(a) Converts of transfer resources of properties derived directly from traffic in drugs and psychotropic substances or any other crime of illegal act, with the aim of concealing or disguising the origin of the resources or property or aiding any person involved in the illicit traffic in narcotic drug or psychotropic substances or any other crime or illegal act to avoid the illegal 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 right thereto derived directly from traffic in narcotic drugs psychotic substances or any other crime or illegal act, commits an offence under this section and is liable on conviction to a term of not less two years or more than three years”.
Section 15(2) “A person who commits an offence under subsection (1) of this section shall be liable on conviction...
(a) In the case of an offence under paragraph (a)-(c) of subsection (1) to imprisonment for a term not less than 2 years or more than 3 years.
(b) In the case of an offence under paragraph (d)-(f) where the offender-
(i) Is an individual, a fine of not less that N250, 000 or more than 1 million Naira or a term of imprisonment not less than 2 years or more than -------years or both fine and imprisonment.
(ii) Is a financial institution or any body corporate, to a fine of not less than N250, 000.
Section 16: Any person Who...
(a) Whether by concealment, removal from jurisdiction, transfer to nominees or otherwise retains the proceeds of a crime or an illegal act on behalf of another person knowing or suspecting that other person to be engaged in a criminal conduct or has benefited from a criminal conduct or conspiracy, aiding etc.
(b) Knowing that any property either in whole or in part directly or indirectly represents another person’s proceeds of a criminal conduct acquires or uses the property or has possession of it, commits an offence under this Act and is liable on conviction to imprisonment for a team of not less than 5 years or to a fine equivalent to 5 times the value of the proceeds of the criminal conduct or to both such imprisonment and fine”.
Section 27(3) (a) (b) and (c)
(3) Any person who-
(a) Knowingly fails to make full disclosure of his assets and liabilities; or
(b) Knowingly makes a declaration that is false or
(c) Fails, neglects or refuses to make a declaration or furnishes any information required, in the Declaration of Assets form, commits an offence under this Act and is liable on conviction to imprisonment for a term not exceeding five years”.
For practical purposes, I shall adopt the grouping of the 170 count charge into 13 categories as contained in Exhibit 3 of the Applicant’s Affidavit in Support.
The learned Senior Counsel for the Accused/Applicant and for the Prosecution have both identified the essential ingredients required in respect of these counts. The essential ingredients are as follows:-
1. That the Accused transferred resources and
2. That the said resources transferred by the Accused were derived directly or indirectly from an illegal act.
AND
3. That the Accused made the transfer with the aim of concealing or disguising the illicit origin of the resources or aiding any person involved in a crime or an illegal act to avoid the consequences of his actions; or
4. When collaboration is alleged, that the accused has collaborated in concealing or disguising the genuine nature, origin, locations, disposition, movement or ownership of the resources and that the resources were derived directly or indirectly from a crime or an illegal act.
The question to be answered is whether the proof of evidence does disclose a prima facie case in respect of counts 1, 2 and 3.
The prosecution has drawn attention to page 1029 which is the statement of the account of 1st Accused person at GUARANTY TRUST BANK, ASABA and which shows lodgements into the said account. The lodgements were made by one EDE OGHORO. On the other hand, the Accused/Applicants have argued that mere lodgement into the account without more does not amount to a prima facie case of money laundering. It was also argued that there is nothing to show that the money originated from Delta state Government Accounts as the alleged account from which the money was illegally transferred is not stated in the charge or disclosed in the proof of evidence. The Accused/Applicants have drawn attention to the statements of the Secretary to Delta State Government, The Finance Commissioner, The Accountant-General and the said EDE OGHORO and none of these officials was asked any questions about the said lodgements. I have calmly examined counts, 1, 2 and 3 and the entire Proof of Evidence to confirm the Evidence in respect of these counts. Apart from the statement of Account which is contained at pages 1027 to 1031 of the proof of Evidence, I have seen no other evidence however relating to these counts. There is no statement from any witness in respect of this count and even in the two statements of the 1st Accused he was not asked any question by his interrogators. The charges also alleged that the 1st Accused knew the amounts in issue represented proceed of crime but have made no attempt to establish that fact.
The Statement of Account shows lodgement by EDE OGHORO and not by the 1st Accused/Applicant. There is therefore no evidence that the 1st Accused/Applicant transferred any money whatsoever. There is no evidence to show the account of Delta State Government from which the funds were allegedly withdrawn as alleged. There is also no evidence that the money lodged into the 1st Accused/Applicant’s account was derived directly or indirectly from any illegal act. The fact of the money being from an illegal act is a critical ingredient of the offence and must be established by evidence. The money was allegedly paid directly into the 1st Accused/Applicant’s account. It is therefore difficult to understand how the ingredient of disguising the nature and ownership of the money can arise.
In all, I find and hold that there is no prima facie case disclosed against the 1st Accused/Applicant from the Proof of Evidence in respect of counts 1, 2 and 3 to warrant the trial of the 1st Accused/Applicant in respect of those counts. I have no hesitation in quashing the said 3 counts.
Counts 4-23 charge the Accused/Applicant collaborating with Professor AGBE UTUAMA (now under immunity by virtue of section 308 of the 1999 Constitution of the Federal Republic of Nigeria) by using his Law Firm Prime Chambers to conceal the genuine origin of various sums of money which formed part of the funds illegally withdrawn from the account of Delta State Government and which sum was derived from an illegal act with the aim of concealing the origin of the sums of money and thereby committed an offence punishable under section 14(1) of the Money Laundering (Prohibition) Act, 2003 and 2004.
Having earlier identified the essential ingredients of the offences charged under these Counts, it is now for me to determine whether the proof of evidence discloses a prima facie case in respect of the said Counts of the charged sheet.
I have carefully examined section 14(1) of the Money Laundering (Prohibition) Act 2003 which is in pari material with the same section of the 2004 Act. I have also reviewed the Statements of Account of Prime Chambers, payment tellers, deposit slips and cheques contained in pages 267-325, 1045-1056, 1058-1061 and 1064.
I have also carefully read the witness statements of the Finance Commissioner, EDE OGHORO and CHARLES ISIAYEI in respect of the counts. Also scrutinised is the Statement of Account of Prime Chambers and I have seen no payment made to the 1st Accused/Applicant. The Bank Statement shows payments to the Law Firm also shows that the money so paid to the Law Firm was paid out to third parties and were not retained in the account for the benefit of any other person. There is no evidence whatsoever that these payments were made on behalf of the 1st Accused/Applicant. Additionally, none of the witnesses stated in their statements that the payment was proceed of Criminal conduct. PROFESSOR UTUAMA who was then not under immunity, was never interrogated. The corporate documents of Prime Chambers established clearly that the 1st Accused/Applicant has no interest in the Law Firm either directly or indirectly. The mere showing of payment into the account of Prime Chambers without more does not amount to the offence of Money Laundering as charged.
There is no witness statement in the proof or any other document to show that the money was an illegal payment. I must quickly add that the issue of the said PROFESSOR AGBE UTUAMA having and/or running a Private Law Firm while serving as the Attorney-General of Delta State fails outside the scope of this matter and is not a matter to be determined in this application. From the above analysis, it is apparent that the proof of evidence has not disclosed a prima facie case against the 1st Accused person to warrant the trial in respect of the said count, I consequently hereby quash Counts 4-23 of the further Amended Charges.
IN respect of Counts 24 – 34, the Prosecution in the Respondent’s Written Address has proffered no arguments in opposition to the arguments of the Accused/Applicants contained in their Written Address. I would ordinarily have proceeded on the basis that the Prosecution has conceded the arguments of the Accused/Applicants in respect of those counts. However, I feel obliged to proceed to review the evidence in the proof of evidence in respect of the charges.
Those counts allege that the Accused/Applicant transferred various sums which form part of the sums illegally withdrawn from the account of Delta State Government and which sum was derived from an illegal act with the aim of concealing the origin of the said sums and thereby committed offence punishable under Section 14(1) of the Money laundering (Prohibition) Act, 2004.
The Accused/Applicants have attacked these charges on the basis that they are inchoate as they fail to disclose the accounts of the Delta State Government from which the sums were allegedly transferred and the account into which the said sums were transferred into. I have carefully examined the said Counts and I am inclined to agree with the Learned Senior Counsel for the Accused/Applicants that the charges are themselves defective. There is no iota of evidence in the proof of evidence in respect of those Counts. Proceeding from the above, I find that there is no prima facie case disclosed in respect of those Counts from the Proof of Evidence. Consequently, I hereby quash Counts 24 – 34 of the further amended Charges.
I now turn to Counts 35 – 49 of the Further Amended Charges. In those Counts the First Accused was charged with allegedly transferring various sums to a Company, SILHOUTTE TRAVELS AND TOURS LIMITED which sums formed part of funds allegedly withdrawn from the account of Delta State Government and which sum was derived from an illegal act with the aim of concealing the origin of the said sums and thereby committed an offence punishable under section 14(3) of the Money Laundering (Prohibition) Act, 2004. The evidence in the proof consist of statements of accounts of SILHOUTTE TRAVELS AND TOURS LIMITED, deposit slips and witness statements of EDE OGHORO and CHARLES ISIAYEI. The statements of EDE OGHORO and CHARLES ISIAYEI who made the lodgements into the accounts confirmed that the payments were made from the contingency funds of the Governor in respect of Travel Tickets. The statement of account of SILHOUTTE does not show any payments made to the 1st Accused person or retained therein for his benefit. I cannot see how payments for travel tickets made to a travel agency can amount, by any stretch of the imagination, to Money Laundering as charged. I have painstakingly read the entire Proof of Evidence and I have, surprisingly not seen any witness statement from any Director or Staff of SILHOUETTE TRAVELS AND TOURS LIMITED in respect of those payments. On the whole I find that there is no prima facie case made out from the proof of evidence in respect of Counts 35 – 49 to warrant the trial of the Accused persons in respect of these Counts. I therefore quash the said Counts.
In Count 50, the 1st Accused was charged with collaborating with Charter House Project and Investment Limited and ADEBIMPE POGOSON in concealing the genuine origin of the sum of N20, 000,000.00 (twenty million Naira), which funds formed part of the sum illegally withdrawn from the account of the Delta State Government and which was derived from an illegal act and thereby committed an offense punishable under Section 14(1) of the Money Laundering (Prohibition) Act, 2003. The evidence in the Proof of Evidence in relation to these Counts are the Bank Statements of Account of Charter House Project and Investment Limited; the Incorporation documents, deposit slip and the statements of CHARLES ISIAYEI and PAUL ASEME. The Incorporation documents show the two shareholders as ADEBIMPE POGOSON and VYONNE PRINCEWILL. There is no evidence whatsoever that the 1st Accused had any interest whatsoever in the Company. Interestingly, the company and its Directors who are alleged to have collaborated with the 1st Accused/Applicants are neither charged nor listed as witnesses in the proof. There is also the statement of PAUL ASEME at page 221 of the proof confirming the business of the Company and the source of the funds of the company. There is no contrary witness statement in the Proof of Evidence.
In the light of the foregoing, it cannot be reasonably argued that a prima facie case has been made out from the Proof of Evidence in respect of this Count. I find and hold that there is no prima facie case disclosed by the Proof of Evidence in respect of this Count to justify putting the Accused person on trial in respect thereof, I will also quash this Count.
In Counts 51 – 65, the Accused/Applicant is charged with procuring the 2nd Accused to retain in her account on his behalf, various sums amounting to N190, 125,000.00 (One hundred and ninety million, twenty-five thousand Naira) which sums form part of the funds illegally withdrawn from the account of Delta State Government which sum known to the 2nd Accused/Applicant to be proceed of 1st Accused/Applicant’s illegal act and thereby committed an offence contrary to Section 17(c) and punishable under Section 16 of the Money Laundering Acts 2003 and 2004 respectively.
The evidence in the proof in respect of these Counts are the statements of accounts of the 2nd Accused, the witness statements of the 1st Accused, 2nd Accused, EDE OGHORO and CHARLES ISIAYEI.
I have earlier on in the body of this Ruling reproduced the provisions of Section 16 of the Money Laundering (Prohibition) Act, 2003.
The essential ingredients of this offence have been identified by the Learned Senior Counsel for the Prosecution and the Accused/Applicants in their respective Written Addresses. The ingredients are:-
1. The Accused person must retain proceeds of an illegal act on behalf of another person; and
2. The Accused person must know or suspect the other person to be engaged in criminal conduct or that the other person has benefitted from a criminal conduct.
3. The Accused while having knowledge that property is wholly or partly, directly or indirectly represents proceeds of a criminal conduct, acquires or uses that property or has possession of it.
I have carefully examined the Counts and they relate to the 1st Accused only. The 2nd Accused is not charged in respect of these Counts either for the principal offence of retaining money in her account on behalf of 1st Accused/Applicant or for conspiracy. There is no evidence in the proof showing that the 1st Accused procured the 2nd Accused to retain any sum in her account or that any sum was retained in that account for the benefit of the 1st Accused. I have examined the 2nd Accused/Applicant’s Bank Statements of Account and it shows regular and normal deposit and withdrawals. It does not show any sum retained therein on behalf of the 1st Accused/Applicant. There is nothing t show that the payments made into 2nd Accused account were for proceeds of an illegal act or that the 2nd Accused had knowledge that the payments were proceeds of an illegal act. There is on the contrary, evidence that the 2nd Accused is a contractor with Delta State Government and that payments were made to her in respect of contracts executed by her companies.
I hold that the proof of evidence has not disclosed any prima facie case against the 1st Accused/Applicant that would require him to stand trial in respect of these Counts. I therefore quash Counts 51-65 of the Further Amended Charges.
Count 66 Charges the 1st Accused/Applicant with making a cash payment of S15,000,000 (Fifteen million Dollars) to the officials of the Economic and Financial crimes Commission in order to influence their investigations and thereby committed an offence punishable under Section 15(2)(b) of the Money Laundering (Prohibition) Act, 2004.
The evidence in respect of this charge are the witness statements of NUHU RIBADU, IBRAHIM LAMORDE and JAMES GARUBA. Their statements are to the effect that the money was collected from one DR. ANDY UBA in his residence and not from the Accused/Applicant. It is shocking that there is no witness statement from the said DR. ANDY UBA who can say whether or not the 1st Accused gave him money and the purpose for which the money was given and to whom he delivered the money.
Section 15 of the Money Laundering (Prohibition) Act, 2004 under which the charge is brought provides as follows:
“15(1) without prejudice to the penalties provided for illicit traffic in narcotic drugs, psychotropic substances, the laundering of drug money or the proceeds of a crime or an illicit act, a person who;
(d) makes or accepts cash payments exceeding the amount authorized under this Act,
(e) fails to report an intentional transfer of funds or securities required to be reported under
this Act, or
(f) being a director or employee of a financial institution contravenes the provision of
Sections 2,3,4,5,6,7,8 or 10 of this Act, Commits an offence under this Act.
2. A person who commits an offence under paragraph (d)-(f) where the offender
(1) is an individual, a fine of not less than N250, 000.00 or more than one million Naira or a
term of imprisonment of not less than 2 years or more than three years or to both
imprisonment and fine.
(ii) is a financial institution or anybody corporate to a fine of not less that N250,000,00.
There is no correlation between the evidence in the proof in respect of this Count and the essential ingredient of the offence charged.
I find that the Proof of Evidence has failed to disclose any prima facie case against the 1st Accused/Applicant to justify his being put on trial in respect of this charge. Accordingly, I hereby quash Count 66 of the Further Amended Charges.
The 1st, 3rd, 4th and 5th Accused/Applicants are charged in counts 67-106 with collaborating with one another to conceal the genuine origin of various sums which form part of funds illegally withdrawn from the account of the Delta State Government to offset a loan granted by United Bank for Africa Plc in favour of BAINENOX LIMITED and for the benefit of MER ENGINEERING LIMITED which sum was derived from an illegal act and thereby committed an offence punishable under section 14(1) of the Money Laundering (Prohibition) Act, 2004. The essential ingredients of an offence charged under section 14(1) of the Money Laundering (Prohibition) Act, 2004 have been highlighted earlier in this Ruling. The evidence contained in the proof in respect of these counts are the account opening forms and statement of account of the 4th and 5th Accused/Applicants, deposit slips and witness statements of 3rd Accused/Applicant or DR. EMMANUEL UDUAGHAN the then Secretary to the Delta State Government, LOVE OJAKOVO, Delta State Finance Commissioner, CHIMA AGBELE, Delta State Accountant General, EDE OGHORO and CHARLES ISIAYEI. The witness statements by the 3rd Accused/Applicant show that the 1st Accused was a director of the 4th Accused but resigned his directorship in 1999 upon becoming Governor of Delta State. The witness statement of DR. EMMANUEL UDUAGHAN shows that 4th Accused was a contractor to Delta State Government. The witness statements of 3rd Accused/Applicant and EDE OGHORO show that the 4th Accused/Applicant was being run and operated by one ADEBIMPE POGOSON. The Finance Commissioner and Accountant General of Delta State Government in their witness statements were not required to explain the payments in question. There is no witness statement from ADEBIMPE POGOSON in the proof of evidence. The payments of money into an account, without more, do not amount to Money Laundering under Section 14(1) of the Money Laundering (Prohibition) Act, 2004. There must be additional evidence that the money was derived from an illegal act and there is no such evidence in the proof in respect of the illegal act alleged. The absence of this crucial ingredient of the offence in this charge is fatal to these counts.
From the above, I hold that the proof of evidence fails to disclose a prima facie case in respect of Counts 67-106 to justify putting the 1st, 2nd, 3rd, 4th and 5th Account/Applicant to trial in respect of these counts. I hereby squash the said counts.
In counts 107-122, the 1st and 2nd Accused/Applicants are charged with transferring various sums to the account of the 1st Accused and that of Stantiope Investments Limited, a Company beneficially owned by 1st Accused/Applicant which sums were derived from an illegal act with the aim of concealing the illicit origin of the sums and thereby committed an offence punishable under section 34(1) of the Money Laundering (Prohibition) Act, 2004. The evidence in respect of these counts are Statements of accounts of 1st and 4th Accused/Applicants, account opening forms and various instructions for transfer of sums in accounts issued by the 4th Accused/Applicant’s company (signed by ADEBIMPE POGOSON). The Prosecution referred to a letter from the Crown Prosecution at pages 791 of the proof. I have carefully read the letter and the letter confirms that large payments were paid into the 4th Accused/Applicant’s by Venture Lagos and Chevron Nigeria. The letter also confirms that the said funds in the 4th Accused/Applicant’s account were transferred on the instructions of POGOSON.
The statement of accounts of the 4th Accused/Applicants also shows that several regular payments were made by SHELL NNPC CHEVRON and CHURCH OIL AND GAS and VENTURE LAGOS. There is however, no witness statement in the proof from any staff or official of these companies in respect of these payments. There is also no evidence from any witness statement that those were illegal payments.
I find that the evidence in the proof does not disclose any prima facie case against the 1st and 4th Accused/Applicants in respect of these Counts to justify their being tried in respect of these counts. I consequently, quash the said counts.
The 1st Accused/Applicant is charged in counts 123-133 with knowingly failing to make full disclosure of his assets in the Declaration of Assets form of the Economic and Financial Crimes Commission by not disclosing his ownership of bank account, beneficial interests and properties and thereby committed offence punishable under Section 27(3) (a) of the Economic and Financial Crimes Commission (Establishment) Act, 2004.
I had earlier reproduced verbatim the provisions of the said section. Under this section, for the prosecution to establish a prima facie it must show that the 1st Accused/Applicant “Knowingly” failed to make full disclosure of his assets of the time he was filling the Declaration of Assets Form. The said form filed by the 1st Accused/Applicant contains the endorsements by the 1st Accused/Applicant which were highlighted in the Accused/Applicants written Address as follows:
1. “I will as much as possible indicate here to the best of my recollection what is”
2. “Unable to say when, where and amounts or no, unless I check my records”
3. ”Items 12, 17, 18, 19-26 are beyond my recollection without checking my records. This I can do in due course”.
These endorsements by the 1st Accused/Applicant on the said form show clearly that he was filling the form to the best of his recollection and required confirmation from his records in respect of some areas in the form. The question here is, for purpose of thorough investigation, is it too much to give him time to refer to the said records? I think not for the reference and its outcome would have strengthened the outcome of whatever is found. There is no other evidence in respect of these counts in the record. Those endorsements negate the crucial ingredient that the accused “knowingly” failed to give full disclosure of his assets. Flowing from the above, I hold that there is no prima face case made out against the 1st Accused person in respects of these counts to warrant trying him in respect thereof, thereby quash the said counts.
The 1st and 2nd Accused/Applicants are in counts 134–147 charged with transferring various sums to purchase a property in the United kingdom in the name of a company beneficially owned by 1st Accused/Applicants and into the 1st Accused/Applicant’s account with Barclays Bank which sums were derived from an illegal act with the aim of concealing the illicit origin of the said sums and thereby committed offences punishable under section 14 of the Money Laundering (Prohibition) Act, 2004. The evidence in the proof in respect of these accounts are the statements of 1st and 2nd Accused/Applicants, their statements of accounts as well as corporate document of companies and deeds of conveyance. All the sums of money in these accounts were paid out of 2nd Accused/Applicants accounts. The 2nd Accused/Applicants have been shown to be a contractor and owns contracting companies. EDE OGHORO”S statement shows that 2nd Accused/Applicants was awarded contract 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 made 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.
Form the foregoing, I am convinced and hold that the proof of evidence does not disclose any prima facie case in respect of counts 134–147 of the further Amended Charge and I hereby quash the said counts.
The 2nd Accused/Applicants is charged in counts 148–167 with retaining in her personal account on behalf of the 1st Accused/Applicant various sums of money which formed part of funds illegally withdrawn from the account of DELTA STATE GOVERNMENT on the instruction of the 1st Accused/Applicant which sum the 2nd Accused/Applicant knew represented the proceeds of an illegal act by the 1st Accused/Applicant and thereby committed an offence punishable under Section 16 of the Money Laundering (Prohibition) Act, 2003 and 2004.
These counts are akin to counts 51 – 65 in which the 1st Accused/Applicant was charged for procuring the 2nd Accused/Applicant to retain various sum in her account on his behalf, I have however, noticed that there is no correlation between the amounts and the dates referred to in both sets of charge. The evidence in respect of these counts are the bank statements of 2nd Accused/Applicants and the Witness Statement of 2nd Accused/Applicant, Dr Uduaghan (Secretary to Delta State Government), Love Ojakovo (Finance Commissioner), Ede Oghoro and Charles Isiayei. The witness statement thereof shows that the 2nd Accused/Applicants was a contractor to Delta state Government and received payments for contracts executed for Delta State Government.
The bank statements show lodgments into her account and payments out of the account to several persons. The statement of account shows regular operation of the account. There is no amount in the account that is shown to have been retained on behalf of 1st Accused/Applicant. In fact, the sum referred to in the charges are shown from the statement of account, to have been spent by the 2nd Accused/Applicant. A clear example of this can be found at page 1087 of the proof. The amount charged in count 148 was deposited into the 2nd Accused/Applicant’s bank account at Oceanic Bank on 24th April, 2003. Upon the said deposit the account had a credit balance of N21,803,252.45. The 2nd accused thereafter issued cheque nos. 78 – 85 to various persons and by the 23rd of May, 2003 the balance in the account had reduced from N21,803,252.45k to N4,360,661.08k. This pattern holds true in respect of all other amounts deposited into her account. There is no evidence to suggest that payments originated from an illegal act. There is no evidence that the sums were retained in her account on behalf of the 1st Accused/Applicant. The evidence to the contrary shows that the payments were legitimate payments for contracts executed and that the sums were spent by the 2nd Accused/Applicant and not retained in the said account on behalf of the 1st Accused/Applicant. I have no hesitation in holding that the proof of evidence has failed to disclose a prima facie case in respect of counts 148 – 167 of the Further Amended Charges to justify putting the 2nd Accused/Applicant on trial in respect thereof. These counts are consequently hereby quashed.
The 6th Accused/Applicant is charged in counts 168–170 with retaining various sums in its personal account on behalf of the 1st Accused/Applicant which said sums were illegally withdrawn from the account of Delta State Government on the instruction of 1st Accused/Applicant, and which 6th Accused/Applicant knew to be produce of an illegal act by the 1st Accused/Applicant and thereby committed offences punishable under section 16 of the Money Laundering (prohibition) Act, 2003. The evidence in respect of these Counts are the bank statements of the 6th Accused/Applicant and the witness statements of the 2nd Accused/Applicant, Dr. UDUAGHAN (then secretary to Delta State Government, Love Ojakovo (Finance Commissioner) Ede Oghbto and Charles Isiayei The witness statements show that the 6th Accused/Applicant was a contractor to Delta State Government and received payments for contracts executed for Delta State Government. The payments so received were in excess of N1.8 billion. The statement of account of the 6th Accused/Applicant is at pages 1168 – 1262 of the proof. The statement of account shows several deposits and withdrawals by various persons. The statement of account shows that the account is in debit. The detail position of this account started on 12th September, 2006 (See pages 1249) and remained so until 30th November, 2006 see page 1262. There is no money retained in the said account on behalf of the 1st Accused/Applicant as agreed. What is retained in the said account is huge debt.
From the above, I find and hold that the proof of evidence has not disclosed a prima face case against the accused person to warrant a trial in respect of counts 168 -170 of the further Amended Chares, I hereby quash the said charges.
In summary, the prosecution framed a total 170 counts against the accused persons and correctly identified the essential ingredients of the offences for which the accused persons are charged. However, the proof of evidence supplied by the prosecution has failed to disclose only prima face case against any of the Accused/Applicant. The Prosecution failed to produce the evidence to show the essential ingredients of the offences charged. Critical corroborative evidence like the evidence of Dr. Andy Uba, Adebimpe Pogoson, Directors or Staff of Silhouette Travels and Tours Limited are not included in the proof of evidence. The witnesses who were interrogated and asked questions were not asked the critical questions that relate to the essential ingredients of the offences charged. The 3rd Accused person was originally listed as a prosecution witness and made a total of six (6) statements. In all his statements he was not asked by his interrogators the evidence relating to the charges that relate to him. The Statements of Witnesses in respect of count 66 were made on 12th December, 2007 after charges have been filed against the Accused/Applicant on 11th December, 2007 even though the offence charged was allegedly committed on 24th April, 2007.
There is no witness statement in the proof of evidence from any of the EFCC officers who purportedly investigated the case. There is also no interim or final report of the investigation carried out by the EFCC which are basic requirements in proof of evidence for criminal trials. There are four EFCC officers listed in the proof of evidence as identified by the Learned Senior Counsel for the Accused/Applicants in the written address, namely Bello Yahaya, Amusan Adesola, John Etim and Sanusi Mohammed – Strangely however, there is no statement from any of those EFCC officers in the proof of evidence.
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 point of evidence. While that may be so. It must however be noted that the duty lies on the Prosecution were an application is filed to quash charges for non-disclosure of prima facie case to highlight the evidence in the proof that establish the prima facie case to justly the trial of the accused person. See WIKE VS. FRN unreported decision of the Court of Appeal, Abuja Division in CA/ABJ/85C/2009. This, the prosecution has failed to do in the instant case.
I, accordingly, resolve the first issue for determination in favour of the Accused/Applicants and hold that the prosecution has failed to make out a prima facie case against any of the Accused/Applicant in respect of all or any of the 170 counts contained in the further Amended Charges preferred against the Accused/Applicant before this Court.
Having resolved the first issue for determination, it follows that the second issue for determination becomes otiose and thus not worthy to consideration.
Before I conclude this Ruling it must be noted that a Court of Law arrives at its findings and decisions based on the evidence placed before it by the contending parties. The pronouncement in AGBOR ELE VS. STATE (2006) all FWLR (pt. 309) page 852 Ratio 3 becomes instructive therein it was said and I quote “it must of necessity be emphasized that law should only be applied to facts of a case. It is not for the Court to manufacture such facts or move from law backwards to facts on the pretense of justice. It is further not the function of a trial Judge by his own exercise and ingenuity to supply the evidence or carry out mathematics of arriving at an answer which only evidence could supply”.
Again, in DR. OLU ONAGORUWA VS. STATE (1998) 1 ACIR Page 445 NIKI TOBI, JCA (as he then was) had this to say and I quote: “Criminal responsibility and guilt are exact human conduct which the law apportions to on accused person through evidence and evidence alone. They are not subject of moral speculations or suspicions. They are not based on assumptions but proved facts and nothing more and nothing less. No criminal law of a civilized legal system predicates as premises its crime detection and guilt apportionment machinery on mere moral speculation and suspicions. And ours is a civilized legal system with oil its inbuilt mechanism of investigation and apportionment of guilt. An accused person is either criminally responsible for on act or he is not. So also is guilt which results directly further a criminal act. There are no two ways about it.”
The Learned Jurist went further at page 495 of same case to say as follows and again I quote: “I want to say by way of recapitulation that it an elementary but most vital requirement of our adjectival law that therefore the prosecution takes the decision to prosecute, which is a fore runner or precursor to the charge decision, it must have at its disposal all the evidence to support the charge”. The above quotations speak for themselves and the applicability of same to the instant case.
Therefore, based strictly on the evidence before this Court, I hold that the application to quash dated and filed on 28/7/09 has merit and succeeds. Accordingly, the Further Amended Charges dated and filed on 3/3/08 be and are hereby quashed and the accused persons are hereby discharged.
That is the Ruling of this Court.
Signed: HON. JUSTICE MARCEL I. AWOKULEHIN
J U D G E. 17/12/2009
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