Amidst obvious indications of political interference and doubts by the citizenry about the motive behind certain arrests and investigations, Nigeria’s leading anti-graft Agency the Economic and Financial Crimes Commission (EFCC) has continued in its fight against money laundering and related offences. In doing this, one striking challenge the Commission has faced over the years is the task of securing convictions especially for high profile cases involving politically exposed persons in Nigeria. This is made even more daunting by the Country’s adversarial system of adjudication which puts the burden of proving the allegation of crime beyond reasonable doubt on the prosecution. However, the recent decision of the Supreme Court in the case of GABRIEL DAUDU v. FEDERAL REPULIC OF NIGERIA (2018) LPELR-43637 (SC) has unlocked a new vista in the adjudication of money laundering cases. This piece seeks to review the case and highlight salient point(s) that may significantly impact on Nigeria’s criminal adjudicatory process in the future.
Summary of facts and argument
In 2014, The EFCC filed charges bordering on money laundering against Mr. Gabriel Daudu, a Local Government Area Chairman between 2008 and 2011, and Hon. Albert Soje, a Majority Leader of Kogi State House of Assembly at the Federal High court in Kogi State. The prosecution alleged that huge sums of money were deposited into the accounts of Mr. Daudu at various times which did not match his earnings. The trial Court was not convinced by the evidence led by the witnesses for Mr Daudu. Accordingly, the trial Court discharged and acquitted Hon. Soje while Mr. Daudu was convicted on 75 of the 208 counts and acquitted and discharged on 133 counts. He appealed against the decision of the Federal High Court to the Court of Appeal which dismissed the appeal based on a preliminary objection raised by the FRN. Mr. Daudu further appealed to the Supreme Court.
Five issues were raised at the Supreme Court by Counsel to the Appellant, two of which are relevant to this piece viz: (1) Whether the Court of Appeal was right or correct in law when it affirmed the decision of the Federal High Court placing the onus of proving his innocence in the 75 counts of money laundering on the Appellant. (2)Whether the Court of Appeal was correct in law when it affirmed the decision of the Federal High Court that the prosecution had established all the ingredients of the offence of money laundering against the Appellant. Counsel to the Respondent raised two issues for determination by the Supreme Court, one of which is relevant to this piece to wit: Whether the prosecution has established the case against the Appellant beyond reasonable doubt.
Counsel to the Appellant contended that at the trial Court, the onus of proving the legality of lodgements made into the Appellant’s accounts was on the Appellant against the time honoured principle that the burden of proof in criminal matters rests on the prosecution thereby breaching the constitutionally guaranteed presumption of innocence of the Accused. Moreover, in reviewing the evidence, the trial Court failed to link the funds charged to the Ogori/Magongo Local Government funds claimed to have been misappropriated and converted in line with the legal requirement in S. 14 (1)(a) of the Money Laundering Prohibition Act requiring proof of predicate offence by the prosecution.
S. 14 Money Laundering (Prohibition) Act provides as follows:- “14(1) Any 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. (2) Any person who commits an offence under Subsection (1) of this Section shall be subject to the penalty specified in that subsection notwithstanding that the various acts constituting the offence were committed in different countries or places.
He further noted that the Court of Appeal also erred by shifting the onus of proof to the Appellant and not ascertaining whether the ingredients of money laundering had been proved. He relied on S.131. 132 & 135 of the Evidence Act, 2011 as well as S. 36(5) of the 1999 Constitution amongst other judicial authorities. For ease of reference, the provisions read thus;
s. 131 (1) Evidence Act : “Whoever desires any Court to give judgement as to any legal right or liability dependent on the existence of facts which he asserts must prove that the facts exist (2) when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person”.
s. 132 Evidence Act: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence were given on either side”.
s. 135 (1) Evidence Act: ” if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action. (3) In election matters, whether the commission of crime is in issue or not, proof shall be on the preponderance of evidence or balance of probabilities”.
s. 36(5) 1999 Constitution: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
On the other hand, Counsel to the Respondent contended that the trial Court did not reverse the onus of proof on the prosecution to prove its case beyond reasonable doubt. He distinguished between the legal burden of proof beyond reasonable doubt which is the responsibility of the prosecution in a criminal trial and the evidential burden of proof which swings from one party to the other in the course of trial. He further argued that the totality of the evidence before the trial Court if examined, would show that the prosecution had proved its case beyond reasonable doubt. He maintained that the prosecution had placed sufficient evidence before the Court to establish the offence of money laundering against the Appellant beyond reasonable doubt and the onus rightly fell on him to prove otherwise but hat did not mean that the burden of proof was transferred to the Appellant. He stated that since the Accused was standing trial for the offence of money laundering, being in possession of money or property which the he cannot satisfactorily account for and which are disproportionate to his sources of income may be proved and taken into account by the Court as corroborative evidence. He relied on s. 19 of the EFCC Act, 2004 which provides as follows:
s. 19 (5) “In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known source of income, or that he had at or about the time of the offence obtained an accretion to his pecuniary resources or property for which he cannot account, may be proved and taken into consideration by the Court as corroborating the evidence of any witness in the trial”.
The Supreme Court agreed with the submission of the Counsel to the Respondent and decided against the Appellant, Mr. Daudu. The Court found that there was proof supporting the allegation that the Appellant was in possession of money disproportionate to his known source of income which he could not satisfactorily account for. The Court recognised the offence of money laundering as a global scourge and admitted that proving the offence is a herculean task. Thus, the Money Laundering Act, 2004 seeks to remedy this difficulty with particular reference to money laundering offences. According to the Court, S. 36(5) 1999 Constitution has a proviso which allows for shifting of the burden of proof from the prosecution. The Court held that the decision of the trial Court touched on the credibility of the witnesses for the Appellant and reiterated the established principle that an Appellate Court would usually not interfere with findings of a trial court unless such findings are shown to be perverse which was not the case. In the words of the Supreme Court per Aka’ahs JSC:
“By Section 19(3) of the Money Laundering Act, if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him. The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited”
For ease of reference, S. 19 (3) Money Laundering Act is reproduced hereunder:
19(3) In any trial for an offence under this Act, the fact that an accused person is in possession of pecuniary resources or property for which he cannot satisfactorily account and which is disproportionate to his known source of income, or that he had at or about the time of the alleged offence obtained an accretion to his pecuniary resources or property for which he cannot satisfactorily account, may be proved and may be taken into consideration by the Federal High Court as corroborating any of the witness in such trial”.
The contribution of Mary Odili, JSC regarding burden of proof in her concurrent judgement is instructive. She noted the legal position on evidential burden of proof as explained by Fidelis Nwadialo, learned author of “Modern Nigerian Law of Evidence”, quoting the Author as follows:
“Incidence of evidential burden of proof. This is the burden of adducing evidence to prove or disprove a particular fact. When a party wishes the Court to believe any fact, then the burden of proof as to that fact rests on that party. The party bearing the legal burden of proof must first make out a prima facie case in his favour. This means that he has to adduce enough evidence which, if believed, may reasonably justify a finding that the facts he seeks to prove exist. But whether this burden has been discharged cannot be known until at the end of the trial and the Court actually gives a verdict in his favour. If the Court disbelieves his evidence then the burden is not discharged. However, making out such a case he has discharged the evidential burden cast on him because he has tendered the evidence basically necessary for the establishment of this case. It then becomes necessary for his opponent to call contrary evidence to challenge the case set up by the party. By the necessity to adduce this contrary evidence, the evidential burden of proof is shifted unto the opponent. Of course he is not bound to supply any evidence at all. But by so doing, he runs a great risk of the Court finding against him in denial of allegations of the of the other party…”
For legal practitioners, the presumption of innocence of an accused until proven guilty has been a sword especially against the abuse of human rights by law enforcement agents. Even among non-lawyers, the principle is quite familiar considering the number of human rights abuses in the Country. However, many have skipped the ‘fine print’ of the constitutional provision on presumption of innocence and applied the said provision as though it is absolute and admits of no deviation.
The decision of the Supreme Court in Daudu v. FRN has indeed opened a new vista on how the principle of presumption of innocence in money laundering cases should be applied. By the established principle of stare decisis which simply means cases are determined based on precedent, accused persons in money laundering cases would have to satisfy the Court that funds in their accounts are legitimate and not proceeds of crime. The case has also highlighted the important distinction between the legal burden of proof and evidential burden of proof in trial proceedings. It is believed that this case will ease the daunting task of securing convictions in money laundering cases and by extension, the fight against corruption and money laundering in the Country.
The Post was originally published here
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