⦿ CASE SUMMARY OF:
Ojukwu Nnamdi Roland v. Federal Republic of Nigeria (2018) – CA
by NSA PaulPipAr
⦿ AREA OF LAW
– Criminal Law
– Money laundering.
– Strict liability offence.
– Mens rea.
– Actus rea.
– Confessional statement.
– Beyond reasonable doubt.
Ojukwu Nnamdi Roland
Federal Republic Of Nigeria
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Ugochukwu Anthony Ogakwu, J.C.A.
* FOR THE APPELLANT
– Prof. J.N. Mbadugha.
* FOR THE RESPONDENT
– E. E. Iheanacho, Esq.
⦿ FACT (as relating to the issues)
The Appellant was charged before the Federal High Court, Lagos Division for being in possession of the sum of Two Million Nine Hundred and Seventeen Thousand, Two Hundred and Seventy Two United States Dollars (US$2,917,272.00) during his outbound clearance for travel to Addis Ababa and for failure to declare the said money to the Nigeria Customs Service as required by the Money Laundering (Prohibition) Act.
The charge against the Appellant is as follows:
“That you Ojukwu Nnamdi Rowland on or about 8th day of October, 2015 at Murtala Muhammed International Airport within the jurisdiction of the Federal High Court had in your possession cash in the sum of US$2,917,272 (Two Million, Nine Hundred and Seventeen Thousand, Two Hundred and Seventy Two United States Dollars) during your outbound clearance for travel to Addis Ababa and failed to declare the said sum of US$2,917,272 to the officers and men of the Nigerian Customs Service as required under the provisions of Section 2(3) of the Money Laundering (Prohibition) Act, 2011 (as amended by Act No. 1 of 2012) and thereby committed an offence punishable under Section 2(5) of the Money Laundering (Prohibition) Act, 2011 (as amended by Act No. 1 of 2012).”.
Three witnesses were called in proof of the Charge, while the Appellant testified in his defence and did not call any witness.
In its judgment delivered on 9th February, 2016, the lower Court convicted the Appellant as charged. The judgment of the lower Court is at pages 235-269 of the Records. The Appellant, dissatisfied with the judgment appealed against the same.
1. Was the learned trial Judge right in holding that the prosecution proved its case beyond reasonable doubt and thereby convicted the Appellant as charged?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Let me iterate that the prosecution relied on the confessional statements of the Appellant, Exhibits P2 and P3 as one of the methods of proving the charge beyond reasonable doubt. It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by a defendant is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. The free and voluntary confessional statement of a defendant alone is enough to sustain the conviction of a defendant where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth.
ii. Now, the extra-judicial statements were tendered and admitted in evidence without any issue being raised as to their voluntariness. It seems to be rudimentary law that when a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntarily and it is the truth of his role in the crime. The appropriate time to object to a statement made by a defendant on the ground of inadmissibility is at the time when the prosecutor seeks to tender the statement in evidence and not at the appellate Court.
iii. The burden on the prosecution is to prove the offence as charged. The charge before the lower Court did not make the mental element of the Appellant part of the charge neither did the provisions of the statute which I have earlier reproduced make the mental element an ingredient of the offence. It is pertinent to underscore that the Appellant in setting out the ingredients of the offence in his brief did not include the mens rea as an ingredient of the offence. He however argued that after the prosecution had proved the ingredients of the offence it should go further and prove the mens rea. NO. The burden on the prosecution is to prove the ingredients of the offence as charged. Where this is done, then the offence charged has been proved beyond reasonable doubt. There was therefore no burden on the prosecution to prove the mental element which was not part of the charge.
iv. From the indubitable facts disclosed on the cold printed records borne out by Exhibits P2 and P3 which are supported by the evidence of PW1 and PW3 and the documentary exhibits tendered in evidence, there is no doubt whatsoever that the Appellant had in his possession money in excess of US$10,000.00 which he intended to travel with and transport out of Nigeria and which he failed to declare to the Nigerian Customs as required by law. The evidence also establishes beyond reasonable doubt that the Appellant was arrested at the boarding gate as he was waiting to board his flight to leave Nigeria. Inexorably, the lower Court was right in its decision that the ingredients of the charge against the Appellant was proved beyond reasonable doubt by the voluntary, direct, cogent, positive, compelling and duly proved confessional statements of the Appellant. The legal position remains unchanged that the confessional statements of the Appellant, the veracity of which was authenticated by the testimony of the PW1 and PW3 and the other documentary exhibits, was sufficient to warrant his conviction for the offence charged.
– Section 12 of the Foreign Exchange (Monitoring and Miscellaneous Provisions Act).
– Section 2(3) of the Money Laundering (Prohibition) Act, 2011 and Section 2(5) of the said Act.
– Section 29(3) Evidence Act 2011.
– Section 83(2) Evidence Act.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
In deciding the ingredients of the offence, this Court, per Garba, JCA at page 18 of the judgment held as follows: “By the community effect of the provisions of Section 2(3) and (5) of MLPA, for an offence to be committed, the following elements must be shown to exist: (a) Transportation of cash or negotiable instruments in excess of USS10,000 or its equivalent by individuals in or out of the Country; and (b) That a person or individual made false declaration or fails to declare the possession of cash or negotiable instruments in excess of USS10,000 for the purpose of transporting same in or out of the Country, to the Nigerian Customs Service at the point of entry into or exit out of the Country. As required by law, these elements have to be established or proved together by the prosecution with the admissible, credible and sufficient evidence to meet the standard of proof beyond doubt as espoused above.”
WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28, contradiction was given the following meaning: “The word “contradiction” is a simple English word. It derives from two Latin words, “contra” and “deco-ere-dixi-dictum” meaning “to say the opposite” hence “contradictum”; A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short, or contains a little more than what another piece of evidence says or contains some minor difference in details.
EGBOGHONOME vs. THE STATE (1993) 7 NWLR (PT 306) 383 and IKEMSON vs. THE STATE (1989) 3 NLWR (110) 455 among others, has laid down the principle of law and warned that: “inconsistency rule in evidence of witnesses does not apply to confessional statements of an accused person as it would be an escape route to be freely taken by him to escape justice by deliberately changing his story at the trial in order to walk away a freeman and open the floodgate of retraction of all statements made by accused persons to police officers. That would make a mockery of criminal trials and it is not in the interest of society to allow a man to walk out of Court a freeman simply because he changed his story of committing the offence at the trial.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
Even though the Appellant retracted the confessional statement at the trial, it is rudimentary law that the denial by a defendant that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. – Ogakwu, J.C.A. Roland v. FRN (2018)
Howbeit, the legal position is that a Court cannot act on the confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. – Ogakwu, J.C.A. Roland v. FRN (2018)
The test which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts stated in the confession are true as far as can be tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with the other facts ascertained and proved. – Ogakwu, J.C.A. Roland v. FRN (2018)
The Appellant further argued that even if no objection was raised, the prosecution still had to prove that the statement was made voluntarily. It seems to me that in applying to tender an extra-judicial statement in evidence, the prosecution, by the application, avows that all the requirements of the law for its admissibility in evidence have been met. The duty on the prosecution to prove that all the requirements have in fact been so met will only arise if an objection is raised as to its admissibility; where no objection is raised, there is no obligation on the prosecution to prove that the statement was made voluntarily. – Ogakwu, J.C.A. Roland v. FRN (2018)
It is important to underscore that the material consideration is whether the decision was correct and not whether the reason given for the decision was correct. It would therefore be a moot point if the reason that the offence is a strict liability offence is wrong, if in fact the decision that the offence was proved beyond reasonable doubt is the correct decision. – Ogakwu, J.C.A. Roland v. FRN (2018)
It is exoteric that in criminal trials, the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the defendant, then the case is proved beyond reasonable doubt. – Ogakwu, J.C.A. Roland v. FRN (2018)
The learned counsel on both sides of the divide have rightly submitted that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. I iterate that at nisi prius it was held that the prosecution discharged the burden on it, consequent upon which the Appellant was convicted as charged. – Ogakwu, J.C.A. Roland v. FRN (2018)
It is trite law that in order to discharge the burden of proof cast upon it by law, which is to prove the offence charged beyond reasonable doubt, the Prosecution has three ways or methods of proving the guilt of an accused person. These are: 1. By reliance on a confessional statement of an accused person voluntarily made; 2. By circumstantial evidence; and 3. By the evidence of eye witnesses. – Ogakwu, J.C.A. Roland v. FRN (2018)
It is settled law that the ingredients of an offence are embedded in the words employed by the statute creating the offence and it will not be proper to import words which the lawmaker did not use in order to ascertain the ingredients of the offence. – Ogakwu, J.C.A. Roland v. FRN (2018)
It seems to be rudimentary law that when a confessional statement is admitted without objection from the maker or his counsel, the law implies that the maker of the statement agrees with everything in the statement. It also means that the maker made the statement voluntarily and it is the truth of his role in the crime. The appropriate time to object to a statement made by a defendant on the ground of inadmissibility is at the time when the prosecutor seeks to tender the statement in evidence and not at the appellate Court. – Ogakwu, J.C.A. Roland v. FRN (2018)
As alluring as the exposition by the Appellant’s counsel on strict liability offence is and the invitation for the Court to develop the Nigerian Law on strict liability offence, it is in the diacritical circumstances of this matter an academic exercise. It is a well beaten and trite principle of law that the Court does not embark on academic discourse, the ivory towers and law journals are better suited for such an academic venture. – Ogakwu, J.C.A. Roland v. FRN (2018)
Once again an appellate Court is concerned with whether the decision appealed against is the correct decision and not whether the reason for the decision is correct. At the risk of prolixity, even where the reason of the lower Court that the offence is a strict liability offence is not correct, which for reason that it is academic I have not delved into; the decision that the prosecution proved the ingredients of the offence charged beyond reasonable doubt is the correct decision. – Ogakwu, J.C.A. Roland v. FRN (2018)