➥ CASE SUMMARY OF:
Valentine Ayika v Republic of Liberia (2012)
by “PipAr” B.C. Chima
ECOWAS Court – ECW/CCJ/JUD/09/12
➥ JUDGEMENT DELIVERED ON:
Friday 8th June 2012
➥ AREA(S) OF LAW
Non-declaration of money at the airport.
➥ NOTABLE DICTA
⦿ A PARTY IS FREE TO PROVE HIS CASE BY ANY MEANS HE DEEMS APPROPRIATE
“10. Defendant contended that the fact that the plaintiff did not’ testify himself or call witnesses to testify on his behalf amounts to a waiver of his claim as there is no substantiating evidence upon which judgment can be granted in his favour. Defendant urged the Court to dismiss the plaintiff’s claim as it is unverified and unsubstantiated. With respect, this position canvassed by the defendant is not tenable at law. A plaintiff can prove his case either by relying on documents or by providing oral evidence or he could use a combination of both. A party is free to prove his case by any means he deems appropriate.”
⦿ WHERE FACTS ARE ADMITTED OR NOT TRAVERSED, NO NEED FOR EVIDENCE
“11. At law where facts are admitted or not traversed in the pleadings, a party is not obliged to lead any further evidence. The documents on which the plaintiff relied on in this proceeding were all admitted by the defendant who also relied on all those documents as well as her own. In such an instance, it is not necessary for the plaintiff to provide oral evidence to prove these facts as they are admitted by the defendant. Thus, defendant’s contention that plaintiff did not provide evidence to substantiate his claims and should be deemed to have waived them is not acceptable in law and so same is respectfully rejected by the Court.”
⦿ IN MATTERS OF CONFISCATION OF MONEY, INVESTIGATIONS SHOULD BE EXPEDITED
“44. The Court must place it on record that member states have a duty to expedite investigations when they confiscate money based on reasonable suspicion that strangers entering their territory are carrying money for criminal purposes, or the money is the object of money laundering or otherwise illegally obtained. The investigations should be conducted within a reasonable time in the light of the facts and circumstances of the case in order not to place such persons who may eventually be found innocent in undue hardship. Given the facts and circumstances of this case, the time lapse of over four years between the confiscation of the money and conclusion of investigations was unduly long.”
➥ LEAD JUDGEMENT DELIVERED BY:
Hon. Justice Hansine N. Donli
Hon. Justice Benfeito M. Ramos
H0n. Justice Anthony A. Benin
⦿ FOR THE PLAINTIFF
C. 0. Ejezie Esq.
⦿ FOR THE RESPONDENT
Counsellor M. Williams Wright, Solicitor-General, Republic of Liberia.
➥ CASE HISTORY
The plaintiff herein is a national of the Federal Republic of Nigeria. The defendant is a member state of the Economic Community of West African States (ECOWAS). The brief facts of this case are as follows. On or about 9th September 2006, the plaintiff arrived in Monrovia, the capital city of the Republic of Liberia, aboard a flight from· the Federal Republic of Nigeria. He had on his person the sum of. US$508,200.00 which was seized by the authorities of defendant because the plaintiff had not declared it as required by the laws of the country.
Subsequently, by an order dated 30th November 2006, the Circuit Court in Liberia formally confiscated the money. But the court’s record is clear that the order was sought for and granted without reference to the plaintiff herein. The proceedings before this court further shows that the matter did not end with the court order. It is clear investigations continued into the source of the money, the purpose for which it was brought into the country as well as the ownership thereof. The receipt from the Central Bank of Liberia dated 11th September 2006 confirms this. These investigations continued from 2006 through 2009 as confirmed by correspondence dated 10th December 2008 (Annexure B) 27th December 2008 (Annexure C) both of which form part of plaintiff’s pleadings in this case. By a letter dated 23rd January 2009, the defendant’s Minister of Justice and Attorney-General wrote a letter to the Central Bank of Liberia confirming that investigations into the confiscated amount had been concluded and it was in 2 favour of the plaintiff so the bank should release the money to him, less the penalty for non declaration of the money.
The defendant said that this letter was withdrawn the very next day when it was discovered that it had been written on misrepresented facts and that the Central Bank of Liberia was directed to continue to hold the money pending further investigations. In the meantime the record discloses that an action is pending before the Supreme Court of Liberia in respect of the same subject matter.
The defendant in opposing the application stated that when the applicant arrived at the Roberts International Airport on the 9th of September 2006, he submitted to Immigration and Customs, Bureau of Immigration and Naturalization, Ministry of Justice and the Ministry of Finance but at every point he declared that he was bringing nothing of value into the country that warranted a declaration as per the requirements of both the Immigration and Naturalization Law and the Revenue Code of Liberia Act of 2000. Defendant averred that it was when plaintiff was leaving the airport that security personnel were alerted that the applicant had falsely stated that he was carrying nothing that warranted a declaration. Defendant continued that when plaintiff was accosted and searched, it was found that he had US$508,200.00 strapped to his body. The money was subsequently seized and sent to the Central Bank for verification whilst investigation continued as to why plaintiff failed to declare to the Central Bank personnel as well as the Immigration and Custom authorities at the airport.
➥ ISSUE(S) & RESOLUTION
I. Whether the plaintiff is entitled to recover his USD508,200.00?
a. Mode of transportation and declaration of the currency:
“21. A notarized Article of Incorporation is prima facie evidence of the existence of a business entity. A public document is presumed to be authentic until the contrary is established. Further, the Article of Incorporation was issued by defendant’s agents and she did not allege that this document was fraudulently procured. A Memorandum of Understanding between plaintiff’s registered business and other companies offers further proof that plaintiff indeed had business interests in Liberia. 22. The fact that the money was strapped to plaintiff’s body alone does not support the assertion by defendant that plaintiff had no legitimate business in Liberia. Although the method employed by the plaintiff in carrying his cash seems a little odd or even unorthodox, that in itself does not amount to any crime. It gives rise to reasonable suspicion of crime, which would be established or not after investigations, especially when coupled with the fact that the plaintiff did not declare the currency at the country of departure. A member state will be justified in carrying out investigations into the conduct of any person on its territory when it has reasonable cause, as in this case, to believe that there is crime committed by that person or to prevent that person from committing crime on its territory. Moreover, non-declaration of the money before leaving the airport might also raise suspicion that the plaintiff might have some impure motive for bringing in the money and that might give rise to legal consequences under Liberian laws and must be dealt with in the light of the laws prevailing at the material time.”
“It is pertinent to note that in the Status Report issued by defendant’s agents and which forms part of her pleadings they admitted that the Central Bank did not have officials at the Roberts International Airport when the plaintiff arrived. One Mrs. Davis, the Deputy Governor of the Central Bank of Liberia whilst explaining the absence of the Bank’s officials stated that the Bank had withdrawn its employees from the airport because other agencies at the airport, including customs, said that the Bank was carrying out their functions. However, it is not in dispute that the relevant laws of the defendant enjoin arriving passengers to declare the currency on them. To satisfy the law the passenger must look out for officials of the state, however designated, to declare the currency. It is not only bank officials who can perform such functions. Since the plaintiff asserts the affirmative of the issue, he assumes the burden of producing evidence that he did declare the amount on him. All the evidence points to the conclusion that he did not declare it and he could not take solace in the fact that there was no bank official there at the time. If the law says there must be a declaration, it is the duty of the passenger to comply with it however cumbersome the process might appear to be. The plaintiff is also not saying that only bank officials were authorised under Liberia law to receive the declaration. Having regards to the mode the plaintiff carried the money it is more probable than not that he did not intend to declare that money. The court finds the plaintiff did not declare the mone y at the airport to any official of the defendant.”
“Defendant called four witnesses, Bala Camara, Alfred Korleh, Johnton Robertson Wolo Junior and Susanna Steve Blackie to give evidence on her behalf. The substance of the evidence of all four witnesses is that plaintiff arrived with his money strapped to his body. This evidence was uncontroverted under cross examination. Plaintiff failed to produce any evidence to dispute the claim that the money was strapped to his body. The Court finds that the plaintiff strapped the money to his body.”
b. Legality of the confiscation order:
“27. The defendant has placed nothing on record to show that plaintiff was served with any notice before the confiscation proceedings were commenced. The plaintiff also averred that he was deported to Nigeria before the said confiscation proceedings and the defendant did not deny this averment. All that the defendant said is that there were legal remedies available to the plaintiff but he chose not to pursue them. A fundamental principle of law is the “audi alteram partem” rule which literally means “hear the other side”. This principle requires that both parties in any judicial proceedings ought to be heard before their rights are determined. The undisputed evidence before this Court indicates that the plaintiff was not served with a notice of the hearing of the confiscation proceedings. Indeed, the plaintiff had already been deported out of the country. It is therefore conclusive that the plaintiff was not heard nor given the chance to be heard in the confiscation proceedings. This offends the letter and spirit of the cardinal principle of fair hearing in judicial proceedings. The defendant’s defence in this regard is respectfully not acceptable and is therefore rejected accordingly. Be that as it may, the proceedings before the court did not finally determine the · rights of the plaint ff. They were only provisional so as to enable investigations to be carried out. Thus no prejudice resulted from it to the detriment of the plaintiff. ”
c. Effect of the investigative reports by the defendant’s agents:
“33. … Defendant’s officials conducting the investigation into the charge of money laundering against the plaintiff at this stage acknowledged that they had critically scrutinized the documents submitted to them by the plaintiff which indicated among other things the source of his funds. Plaintiff had indicated that the funds were sourced from his business accounts domiciled at the Spring Bank, Nigeria . The investigations did not find this to be false.”
“38. The reports of the various investigative teams of the defendant clearly exonerated the plaintiff of any crime. In particular, the extracts of the reports clearly established that the plaintiff is a businessman with legitimate business interests in both Liberia and Nigeria . Further, the extracts of the reports made it crystal clear that the plaintiff did not carry illicit drugs into defendant’s territorial boundary. It also stated explicitly that the plaintiff was not guilty of the money laundering charge preferred against him. These are conclusions from the investigation reports of defendant’s own agents and officials. These are documents which speak for themselves and their contents admitted without further proof. 39. It was based on the findings of the investigative teams that exonerated the plaintiff of any crime that the Minister of Justice and Attorney General, the highest legal officer of the defendant wrote to the Executive Governor of the Central Bank requesting the release of plaintiff’s funds subject to the penalty for nondeclaration. This is based on the fact that the Minister of Justice and Attorney General knew that having been cleared of the criminal charges preferred against him, the plaintiff was entitled to recover his money as there was no legal justification for the defendant to hold on to same.”
“41. However, the defendant seeks to find a legal basis for withholding plaintiff’s money by relying on the letter written to the Executive Governor of the Central Bank withdrawing the request for the release of plaintiff’s funds. The said letter stated that plaintiff’s funds should not be released pending further investigations into the matter. Defendant argued that the letter asking for the release of plaintiff’s funds was written based on misrepresentations made by one of the lawyers of the plaintiff in Liberia. However, defendant failed to name which lawyer made those misrepresentations, neither did she tender the said statement as evidence in this proceeding. The Court cannot accept oral statements made by the defendant without further proof as to its veracity.”
“42. Further, the letter in question was written on January 24, 2009 whilst the present action was instituted on April 8, 2011. Thus, this action was commenced over two clear years from the date which the defendant indicated that she wanted to further investigate the issue but she placed nothing on record to show the Court that indeed some further investigations have been conducted into the issue. And even if they did conduct further investigations, there is no evidence anything adverse to the plaintiff was found. The court will thus conclude that no crime was found against the plaintiff from the day of his arrest to date.”
d. That the Plaintiff is a criminal as alleged by the AG of Nigeria:
“47. These were damning allegations about the plaintiff and heightened defendant’s belief that he is a criminal and sought to perpetrate crime within her jurisdiction. However, these allegations were not proved or substantiated. There is no document on record which shows that the plaintiff had been on the list of wanted persons of the US DEA for drug trafficking. Similarly, there is no evidence before the Court to prove that plaintiff had been convicted for drug trafficking or money laundering anywhere in the world. It is necessary to take cognisance of the fact that the Attorney General and Minister of Justice of the Federal Republic of Nigeria stated that there is a prima facie case of money laundering. A prima facie case calls for investigation and prosecution if necessary. It is not conclusive. Since defendant’s investigations exonerated the plaintiff of both crimes (drug trafficking and money laundering) and there was no evidence supporting these allegations, they remained nothing more than hearsay and bore no evidential weight in this case. The totality of all these raises strong suspicion of crime or criminal conduct against the plaintiff. But in law a multitude of suspicions do not ripen into guilt.”
“48. The Court, sitting in public at Abuja, decides that the plaintiff has established his claim and therefore enters judgment for him. The defendant is hereby ordered to return the amount of $508,200 to the plaintiff less 25% of the said amount as per the country’s laws. The defendant is also ordered to restore the plaintiff’s passport to him. The claim for 21% interest is not allowed for lack of justification.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)