Whether the EFCC Can Act on Intelligence, Communications, and Petitions from outside Nigeria

CASE TITLE: Ishola v. FRN (2023) LPELR-60490(CA)

JUDGMENT DATE: 23RD UNE, 2023

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: MOHAMMED BABA IDRIS J. C. A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the offence of money laundering.

FACTS:

This is an appeal against the judgment of the Federal High Court sitting at Uyo in Charge No. FHC/UY/CS/74C/2019. The Appellant was arraigned on a 45-count charge bordering on the offences of money laundering and cybercrimes.

Upon arraignment, the Appellant pleaded not guilty. The Respondent who was the Prosecution opened their case, called 4 (four) witnesses, and tendered several exhibits which were admitted in evidence and marked as Exhibits P1 – P35 in proof of its case.

The crux of the Prosecution’s case is that they received intelligence from Interpol concerning the activities of a syndicate of fraudsters that specialize in business email compromise (BEC fraud) and CEO (Chief Executive Officer) fraud. It was discovered during meetings held in France with the Danish, Norwegian, Austrian and Swiss police that in specific cases especially within Norway, there was a loss of over six hundred thousand euros and also attempts of BEC fraud within all member states present at the meeting. An email address was shared at the meeting and efforts had to be made to ascertain the location of the email address as it was discovered that the user was using Virtual Private Network (VPN) to disguise the location. A bait was set and the Appellant fell for it which gave the Norwegian police the opportunity to remotely search through the content of the laptop and during this search, they found several things belonging to the Appellant and his family.

The Respondent later located him (the Appellant) in Nigeria and arrested him and he was thereafter taken into custody and subsequently arraigned before the trial Court.

At the hearing, the Appellant testified in his own defence and tendered only one document. Judgment in the case was delivered in favour of the Respondent and the Appellant was convicted and sentenced to a term of 7 (seven) years imprisonment. The sums of money found in his account and the two properties shown to be proceeds of crime were to be forfeited and the proceeds therefrom are to be used in restitution for the Norwegian victims.

Dissatisfied with the said judgment of the Court below, the Appellant filed this appeal.

ISSUES:

The appeal was determined on:

1. Whether the learned trial judge was right when he held that it is the duty of the Appellant to call an expert witness to lead credible evidence to contradict the polygraph expert witness of the prosecution (PW3) thereby acted upon the evidence of PW3 as unchallenged.

2. Whether the learned trial judge was right when he held that the Prosecution through their witnesses proved that the Appellant made his statement voluntarily without inducement, threat or coercion and went ahead to admit it as Exhibit P34 in spite of the evidence adduced during trial within trial which established that the extra-judicial confessional statement was made by the Defendant six (6) months after arraignment and in furtherance of a plea bargain agreement (Exhibit D1) was not voluntarily made by the Appellant thereby occasioning a grave miscarriage of justice.

3. Whether the learned trial judge was right when he went ahead to disqualify a competent witness for the Appellant on the rationale or premise that he once acted in a capacity of legal practitioner to the Appellant which amounts to denial of the right of fair hearing enshrined under the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended and consequently renders the trial within trial proceedings null and void and liable to be set aside ex debito nullito justicae to the Defendant thereby occasioning a miscarriage of justice.

4. Whether the failure of the learned trial judge to deliver judgment well over 90 days after the adoption of final addresses without any justiciable reason occasioned a miscarriage of justice against the Appellant.

5. Whether the learned trial judge was right when he misapplied the decision of the Court of Appeal in Brilla Energy Ltd v FRN (2018) LPELR – 43926 (CA) by the wrongful admission of inadmissible computer-generated evidence – Exhibit P1, P2, P9, P12, P13, P14, P15, P16 – P33 without compliance with the mandatory statutory provisions of Section 84(1)(2) and (4) of the Evidence Act 2011 and relying on same to convict the Appellant.

6. Whether the Prosecution proved the case against the Appellant beyond a reasonable doubt.

DECISION/HELD:

The appeal was dismissed.

RATIOS:

• EVIDENCE – EXPERT OPINION/EVIDENCE – Position of the law with regard to expert opinion/evidence
• EVIDENCE – EXPERT OPINION/EVIDENCE – Discretion of Court as regards reliance on expert evidence
• EVIDENCE – CONFESSIONAL STATEMENT – Whether a confessional statement can be made at any time before judgment
• EVIDENCE – TRIAL WITHIN TRIAL – Principles governing a trial within a trial
• EVIDENCE – TRIAL WITHIN TRIAL – Whether a legal practitioner for an accused person is a qualified and competent witness to testify on the voluntariness of the confessional statement of the accused person in a trial within a trial
• EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS – Provisions of Section 84 of the Evidence Act, 2011 as regards the conditions to be fulfilled before a computer-generated document can be admitted in evidence
• GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION – Whether the EFCC can act on intelligence, communications, and petitions from other countries outside Nigeria on issues bordering on financial crimes
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF MONEY LAUNDERING – Position of the law as regards proving the offence of money laundering
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF MONEY LAUNDERING – Whether the offence of money laundering must be accompanied by a predicate offence
• GOVERNMENT AGENCY – ECONOMIC AND FINANCIAL CRIMES COMMISSION – Powers of the Economic and Financial Crimes Commission to investigate allegations of money laundering
• EVIDENCE – HEARSAY EVIDENCE – Whether evidence garnered from foreign law enforcement agencies bordering on offences of money laundering and cybercrimes can be regarded as hearsay evidence