Agaba v. FRN (2022)

LAWGLOBAL HUB Lead Judgment Report – SUPREME COURT

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Lead Judgment)

Sometimes in 2015, the EFCC carried out an investigation against the Appellant on a perpetrated fraud in Nigerian Maritime Administration & Safety Agency (NIMASA), which revealed that the Appellant, who was then the Executive Director of NIMASA with the former Director General was involved.

Consequently, the Appellant with five others was arraigned before the Federal High Court, Lagos, on a 22-count charge ranging from conspiracy to commit money laundering, money laundering, inducing the Federal Government of Nigeria to approve and deliver to Nigerian Maritime Administration & Safety Agency (NIMASA) the sum of N795,200,000.00 under false pretence. The prosecution called 12 witnesses and tendered Exhibits P1-P77. Upon the close of the prosecution’s case, the Appellant filed a no case submission, which was overruled.

This culminated into this appeal and the Appellant seeks for determination:
1. Whether the Court below having distilled the elements of the offences established against the Appellant in counts 1-20 at the trial Court, to constitute the offence of conversion, a variant of the offence of stealing, the Federal High Court has the requisite jurisdiction to hear and determine the said offence of conversion and/or stealing?

2. Whether the decision of the Court below, which ordered the Appellant to enter his defence to the allegations contained in counts 1-20 in the charge at the trial Court, for the offences of conspiracy to commit money laundering and money laundering, was not given in error, in view of the prosecution’s failure to establish any of the elements of the offence of money laundering at the trial?

3. Whether the elements of the predicate offence of conversion distilled by the Court below in its judgment, can be substituted with and/or construed as having established the elements of the main offence of money laundering for which the Appellant was charged in counts 1-20 at the trial Court?

The Respondent contrariwise formulated a lone issue for determination of this appeal:
Whether the lower Court was wrong in dismissing the appeal of the Appellant challenging the ruling of the lower Court dismissing his no case submission.

ISSUE FOR DETERMINATION:
The Respondent’s issue, being more apt and encompassing shall be adopted in the consideration of this appeal.
Whether the lower Court was wrong in dismissing the appeal of the Appellant challenging the ruling of the lower Court dismissing his no case submission.

The learned Counsel to the Appellant submitted that the decision of the Court below to use the elements of the offence of conversion as against the money laundering for which the Appellant was charged and tried, to hold that a prima facie case was established against the Appellant sufficient to warrant opening his defence to the allegations in counts 1-20, without construing the nature of the evidence adduced by the prosecution and its legal effect on the jurisdiction of the trial Court, resulted in gross miscarriage of justice against the Appellant.

Hence, that the lower Court ought to have held that the trial Federal High Court did not have the jurisdiction to try the Appellant for the predicate offence of conversion/ stealing. He referred to F.R.N v. YAHAYA (2015) LPELR-24269 (CA). Further in his issue two, the Appellant’s learned Counsel submitted that it was the misconstruction by the lower Court of the offence for which the Appellant was charged that led it to hold that there was evidence that linked the Appellant to the offence for which he was charged to warrant his defence.

He finalized in his issue three that the decision of the lower Court to substitute the elements of the offence of conversion with money laundering to hold that a prima facie case has been made out against the Appellant constituted a grave error which this Honourable Court has the power to set aside. He cited in support CHIKERE & ORS v. OKEGBE & ORS (2000) LPELR-847(SC). He urged this issue to be resolved in favour of the Appellant and to allow the appeal.
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The Respondent’s learned Counsel on the other hand submitted that the Appellant was charged with conspiracy to convert and conversion of proceeds of unlawful activity contrary to the provisions of the Money Laundering (Prohibition) (Amendment) Act, 2012; and considering the evidence of PW1-PW12 and exhibits P1-P77, the Respondent has made out a prima facie case against the Appellant to necessitate him to enter his defence. Similarly, that apart from proving conspiracy against the Appellant, the Respondent has made out a prima facie case of conversion against the Appellant in counts 2, 4, 6, 8, 10, 12, 14, 16, 18 and 20. Contending further, the learned Counsel to the Respondent settled that by the case of KALU v. FRN (2014) 1 NWLR (PT. 1389) AT 533 and Section 15 (1) and (2) of the Money Laundering (Prohibition) (Amendment) Act, 2012, the ingredients of the offences charged or alleged against the Appellant have been proved.

He submitted that there is prima facie admission of the Appellant that the various sums of money allegedly converted were either handed over to the Appellant in US dollars or personally converted to his own use or to the use of his cronies. He settled that the predicate offence that is referred to in Section 15 (1) of the Money Laundering (Prohibition) (Amendment) Act, 2012, like any other unlawful act, which in the instant case includes the offences of criminal conversion or stealing prescribed under Sections 383-390 of the Criminal Code Act. He therefore urged this Court to dismiss this appeal.

RESOLUTION OF ISSUE:
The grouse of the Appellant’s learned Counsel at Paragraph 4.5 of pages 11-12 of his Brief is that since the Respondent failed to further prove money laundering committed by the Appellant, as against the offence of conversion or stealing, which was the predicate offence, then the trial Federal High Court lacked the jurisdiction to determine an allegation anchored on the offence of conversion/ stealing, which was an offence under the Criminal Laws of Lagos State.

The Respondent has refuted the Appellant’s argument by stating that the “predicate offences as regards the funds laundered are the offences of criminal conversion or stealing prescribed under Sections 383-390 of the Criminal Code Act.”

Contained at pages 2-6 of the record are the charges against the Appellant at the trial Federal High Court. A common denominator or shared trait in the charges is that the Appellant with others was alleged with the conversion/ stealing of various sums of money when the Appellant was then the Executive Director of NIMASA. For the sake of clarity and emphasis, may I cull count two of the said charges:
Count two:

That you… Captain Ezekiel Bala Agaba. .. between the 23rd of December, 2013, and 13th of March, 2014, in Lagos, within the jurisdiction of this Court did commit an offence to wit:

conversion of the sum of N437,726,666.60 (Four Hundred and Thirty Seven Million, Seven Hundred and Twenty Six Thousand, Six Hundred and Sixty Six Naira, Sixty Six Kobo), property of the Nigerian Maritime Administration and Safety Agency, and thereby committed and offence contrary to Section 15(1) of the Money Laundering (Prohibition) (Amendment) Act, 2012, and punishable under Section 15(3) of the same Act.

​It is clear, explicit and ex facie that the Appellant knew that the particulars of stealing and/or conversion contained in the charges against him was spelt out contrary to Section 15 of the Money Laundering (Prohibition) (Amendment) Act, 2012. In other words, the particulars of the offence allegedly committed under Section 15(1) of the Money Laundering (Prohibition) (Amendment) Act, 2012, and punishable under Section 15(3) of the same Act, are well known to the Appellant. Section 15(1-3) of the Money Laundering (Prohibition) (Amendment) Act, 2012 provides:

(1) Money Laundering is prohibited in Nigeria.
(2) Any person or body corporate, in or outside Nigeria, who directly or indirectly-
(a) conceals or disguises the origin of;

(b) converts or transfers;
(c) removes from the jurisdiction; or
(d) acquires, uses, retains or takes possession or control of; any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.

(3) A person who contravenes the provisions of Subsection (2) of this Section is liable on conviction to a term of not less than 7 years but not more than 14 years’ imprisonment.