Gabriel Daudu V. Federal Repulic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

KUMAI BAYANG AKA’AHS, J.S.C.

On 30 October, 2014 the Economic and Financial Crimes Commission (EFCC) preferred a 208 counts charge against the accused/appellant before the Federal High Court, Lokoja in Charge No. FHC/LKJ4C/2011 presided over by I. E. Ekwo J. He pleaded not guilty to each of the counts. Hon. Albert Soje (then Majority Leader) of the Kogi State House of Assembly was also arraigned with the accused/appellant on a two count charge but at the end of the trial he was acquitted and discharged.

The appellant was however convicted on 75 counts while he was acquitted and discharged on the remaining 133 counts. The appellant appealed against this decision to the Court of Appeal, Abuja in his Notice of Appeal dated 17 May, 2016 containing 11 grounds of appeal. A preliminary objection attacking grounds 4, 5, 6, 7, 8, 9 and 10 was raised and argued in the respondent’s brief which was filed on 14 November, 2016. The lower Court upheld the objection and struck out grounds 4, 5, 8, 9 and 10 of the Notice of Appeal as well as issues 1, 2 and 4. The appeal was dismissed and this prompted the further

appeal to this Court. 12 grounds accompanied the Notice of Appeal filed on 14 March, 2017 from which Mr. J. B. Daudu SAN formulated the following five issues for determination: –

1. Whether the Court of Appeal was right or correct in law to have in one breath refused/struck out the respondents preliminary objection and immediately thereafter to consider the same objection as issues being raised by the same Court suo motu before striking out the appellant’s issues 3, 4, 6 and 7 which were predicated on grounds 4, 5, 8, 9 and 10 of the Notice of Appeal (Issue No 1.) (Ground 2 of the Notice of Appeal).
2. Whether on the merit the Court below was correct in eliminating issues 3, 4, and 7 from the case of the appellant( Issue No 2) (Grounds 3, 4 and 5 of the Notice of Appeal).
3. Whether the Court of Appeal was 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 (Issue No 3) (Grounds 6 and 7 of the Notice of appeal).
4. 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 (Issue No 4)(Grounds 1 and 8 of the Notice of Appeal).

5. Whether the Court below was correct in law in affirming the decision of the trial Federal High Court that all the uncertified documents and Bank generated documents are admissible in evidence and if answered in the negative what is the effect of their expurgation from the case (Issue No 5)(Grounds 9, 10, 11 and 12).

The respondent who was represented by Wahab Shittu Esq. formulated two issues as follows:-

1. Whether there are provable fundamental jurisdictional issues vitiating the trial proceedings of the appellant
2. Whether the Prosecution has established the case against the appellant beyond reasonable doubt

Learned Senior counsel filed an appellant’s reply brief. Learned senior counsel argued issues 1 and 2 together. He also took issues 3 and 4 together before considering issue 5 separately.

On issues 1 and 2 learned senior counsel submitted that the Court of Appeal erred in law when in one breath it dismissed the preliminary objection of the respondent to the appellant’s

grounds of appeal and in another breadth proceeded to deal with the same objection suo motu and then struck out grounds associated with issues 3, 5, 6 and 7.

Learned counsel for the respondent argued that the Court of Appeal was right to have treated and dealt with the Preliminary objection raised by the respondent separately from the issues raised in the appeal.

The preliminary objection was struck out because it was not the appropriate mode to complain about some of the grounds of appeal. The lower Court stated its reasons for striking out the preliminary objection. It stated clearly that even if the objections were to succeed, hearing of the appeal on the remaining grounds would not be disturbed and the procedure which should have been adopted is to file a motion on notice to dispose of the matter before hearing the appeal, but not to come by way of preliminary objection. This reasoning is well grounded on the dictum of this Court per Rhodes-Vivour JSC in Adejumo v. Olawaiye (2014) 12 NWLR 9 (pt 142) 252 at p.279 where he said:-

“A preliminary objection should only be filed against the hearing of an appeal and not against one or more grounds of appeal which are not capable of disturbing the hearing of the appeal

…… Where a preliminary objection would not be appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining of a few grounds or defects would suffice”.

I consider the merits of this appeal should be considered under issue 3 and 4 of the appellant’s brief which is adequately covered under issue 2 in the respondents brief. Learned Senior counsel for the appellant in attacking the findings made by the learned trial judge contended that the onus fell on the appellant’s shoulders to establish the lawfulness or legality of each and every lodgement he made into his accounts thus reversing the time honoured rule that the burden of proof in criminal matters lies on the prosecution. He said the Court of Appeal got it wrong and fell into the same error as did the Federal High Court by shifting the onus of proof onto the appellant and failed to ascertain whether the ingredients of the offence of Money Laundering was established beyond reasonable doubt by the prosecution. He argued that the Court below in seeking to review the prosecution’s evidence from pages 1828-1838 and that of the defence could not link any of the