Read previous post on case here.
Arguments were taken today in respect of the no case submission filed by Senior Advocate of Nigeria, Dele Mohammed Belgore and Prof. Abubakar Suleman before Justice Rilwan Aikawa sitting at the Lagos Division of the Federal High Court.
In arguments that spanned over three hours, the defendants contended that essential elements or ingredients of the offences charged have not been proved while the prosecution contended that a prima facie case has been made out against the defendants in respect of the offences and they should be asked to explain their actions.
Counsel to Mr. Belgore, E.O. Sofunde SAN in his submissions argued that a no case submission would be upheld by the court where there is no evidence to support an essential ingredient of the offence alleged or if the evidence has been so discredited as to make it unreliable. He relied on the case of AJIDAGBA V. IGP (1958) VOL 1 NSCC PG. 20 and submitted that no prima facie case has been made out by the prosecution against Mr. Belgore. He argued that failure by the prosecution to prove just one essential ingredient of the offence is enough to sustain a no case submission and relied on the case of ALABI V. THE STATE (1993) 7 NWLR (PART 307) 511.
Mr. Sofunde further argued that most of the documentary evidence relied upon by the prosecution amount to documentary hearsay and he relied heavily on the decision of the Court of Appeal delivered in the case of FRN V. BUKOLA SARAKI on the 12th of December 2017 wherein the Court of Appeal held that it would amount to documentary hearsay where a witness recites the contents of a document not made by him and where the maker of the document is not called as a witness in the suit. He stressed that the Saraki case was also dealing with a no-case submission and would thus be applicable in the circumstances of this case. He also relied on the case of EKPO V. STATE (2001) 7 NWLR (PART 712) 292.
In respect of the alleged offence of conspiracy, Mr. Sofunde argued that a meeting by the defendants with other persons or stakeholders without more cannot be proof of conspiracy. He argued that the prosecution must prove that the defendants had reasonable knowledge that the N450 million which formed the subject matter of the meeting form part of the proceeds of an unlawful act. He argued that there is no scintilla of evidence before the court that they had such reasonable knowledge.
On Exhibits 1 and 1A which were signed by the defendants acknowledging receipt of the funds, he argued that the exhibits could not be deemed to be receipts as evidence before the court show that they were signed on the 25th of March 2015 and the defendants did not collect the money till the 27th of March 2015. He also argued that the failure of the prosecution to call evidence especially particular people whose names were mentioned by the 1st Defendant, Mr. Belgore, in his statement to the EFCC was detrimental to the case of the prosecution and he relied on the cases of FRN V. BUKOLA SARAKI; STATE V. NNOLIM & ANOR (1994) 5 NWLR (PART 344)394; STATE V. AJIE (2000) 11 NWLR (PART 678) 434; AKONO V. NIGERIAN ARMY (2000) 14 NWLR (PART 687) 318; STATE V. EMINE & ORS (1992) 7 NWLR (PART 256) 658 and OMOTAYO V. STATE (2012) LPELR – 9358 (CA).
He further argued that Exhibit 3 which had been tendered had alterations on it which he believes was done after the document was admitted. He submitted that it doesn’t matter if the alterations were done before or after the document was admitted as the said alterations made the document worthless and liable to be expunged. He relied on the case of DAKOLO & ORS V. REWANE-DAKOLO & ORS (2011) LPELR – 915 SC 1. He urged the court to hold that the 1st defendant has succeeded in showing that no case has been made out against him and that he is entitled as of right to be discharged and acquitted.
Counsel to Prof Abubakar Suleman, the 2nd defendant in the charge, Chief O. Ayanlaja on his part argued that before the charge of conspiracy can be proved, one of the essential ingredients that must be proved is knowledge and the prosecution has failed to prove that. He further relied on the submissions made by the 1st defendant.
The prosecutor, Mr. Rotimi Oyedepo in his response argued that a prima facie case has been made against the defendants as there was sufficient evidence linking the defendants to the offences charged. He submitted that the charge against the defendants can be summarized under 3 heads: conspiracy, taking possession and using funds which they ought to have reasonably known form proceeds of an unlawful act and making cash payments above the threshold prescribed under the Money Laundering Prohibition Amendment Act without going through a financial institution.
On the issue of knowledge of the unlawful nature of the funds, Mr. Oyedepo argued that the case of the prosecution is not that the defendants knew that the funds formed proceeds of an unlawful act but that the defendants ought to have reasonably known. He argued that the standard of establishing the knowledge of the defendants is a statutorily qualified one provided for in Section 15(2) of the Money Laundering Prohibition Amendment Act.
He submitted that the evidence by the prosecution shows how the sum of 115,110 USD was warehoused in Fidelity Bank by the former Minister of Petroleum, Mrs. Diezani Alison-Madueke and the sum subsequently converted into naira and paid out to several beneficiaries. The instant defendants were beneficiaries of the sum of 450 million Naira out of the money and were paid by Fidelity Bank. He argued that the defendants were not customers of Fidelity Bank and did not use a cheque or any other banking instrument to receive the funds and thus ought to have reasonably known that the funds which was not being paid to them through legitimate banking procedures or conventions were proceeds of an unlawful act.
Mr. Oyedepo further argued that Exhibits 1 and 1A signed by the defendants acknowledging receipt of the funds proved the charge of conspiracy as their minds met when they signed the ‘receipts’. He argued that contrary to the submission of Mr. Sofunde, there was nothing on the face of the exhibits (1 and 1A) showing the date they were signed and argued further that the date of signing the receipts was inconsequential as it is not a material element or ingredient that must be proved.
On the alleged offences of making cash payments beyond the threshold allowed by law, Mr. Oyedepo argued that by the provisions of Section 1(a) and 16 of the Money Laundering Prohibition Amendment Act, the offence was a strict liability offence. There is therefore no requirement or burden on the prosecution to prove intention. He relied on the recent decision of the Supreme Court in IKUFORIJI V. FRN. He stated that the defendants had admitted in their statements to the EFCC (exhibits 5 and 7) how they took possession of the money and the various cash payments made therefrom.
On the submission by Mr. Sofunde on the failure to call persons named by the 1st defendant in his statement, Mr. Oyedepo submitted that the prosecution is only bound to call material witnesses and is not required to call witnesses to prove facts already admitted by the defendants. On the reliance on the case of FRN V SARAKI on documentary hearsay, Mr. Oyedepo relied on the case of OBOT V. STATE and submitted that the evidence given by the investigating officer was not hearsay as he gave evidence of what he saw and discovered in the course of investigations which was further corroborated by the evidence of another witness, documentary evidence and the unequivocal admission of the defendants. He argued that the evidence was permissible in law.
On the alterations made on Exhibit 3, Mr. Oyedepo stated that the document was in that form when it was tendered, and objections were raised on it which was overruled by the court. He urged the court to refuse the prayer by Mr. Sofunde to expunge the document from the evidence before the court.
Mr. Oyedepo finally submitted that at this interlocutory stage, the court must refrain from evaluating the evidence and has been enjoined to be very brief in its ruling refusing a no case submission as it is sufficient for the court to simply say that the defendants have a case to answer without more and he relied on the case of ADAMA V. STATE (2017) LPELR – 422. He urged the court to find that the defendants have a case to answer.
Mr. Sofunde SAN in his reply on points of law argued that the brevity of the ruling on no case submissions would only apply if the no case submission is rejected and would not apply if it is upheld as it would not be interlocutory at that point but a judgment of the court.
On the reliance of the prosecution on the case of OBOT V. STATE on the hearsay evidence of the investigating officer, he submitted that the case did not contradict the case of FRN V. SARAKI but that assuming it did, the case of FRN V. SARAKI being latter in time would be binding on the court. He relied on the case of OSAKUE V. FEDERAL COLLEGE OF EDUCATION TECHNICAL ASABA & ORS (2010) 10 NWLR (PART 1201)1 on the principle that where there are two conflicting decisions of the same court, the latter in time prevails.
Still on the evidence of the investigating officer, Mr. Sofunde argued that once the court finds that the evidence is hearsay, the issue of it been corroborated would not arise because there can only be corroboration of legally admissible evidence.
On the alterations made on Exhibit 3, Mr. Sofunde argued that the earlier ruling by the court on the admissibility of the document was irrelevant as it did not consider the issue of alteration which had not arisen at that time. He relied on the additional authority of AKYEN & ANOR V. MUAZU & ORS (2009) LPELR – 3697 (CA) in arguing that the document was worthless. He urged the court to uphold the no case submission.
Justice Aikawa has adjourned the suit to the 12th of April 2018 for ruling.