➥ CASE SUMMARY OF:
Brila Energy Limited v. Federal Republic of Nigeria (2018) – CA
by “PipAr” Branham-Paul C. Chima.
➥ COURT:
Court of Appeal – CA/L/658CA/2017
➥ JUDGEMENT DELIVERED ON:
Monday, the 19th day of March, 2018
➥ AREA(S) OF LAW
Tendering electronic documents;
Prescribing certification fee;
Fraud.
➥ PRINCIPLES OF LAW
⦿ FOUR CONDITIONS REQUIRED UNDER SECTION 84(2)
By Section 84(2) of the Evidence Act, 2011, there are four conditions which are required to be satisfied in relation to the document and computer in question – 1. That the statement sought to be tendered was produced by the computer during a period when it was in regular use; 2. That during the period of regular use, information of the kind contained in the document or statement was supplied to the computer; 3. That the computer was operating properly during that period of regular use; and 4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use. — J.H. Sankey, JCA.
⦿ CERTIFICATE UNDER SECTION 84(4) CAN BE PRODUCED BY A NON EXPERT
Another condition for the admissibility of electronic evidence under Section 84(4) of the Act is the production of an authentication/trustworthiness certificate of the computer used in producing the documents. From case law, this subsection permits even non-experts to issue such a certificate, especially persons who, though not possessing the required professional qualifications may have acquired some practical knowledge and being in the position described in the subsection to bring him within the definition of an expert by the expanded definition of an expert in Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (Pt. 1377) 374. Whether an expert is competent in his field is a matter for the Court to decide, applying the credibility test after hearing his oral testimony. — J.H. Sankey, JCA.
⦿ UNDER SECTION 84, TRUTH OF THE STATEMENT CONTAINED IN THE DOCUMENT IS LEFT TO WEIGHT THE COURT WILL ATTACH
Section 84, which is similar to Section 69 of UK PACE 1984, does not require the prosecution to show that the statement contained in the document is likely to be true. Whether it is likely to be true or not is a question of weight for the Court to decide. Instead, all it requires as a condition for the admissibility of a computer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned with the way in which the computer has dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. See DPP V Mckeown (1997) 1 All ER 737. — J.H. Sankey, JCA.
⦿ CERTIFICATION: PAYMENT OF LEGAL FEES IS AN INTEGRAL PART OF THE CERTIFICATION PROCESS
In Tabik Investment Ltd V Guaranty Trust Bank Plc (2011) LPELR-3131 (SC); & Biye V Biye (2014) LPELR-24003(CA) amongst other numerous decisions, the Supreme Court and this Court have stated emphatically that payment of legal fees and evidence of same is an integral part of the certification process, it cannot be waived and none can be exempted from paying such certification fees. It is not in issue that the documents tendered as Exhibit 41 are public documents, and the law is that for them to be legally admissible evidence, they must be duly certified – Sections 102 to 105 of the Evidence Act, 2011; Alamieyeseigha V FRN (2006) 16 NWLR (Pt. 1004) 1; & Araka V Egbue (2003) 17 NWLR (Pt. 848). It is also the law that, with regard to public documents, persons interested in being issued with certified true copies of same by those having custody of them, must pay the prescribed fees before same are issued. — J.H. Sankey, JCA.
⦿ ORAL EVIDENCE MUST BE DIRECT – SECTION 126 EVIDENCE ACT 2011
It is correct, as submitted, that Section 126(a)-(d) of the Evidence Act, 2011 provides inter alia that “oral evidence must, in all cases whatever, be direct”. The rationale for the rule can be said to be: (1) The unreliability of the original maker of the statement who is not in Court and not cross-examined; (2) The depreciation of the truth arising from repetition; (3) Opportunities for fraud; (4) The tendency of such evidence to lead to prolonged inquiries and proceedings; (5) Hearsay evidence tends to encourage the substitution of weaker evidence for stronger evidence. — J.H. Sankey, JCA.
⦿ FORGED DOCUMENT IN INTERMEDIATE STEP IN THE SCHEME OF FRAUD
The law is that where a document was used as an intermediate step in the scheme of fraud in which the accused is involved, if it shown that such a document, was false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit the forgery. It is therefore immaterial who actually forged a document so long as an accused person is a party to the forgery. — J.H. Sankey, JCA.
⦿ PROVING THE OFFENCE OF UTTERING
Indeed, to establish the offence of uttering, the prosecution must prove that (a) the document/writing was false; and (b) the false document was knowingly and fraudulently uttered. — J.H. Sankey, JCA.
⦿ FOR A CONTRADICTION TO BE FATAL, IT MUST BE MATERIAL
For a contradiction to be fatal to any case or evidence, it must be on material points. Put another way, discrepancies do not negative an otherwise credible evidence of a witness. Before the evidence of the prosecution is said to be contradictory in nature such as to create a doubt as to which of two or more alternative versions should be believed, it must be such as to change the course of events. The contradiction in this respect must be material and fundamental. That is, it must imply that there are two or more conflicting accounts or versions of the same incident. Contradictions can therefore be said to have occurred where an account of an incident by a witness is at variance and glaringly too with another person’s account of the same incident, such that accepting the account of one witness would mean rejecting the version of the other because both accounts are mutually exclusive and in conflict. If every contradiction, however trivial to the overwhelming evidence before the Court, will vitiate a trial, then almost all prosecution cases will fail. Human faculty, it is said, may miss details due to lapse of time and error in narration in order of sequence. Going forward and even assuming that there were inconsistencies in the testimonies of the witnesses, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. See Ojeabuo V FRN (2014) LPELR-22555(CA) at 21, Paras C-F; Iregu V State (2013) 12 NWLR (Pt. 1367) 92; Musa V State (2013) 9 NWLR (Pt. 1359) 214; Famakinwa V State (2013) 7 NWLR (Pt. 1354) 597; Osung V State (2012) 18 NWLR (Pt. 1332) 256; Osetola V State (2012) 17 NWLR (Pt. 1329) 251. — J.H. Sankey, JCA.
⦿ EFFECT ORDINARY MEANING WHERE WORDS OF STATUTES ARE CLEAR
The law is settled that where the words of a statute are clear, precise and unambiguous; the law mandates the Court to give such words their ordinary and literal meaning without any interpolation as there is nothing to interpret. The rationale behind this being that the cardinal function of the Courts is to declare the law and not to make law – jus dicere not jus dare. See Nwude V FRN (2015) 5 NWLR (Pt. 1506) 471; Raji v State (2012) LPELR-7968(CA) 75-78, paras F-F; Amoshima V State (2011) 4 NWLR (Pt. 1268) 530; & Tanko V State (2009) 4 NWLR (Pt. 1131) 430. — J.H. Sankey, JCA.
⦿ MEANING OF HEARSAY
By the hearsay rule, an assertion other than one made by a person while giving oral evidence in Court is inadmissible as evidence of the facts asserted. In very simple terms, hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made. — O.A. Otisi, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Jummai Hannatu Sankey, J.C.A.
➥ APPEARANCES
⦿ FOR THE APPELLANT
Prof. Taiwo Osipitan, SAN.
⦿ FOR THE RESPONDENT
S.K. Atteh, Esq.
➥ CASE FACT/HISTORY
This Appeal is against the Judgment of the High Court of Justice Lagos State in Charge No. ID/196c/2012, delivered on March 16, 2017 by Okunnu, J. Brilla Energy Limited, the Appellant herein and 2nd Defendant at the lower Court, was one of the companies investigated for fraud subsidy on Premium Motor Spirit (PMS) by the Economic and Financial Crimes Commission (the EFCC).
At the conclusion of investigation, the Appellant and the 1st Defendant were arraigned for trial on a 13 count Charge for obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, Forgery contrary to Section 467(2) (k) of the Criminal Code Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468 of the Criminal Code Cap. C17, Laws of Lagos State. They both pleaded not guilty and the matter proceeded to trial.
At the close of the Respondent’s case, the Appellant and the 1st Defendant entered a “No Case Submission” which was however overruled. Thereupon, the lower Court called upon them to enter their defence. However, they opted to rest their cases on that of the Respondent. The lower Court thereafter delivered its Judgment on March 16, 2017 wherein it found the Appellant and the 1st Defendant guilty on all counts. The 1st Defendant was sentenced to ten years imprisonment on the 1st count and eight years imprisonment on counts two to thirteen of the Charge, the terms of imprisonment to run concurrently. The Appellant however, was ordered to refund to the Federal Government of Nigeria the sum of N963,796,199.85k (Nine Hundred and Sixty-Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira, Eighty-Five Kobo), being the amount found to have been fraudulently obtained.
The Appellant, being dissatisfied with the decision of the trial Court, then filed an Appeal to this Court vide his Notice of Appeal on March 24, 2017.
➥ ISSUE(S) & RESOLUTION(S)
[APPEAL DISMISSED]
I. Whether the learned trial Judge rightly admitted in evidence and relied on the internet print out copy of Lloyds List of Intelligence Report (Exhibit P23-25) as well as the hearsay testimony of PW9 who tendered same in evidence for the purpose of establishing the truth of prosecution’s allegations that the mother vessel, M/T LIMAR was not at the Port of loading and point of trans-shipment at the relevant times?
RULING: Yes – IN RESPONDENT’S FAVOUR.
A. THAT THE RESPONDENT SATISFIED SECTION 84 OF THE EVIDENCE ACT
“There is abundant evidence on record to show that PW9, in tendering Exhibits P23 to P25, satisfied these conditions. PW9 testified extensively before tendering the documents and laid the necessary foundation for their admission as e-documents under Section 84 of the Act. Thus, the requisite evidence in relation to the use of the computer was given and they sufficiently established the conditions set out in Section 84(2) of the Act.”
“On the submission of learned Senior Counsel that Exhibit P22 did not satisfy the requirement on the certification of the computer/device in Section 84(2) of the Evidence Act, I beg to differ. From the comprehensive evidence given by PW9, which has already been well stated by the Respondent in his Brief, as well as in the Judgment of the trial Court, Exhibit 22 is a certificate authenticating the computer that was used to down-load and print out the information on the said database.”
B. THAT THE LLOYDS’ LIST IS AN EXCEPTION TO THE HEARSAY RULE
“It has also been canvassed by the Appellant that the PW9 was not the maker of the said document referred to as Lloyds’ List which was tendered through her. Again, from the totality of the evidence of the PW9, it is evident that the Lloyds’ List Intelligence report is a business record about the movement of ships worldwide kept by Lloyds and made available to business organizations or individuals who subscribe to it by the payment of prescribed fees. It is therefore admissible under Sections 41 and 51 of the Evidence Act, 2011. Consequently, such a record is an exception to the hearsay rule.”
“In addition, under Section 41 of the Evidence Act, 2011, there is an exception to the hearsay rule that relates to electronic evidence when it is a statement made in the ordinary course of business. Also, under the business record exception to the hearsay rule, Section 51 of the Act provides that electronic records regularly kept in the course of business are admissible whenever they refer to a matter before the Court.”
C. THAT THE LLOYDS’ LIST BEING A BUSINESS RECORD NEED NOT BE TENDERED THROUGH THE MAKER
“It is also the contention of the Appellant that the said Lloyds’ List is inadmissible in evidence because the PW9 had no personal knowledge of the facts contained in the print-out as she was not the person who uploaded the information on the website on the movement of M/T Overseas Limar, not being an employee and/or officer of Lloyds organization. However, the Lloyds’ Intelligence List, being a business record which is also computer-generated, it is not necessary that it should be tendered through the maker. See Abubakar V Chuks (2007) 18 NWLR (Pt. 1066) 386; Obembe V Ekene (2001) 10 NWLR (Pt.722) 677; & Torti V Ukpabi (1984) 1 SC 370.”
.
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II. Whether the learned trial Judge rightly or wrongly admitted in evidence and attributed probative value to Exhibit P41 series which were documents made in Greece in Greek language and purportedly translated to English language in order to establish the truth of the allegation of non importation and non STS transfer of the PMS from the mother vessel M/T Overseas Limar to 1st daughter vessel Delphina?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE EFCC HAD CUSTODY OF THE DOCUMENTS AT ALL TIMES AND NEED NOT PRESCRIBE CERTIFICATION FEE
“In the light of these peculiar facts, the EFCC could not be expected to pay fees for the certification of documents which were at all times in their custody and which were produced from their custody, in proof of a case which they investigated. These circumstances clearly do not fall within the purview of Section 104 of the Act in that it is the same EFCC, as the public officer in custody of the documents, who actually produced and tendered the documents in Court. This is therefore a scenario/situation which is not accommodated within the provision Section 104(1) of the Act with the regard to the payment of certification fees, as none are prescribed.”
B. THAT DELAY WILL BE CAUSED IF THE TRANSLATORS OF THE DOCUMENT ARE TO BE CALLED, HENCE EXCEPTION MUST APPLY
“In respect of the failure of the Respondent to call the makers of the statements contained in the Exhibit P41 series to testify in line with Section 83(1) of the Evidence Act, I endorse the reliance of the learned trial Judge on Section 83(2) thereof. Clearly that provision admits of such a situation where a Court may dispense with the appearance of the maker of a statement which is sought to be admitted in evidence if, having regard to all the circumstances of the case, it is satisfied that undue delay or expense would otherwise be caused. It may then proceed to order that a statement, such as that referred to in Subsection (1) of Section 83, be admissible as evidence, notwithstanding that the maker is available but not called as a witness. In the instant case, the circumstances which warranted the invocation of Section 83(2) of the Act by the learned trial Judge were articulated in the Judgment thus at page 1474 of the Record: “In my humble estimation, it would [be] a very expensive venture indeed, and it would cause delay in an ongoing criminal case of public interest which by public policy is to suffer minimal delay, to have officers from the Greek Ministry of Justice, Ministry of foreign Affairs, Ministry of Mercantile Marine, as well as the Magistrate from the Piraeus Court of First Instance and the Prosecutor Court of Appeal, all to fly down to Nigeria and testify before me on documents they made which had already been authenticated by the Nigerian Ambassador to Greece in his covering letter to the EFCC.” Based on the facts disclosed on record through the various witnesses, in particular PW19, and documents attached to Exhibit P41 in conjunction with the provision of Section 83(2) of the Evidence Act, I have no reason to disturb these findings.”
C. THAT THE EMAIL TENDERED AT THE PIRAEUS COURT NOW FORMS PART OF THE OFFICIAL RECORDS OF THE GREECE GOVERNMENT
“Another issue that has been raised by the Appellant relates to a number of documents also attached to the Ambassador’s covering letter in Exhibit P41, being correspondences via electronic mail otherwise known as ’email’. It is argued that the requirement of Section 84 of the Evidence Act was not complied with because the certificates of trustworthiness of the various computers in Nigeria and Greece which printed the emails were not produced. It is evident from the bundle of documents attached to Exhibit P41 that the said raft of e-mails comprised of correspondences between the Appellant and Marvin Shipping Services Inc. They were un-earthed during the investigations carried out by the Greek authorities at the behest of the Federal Government of Nigeria. During the proceedings conducted at the Piraeus Court of First Instance, the legal representative of Marvin Shipping Services Inc., in response to the question of whether the company had had business dealings with Brila Energy Ltd, responded as follows at page 16 of Exhibit P41 ? “Once more from what I can remember. In relation to the questions put forth by the Nigerian Authorities I will submit a written testimony with all relevant documents attached. I have nothing else to add.” (Emphasis supplied) Pursuant to this undertaking, the witness himself issued his testimony (Witness Statement on Oath at pages 17-18 of Exhibit P41) and submitted the various documents relevant to the company’s transactions with Brila Energy Ltd, which documents included the raft of e-mails between Marvin Shipping Services Inc., and the Appellant which were attached to Exhibit P41. In view of this, I cannot but agree with the learned trial Judge that the-raft of e-mails produced by the witness before the Piraeus Court in Greece formed a part of the official records of the Greek Government in the conduct of its investigation pursuant to the request by the Nigerian Government for mutual legal assistance, which it subsequently sent through the Embassy of Nigeria in Greece to the EFCC.. It is therefore also covered by the relevant provisions of the Evidence Act already referred to.”
.
.
III. Whether the learned trial Judge was right or wrong to have relied on the hearsay evidence of PW17 and Exhibit P7 to hold that the prosecution proved beyond reasonable doubt the offence of forgeries of 2 (two) Saybolt Concremat documents (pages 26 & 29 of Exhibit P1) against the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT ANY COMPANY AGENT CAN TENDER COMPANY DOCUMENT IRRESPECTIVE OF WHETHER THE AGENT IS THE MAKER
“It is evident from Exhibit 6, the letter of the EFCC to Saybolt Company, that it was a request for information on whether, based on the day to day activities of Saybolt Concremat Brazil, such an operation was performed by it for Brila Energy Ltd in 2010 on the mother vessel, M/T Overseas Limar, and the company kept a record of such. By a combination reading of Sections 41 and 51 of the Evidence Act, records maintained by organizations and business concerns (such as corporations and banks) in respect of their day to day activities, are business records which any of its officers, not necessarily the maker, can give evidence in Court of its contents. PW17, the Managing Director of Saybolt Nigeria Ltd., explained the process by which the report, Exhibit P7, was procured from Saybolt Concremat Brazil following the inquiry from the EFCC in Exhibit 6. The Appellant did not, before the trial Court or even before this Court, contest that PW17 is not an employee/principal officer of Saybolt Nigeria Ltd, a Division of Corelab Nigeria. What the Appellant attempted to do instead during his cross-examination of the PW17, was to suggest that Saybolt Nigeria Ltd, a Division of Corelob Nigeria had no correlation with Saybolt Holland – the Head office of Saybolt, and Saybolt Concremat Brazil, the particular office of Saybolt in Brazil which purportedly authored the report in Exhibit P7. However, PW17 succeeded in explaining the connection between the companies. More importantly the report, Exhibit P7, established that Saybolt Concremat Brazil did not issue the inspection report attached to the bundle of documents in Exhibit P1. Consequently, based on the facts and the law, I am of the considered view that the evidence of PW17 and Exhibit 7 do not constitute hearsay.”
.
.
IV. Whether the learned trial Judge was right when she held that the prosecution proved beyond reasonable doubt the offence of forgeries of 4 Inspectorate Marine Services documents (Exhibit P8) against Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT FORGERY WAS PROVED BY THE RESPONDENT
“The uncontroverted evidence before the trial Court is that the information was not true, and so the documents, knowingly and deliberately presented by the Appellant, told lies about themselves. These documents were held out by the Appellant and 1st Defendant as true and presented to PPPRA to make a false claim for the payment of subsidy. Based on these false documents, as well as other documents attached to Exhibit P1, subsidy to the tune of over N900, 000.00 was paid to the Appellant. Thus, the elements of the offence of forgery of these documents were undoubtedly proved See Alake V State (1991) 7 NWLR (Pt. 205) 567; Babalola V State (1989) 4 NWLR (Pt. 115) 264 at 277.
In the latter case, the Supreme Court, per Nnaemeka-Agu, JSC expatiated on the nature of what constitutes forgery in the following words – “The mere production of Exh. D1, which not only told a lie to wit: that it issued from an existing bank, but also told a lie about itself – that it was a genuine and duly issued bank draft ? made it clearly a forgery under Section 399. For those were the constituents of intent to defraud. Also, the moment it was knowingly used to induce the Carpet Company to part with their eight rolls of carpet on the belief that Exhibit D1 was a genuine bank draft, the element of intent to deceive was complete. So the two intents were present. One [of them] would have been enough.” (Emphases supplied)
In the instant case, both the intent to deceive and the intent to defraud, as highlighted by the learned jurist in the above authority, were established by the documents attached to the Exhibit P1; specifically the two documents purported to have emanated from Saybolt Concremat Brazil; and these four documents purported to have been issued to confirm that Inspectorate Marine Services Nig Ltd carried out the inspection during the operations in respect of the ship to ship transfer from M/T Overseas Limar to M/T Delphina. Thus, the evidence from PW19 (an EFCC operative/investigator), PW17 (the Country Manager of the Saybolt Nigeria Ltd, a Division of Corelab Nigeria Ltd); and now PW5 (the representative of Inspectorate Marine Services Nig. Ltd) is to the effect that these documents tell a lie (being fake documents) and also tell lies about themselves (because the information contained therein is false). The learned trial Judge was therefore on solid ground when she found that, even if the stamp of the Inspectorate on the documents was found to be genuine, as suggested by the Appellant, it was fraudulently impressed on the documents in issue because the company knew nothing about them, in order to deceive the Federal Government of Nigeria into believing that there had been a trans-shipment of PMS imported from Brazil via MIT Overseas Limar into M/T Delphina, as supervised and verified by Inspectorate Marine Services.”
.
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V. Whether the learned trial Judge was right when she held that the prosecution proved beyond reasonable doubt the offence of uttering 2 (two) Saybolt Concremat documents (pages, 26 & 29 of Exhibit P1) and 4 (four) Inspectorate Marine Services documents (Exhibit P8) against the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE DOCUMENTS UTTERING WAS PROVED
“As has been rightly submitted by learned Senior Counsel for the Appellant, the offence of uttering is akin to the offence of forgery and the same elements of proof, as well as punishment, apply. Thus, in view of the earlier findings of this Court (under issues 3 and 4 above), it is an established fact that the six documents in question, made up of the two documents purported to be from Saybolt Concremat Brazil and the four documents by Inspectorate Marine Services (purportedly evidencing the inspection operation of the trans-shipment between the named vessels), were forged. Thus, the ingredients of the offence of uttering of these documents were mostly established. I therefore adopt my findings under issues three and four above on this issue.”
“From the uncontroverted evidence before the trial Court, the Appellant knowingly held out these false documents and presented them to the PPPRA as true in order to gain an advantage, to wit: to deceitfully claim an entitlement for the payment of subsidy for fuel that was not sourced and imported as claimed in the documents. The Appellant knew that the documents at pages 19, 22, 26, 27, 29 and 30 were false/forged, yet it deliberately presented them to the PPPRA, based upon which the subsidy of N953,796, 199.85k was paid by the Federal Government of Nigeria to the Appellant, Brila Energy Limited. The learned trial Judge was therefore right in her findings that the offence of uttering of the six documents in question was proved beyond reasonable doubt.”
.
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VI. Whether the learned trial Judge rightly or wrongly held that the prosecution proved beyond reasonable doubt the offence of Advance Fee Fraud of N963,796,119.85 received as fuel subsidy by false pretence?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE DOCUMENTATION SUBMITTED TO THE PPPRA REGARDING THE IMPORTATION OF PMS WERE FALSE
“It is an undisputed fact that the Appellant presented all the attached bundle of documents in Exhibit P1 to PPPRA contending that, in line with the Import Permit granted to Brila Energy Ltd, it had successfully imported the quantity and quality of PMS stated through the mother and daughter vessels and from the Ports of loading and discharge 94 documented therein, and so was entitled to be paid subsidy for the importation of PMS to the tune of N963, 796, 119.85. From the representation made to the PPPRA for the payment of subsidy, the Appellant presented seventy-one documents contending that he imported approximately 13,200 metric tons of PMS from Petrobas in Brazil through the mother vessel, M/T Overseas Limar, trans-shipped same into the first daughter vessel M/T Delpina at offshore Cotonou, and subsequently effected another ship to ship transfer from M/T Delphina to the 2nd daughter vessel, M/T Dani 1, still at offshore Cotonou. Thereafter, the said quantity of PMS was discharged into the Obat Tank Farm at Apapa, Lagos by M/T Dani 1. However, upon an in-depth and comprehensive investigation by EFCC, the documentation submitted to PPPRA did not stand up to scrutiny as most of them were discovered to be contrived and out rightly false.”
B. THE TRIAL JUDGE RIGHTLY APPRAISED THE EVIDENCE ADMITTED
“It is also noteworthy that the case against the Appellant and the 1st Defendant was largely based on documentary evidence (comprising of forty-three (43) documents) which was buttressed and substantiated by the evidence of no less than twenty witnesses called by the prosecution. The learned trial Judge commendably and properly appraised and evaluated the entirety of the evidence before the Court in arriving at her decision. Therefore, there is no compelling reason for this Court to interfere with same. It must be observed that astonishingly, in the face of this mass of evidence, the Appellant and 1st Defendant decided to keep mum, adducing no evidence – either oral or documentary, to contradict or impugn the evidence amassed before the trial Court by the prosecution. This, of course is their inalienable right to do since the law is settled that, in a criminal trial, the onus is always on the prosecution to prove its case beyond reasonable doubt, and the accused is not expected to prove his innocence.”
.
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VII. Whether the material and unresolved contradictions in the evidence of the prosecution witnesses (PWs) were sufficient to cast doubt on the guilt of the Appellant?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THERE ARE NO MATERIAL CONTRADICTIONS
“It is settled law that a piece of evidence will be regarded as a contradiction when it affirms the opposite of what the other evidence has stated, not when there is a minor discrepancy. Also, contradictions in evidence can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the Appeal in favour of the party raising the issue. The law is long since settled that only material contradictions in evidence can change the fortunes of an Appellant in an Appeal. See Suleimana V Laga (2013) LPELR:23223(CA) 35, paras D-F; & (2005) All FWLR (Pt. 248) 1762 at 1759. The contradictions alleged by the Appellant’s Counsel, if any, are fatal only when it goes to the substance of the case. In my considered view, there are no such contradictions. Be that as it may, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged cannot vitiate the prosecution’s case against the Appellant. See Friday V State (2016) LPELR-40638(SC) at 22, paras C-E; Yaki V State (2008) All FWLR (Pt. 440) 618; Nasiru V State (1999) 1 SC 1.”
.
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IIX. Whether the learned trial Judge rightly or wrongly admitted and acted on the irrelevant and highly prejudicial evidence of the Appellant’s Managing Director’s reputation/business relationship as Director and Shareholder of Interral Limited and Ports and Marine Cargo?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE MERE DIRECTORSHIP OF THE APPELLANT WAS NOT THE REASON FOR CONVICTION
“Much as the 1st Defendant’s directorship of these companies was mentioned by the trial Judge, it was not the reason for Appellant’s conviction. Instead, the totality of the evidence from the twenty prosecution witnesses and the forty-three exhibits admitted in evidence established that, contrary to the contention of the Appellant, Brila Energy Ltd, through its presentation in the bundle of documents attached to Exhibit P1 that it imported some 13,200 metric tons of PMS through M/T Overseas Limar at Port Sebastio in Brazil, which was trans-shipped into MT Delphina at offshore Cotonou, and from there into M/T Dani 1, was proved to be an entirely false representation. Thus, notwithstanding any relationship which the 1st Defendant may or may not have had with Port Cargo Experts and Interall Ltd, the totality of the documentation submitted by the Appellant to the PPPRA, which ultimately led to the Appellant being paid subsidy, was false. Consequently, irrespective of the evidence of this relationship and some documents which were contrived to make the transaction seem genuine, there was sufficient evidence before the trial Court which it acted upon to find the Appellant and the 1st Defendant culpable in respect of the offences charged.”
.
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IX. Whether the failure of the learned trial Judge to consider the evidence of prosecution witnesses which is in favour of the innocence of the Appellant and cast doubt on the prosecution’s case because it elected not to testify in its defence, amounts to a breach of its fundamental right to fair hearing, and has occasioned a miscarriage of justice?
RULING:
A. THE EVIDENCE OF THE SAID WITNESSES WERE NEITHER SUBSTANTIATED OR PROVED
“As was found by the learned trial Judge, it was the Appellant who, through its Managing Director and alter ego, (1st Defendant) voluntarily and deliberately compiled and submitted the bundle of documents attached to Exhibit P1 to the PPPRA in proof of its contention that Brila Energy Ltd imported some 13,200 metric tons of PMS through M/T Overseas Limar at Port Sebastio in Brazil, which product was trans-shipped into M/T Delphina at offshore Cotonou on dates specified in the documents. The Appellant and 1st Defendant made the presentation in Exhibit P1 of his own free will. However, this presentation and some of the crucial documents were found to be false, forged and uttered. In addition, the EFCC denied receiving the alleged document from Napa Petroleum, which company, (from the evidence of PW19), could not be traced and/or reached despite several efforts, to confirm or deny the assertions from PW14 and PW17. Consequently, the evidence of the PW14 and PW17, which the Appellant refers to as favourable to the Appellant, was neither substantiated nor proved. In the face of abundant documentary evidence to the contrary, such oral evidence cannot be preferred.”
.
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X. Whether in the circumstances of this case, the learned trial Judge was right to have ordered the Appellant to make restitution of the entire sum of N963,796,119.85 received as fuel subsidy?
RULING: IN RESPONDENT’S FAVOUR.
A. THAT THE ADVANCE FEE FRAUD ACT MANDATES THE PAYMENT OF RESTITUTION
“A proper reading of the direction in Section 11 of the Act, in my considered view, is that it has donated the additional plenitude of power to the lower Court to make an order for restitution, which is an act of reimbursing or restoring to a person something that was lost or stolen, or of paying him money for the loss, apart from any other punishment or penalty it may have already imposed on the convict. See Black’s Law Dictionary, Eighth Edition, page 1339. In situating this provision with the order of restitution made by the lower Court, I unhesitatingly come to the conclusion that the order is entirely in accord with the plenitude of power ascribed to it by the provision. Put another way, the order made falls unswervingly within the ambit of the provision. Also, I am of the view that the trial Court has no modicum of discretion to exercise in the matter due to the deployment of the word “shall”, which in the eyes of the law, imputes compulsory and mandatory obligations. In addition to which, where a legislation, such as the said Act, prescribes a method of doing something, that mode and no other, must be adopted otherwise the expected function will be deemed unaccomplished. See again Raji V State (supra); Amoshima V State (supra); & Tanko V State (supra).”
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✓ DECISION:
“On the whole, having resolved all ten issues against the Appellant, the consequence is that the Appeal is devoid of any speck of merit and thus is ill-fated. In the circumstance, I dismiss the Appeal Accordingly, I affirm the Judgment of the High Court of Justice, Lagos State, inclusive of the order for restitution of the sum of N963, 796, 19.85k (Nine Hundred and Sixty Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Ninety-Nine Naira, Eighty-Five Kobo) to the Federal Government of Nigeria, in Charge No. ID/196c/3012 between The Federal Republic of Nigeria V Rowaye Jubril & Brila Energy Limited, delivered on 16th March, 2017 by Okunnu, J.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Sections 37, 41, 51, 84, 104, 126, Evidence Act 2011;
Section 11 of the Advance Fee Fraud and Other Related Offences Act.
➥ REFERENCED (CASE)
⦿ QUALIFICATION FOR CERTIFICATION – “PRESCRIBED IN THAT RESPECT”
In the case of Lamido V FRN (Unreported) Appeal No. CA/K/436/C/2013, this Court per Abiru, JCA stated thus – “A look at this provision vis-a-vis the provision of Section 111(1) of the Evidence Act, Cap E14, Laws of the Federation 1990 interpreted in Tabik Investment Ltd V Guaranty Trust Bank (supra) shows that they are similar, but for the fact that the requirement for the payment of legal fees for certification in Section 104 of the Evidence Act, 2011 is qualified by the words “prescribed in that respect”. This qualification is not contained in the provision of Section 111 of the Evidence Act, 1990. It is a fundamental rule of interpretation of statute that words used in a statute are not put there for fun; they are for a purpose. The inclusion of the words “prescribed in that respect” by the legislature in Section 104 of the Evidence Act, 2011 could not have been by mistake or by oversight. It was intended to have a meaning and effect.”
⦿ THOSE WHO WILL BE CHARGED FOR FORGERY – PARTICIPLES CRIMINIS
In Agwuna V AG Federation (1995) 5 NWLR (Pt.396) 418, the Supreme Court per Iguh, JSC held as follows – “It is certainly not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. The position of the law is that all persons who are, participles criminis whether as principals in the first degree or as accessories before of after the fact to a crime are guilty of the offence and may be charged and convicted with [the] actual commission of the crime.”
⦿ MINOR VARIATIONS IN TESTIMONY IS A BADGE OF TRUTH
Oputa, JSC in Ikemson V State (1989) LPELR-1473(SC) at 44 where he magisterially intoned as follows – “Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored or tailored witnesses. Minor variations in testimony seem to be a badge of truth. But when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite.”
⦿ WHEN IS A TESTIMONY HEARSAY
In the case of Subramaniam vs Public Prosecutor, (1956) 1 WLR 965 at 969, hearsay evidence was described in the following terms: “Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made”.
⦿ PROOF THAT COMPUTER IS RELIABLE CAN BE DONE BY ORAL EVIDENCE OR WRITTEN CERTIFICATE
R v. Shephard [1993] 1 All ER 225: “Proof that the computer is reliable can be provided in two ways: either by calling oral evidence or by tendering a written certificate subject to the power of the Judge to require oral evidence. It is understandable that if a certificate is to be relied upon it should show on its face that it is signed by a person who from his job description can confidently be expected to be in a person to give reliable evidence about the operation of the computer. This enables the defendant to decide whether to accept at its face value or to ask the Judge to require oral evidence which can be challenged in cross examination.”
➥ REFERENCED (OTHERS)
