Tax Crimes Prosecution - Principles, Procedures & Practical Insights into Courtroom Successes -...

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Tax Crimes Prosecution: Principles, Procedure & Practical Insights into Courtroom Successes1

Olumide, Bidemi Daniel2

Abstract: The principles for the successful prosecution of “tax crimes” is not materially different from that

for the successful prosecution of other crimes. A “tax crime” is a crime and the convicted

perpetuators of tax crimes are criminals. What is pertinent is to understand and appreciate

what the words “tax crimes” stand to represent. This is in the face of having not accessed any

legislative or judicial attempt to define it. Accordingly and for this paper, the expression will be

understood and appreciated in its literal sense, a collective noun for, perhaps, all acts and

omissions that our tax laws expressly label as offences and prescribe punishments for.

Accordingly “tax crimes”, just as the pluralization connotes, refers not to any singular crime, but

a pool of different crimes with varying manifestations.

The success of the prosecution of any crime foundationally lies in a thorough knowledge of the

crime. That an act or omission constitutes a crime is the exclusive preserve of the State to decree;

but that that act or omission has been committed is for the prosecutor to allege and prove. It is

the nuances of such allegations and their proof that this paper is concerned with. Accordingly,

this paper upholds the thorough understanding of (i) the laws and nature of tax crimes; and (ii)

the legal requirements for a conviction; as the central principles for successful tax crimes

prosecution. How this business of tax crimes prosecution should be carried out in light of our

extant laws and practice of law enforcement and judicial process is the “Procedure & Practice”

aspect of this paper.

The paper is divided into 3 major parts, to wit: (i) a brief overview of the nature and laws on

tax crimes; (ii) snapshots and review of some tax crimes; (iii) an appreciation of major

evidentiary rules; and (iv) some practical insights for successful prosecutions. It is the hope of this

discussant that at the end of the paper and the presentation to follow, participants would have

been better enriched in the knowledge of the basic things that needs to be done in the

enforcement of the criminal aspects of our tax laws.

1 Being a Paper delivered at the United Nation Office on Drugs and Crime Strategic Training on Corruption Crimes in Taxation, held at Abuja, Nigeria on Wednesday, December 3, 2014. 2 Olumide, Bidemi Daniel is a Legal and Tax Practitioner, resident in Lagos, Nigeria.

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PART 1: Brief Overview of the Laws and Nature of Tax Crimes

First, we need to appreciate what a “crime” is and how it differs from other unlawful conducts.

In simplified terms, a crime or criminal offence3 is an act or omission that a law defines or

describes as constituting a crime or offence and provides a punishment for, and for which the

pronouncement/declaration of a court of law is required.4

The relevant principles to be highlighted from this definition are:

1. Only the legislature, by way of a law passed to that effect, can legislate on how and

what will constitute a criminal offence.5

2. For an act or omission to constitute a crime or offence, the prescribing statute must

expressly refer to it as such. In other words, the law must name the act or omission as

constituting an offence or a crime. What this connotes is that the law’s prescription of a

penalty (usually pecuniary in nature) without first expressly constituting the act or

omission as an offence or crime, removes such act or omission outside the ambits of a

crime. Examples of tax-related acts or omissions which carry punishments but do not

constitute crimes include: the non-payment of companies income tax under Section 85(1)

of the Companies Income Tax Act, 19796 (“CITA”) pursuant to which a penalty of: (i)

10% of the tax payable; and (ii) interest at bank lending rate from the date when the

tax became payable, are prescribed. In contrast, take note of Section 85(2) which makes

it in an offence for a company to, without lawful justification or excuse, fail to pay its

company income tax within one month when the tax became due.7

3. A punishment must be statutorily prescribed for the act or omission to constitute an

offence. The absence of a punishment takes the act or omission outside the scope of

what we herein refer to as criminal offences.

3 It is immediately noteworthy that the expression “crime” and “offence” are often used interchangeably and may be so used in some aspects of this paper 4 In the Southern States of Nigeria where the Criminal Code Act, 1916 (currently compiled as Cap. C…, Laws of the Federation of Nigeria, 2004) applies, “offences” are classified into three types, depending on the extent of the sentencing/punishment prescribed for the offence. Offences which are, without proof of previous convictions, punishable by death or an imprisonment term in excess of 3 years are defined as “Felonies”. Offences which are punishable by an imprisonment term not exceeding 3 years but not below 6 months are defined as “Misdemeanours”. All other offences which are neither Felonies nor Misdemeanours are defined as “Simple Offences”. 5 Section 36(12) Constitution of the Federal Republic of Nigeria, 1999 (“1999 Constitution”): “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provision of a law.” 6 Companies Income Tax Act, 1979 (as amended and currently compiled as Cap. C21, Laws of the Federation of Nigeria, 2004) 7 In the case of a tax assessment and in the absence of any objection, the tax becomes due on the earlier of, December 14th or the second month after the assessment was served on the Company; subject however to the discretion of the Board to extend the period – see Section 77(2) of CITA

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4. Only a court of law can declare whether an act or omission committed in a particular

circumstance constitutes a crime and accordingly deserving of no more than the

statutorily provided punishment.8

The above said, we also need to appreciate the scope of the “behemoth” called “tax evasion”.

It is no gainsaid that a cliché on the streets is the criminality of “tax evasion” and the legality

(with doubts as to its moral reprehensibility) of tax avoidance. It is however noteworthy that

other than in Section 26 of the VAT Act, does the Nigerian legislature expressly use a derivative

of “evasion” to describe a particular tax crime.9 Indeed “tax evasion” is best described as a

descriptive word for acts that are calculated to evade or get away from a lawful obligation to

subject oneself or ones economic activities to the tax laws. It is at best a collective noun for all

the myriads of tax crimes that feature in our tax laws. It is a “behemoth” to the extent that it

actually refers to so many acts and omissions that the law describes as offences and prescribes

punishments for, upon conviction by a court of law.

8 Section 36(4)(5) and (6) of the Constitution provides: (4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be

entitled to a fair hearing in public within a reasonable time by a court or tribunal: Provided that - (a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto

or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;

(b) in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.

(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved

guilty; Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

(6) Every person who is charged with a criminal offence shall be entitled to -

(a) be informed promptly in the language that he understands and in detail of the nature of the offence;

(b) be given adequate time and facilities for the preparation of his defence; (c) defend himself in person or by legal practitioners of his own choice; (d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before

any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution; and

(e) have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.

9 See item 70 in the Schedule in Part 2 below “participating in or attempting to evade VAT.”

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PART 2: Snapshot and Brief Remarks on some Tax Crimes

Below are 80 different acts and omissions that Nigerian tax laws refer to as offences or are punishable upon conviction by a Court of law.

These tax crimes (which indeed are not all that can be so called) are pulled out majorly from the Federal Inland Revenue Service (Establishment)

Act 2007 (“FIRS Act”), the Companies Income Tax Act, 1979 (as amended and currently compiled as Cap C21, Laws of the Federation of Nigeria,

2007 (May 2007 update)) (“CITA”), the Personal Income Tax Act, 1993 (as most recently amended by the Personal Income Tax (Amendment)

Act, 2011 (together “PITA”), the Petroleum Profits Tax Act, 1979 (as amended and currently compiled as Cap P8, Laws of the Federation of

Nigeria, 2007 (May 2007 update)) (“PPTA”) and the Value Added Tax Act (as amended and currently compiled as Cap V1, Laws of the Federation

of Nigeria, 2007 (May 2007 update)) (“VAT Act”).

S/N OFFENCE PUNISHMENT PROVISION BRIEF REMARKS

1. Failure to comply with a formal notice of the Service or directive of an officer of the Service (not below the rank of a Chief Inspector of Taxes) made pursuant to the powers of the Service to call for returns, books, documents and other information.

Fine: (for each offence) 100% of the value of the tax liability.

S. 26 of FIRS ACT The main ingredient for this offence is in establishing non-compliance.

2. Failure of a banker to comply with the demand of the Service for quarterly returns on individual and corporate transactions of N5million and above and N10million and above respectively.

Fine: N50,000 on individual customer and N500,000 on corporate customers.

S. 28(1)(a)(b) and (3) of FIRS Act

The main ingredient for this offence is in establishing non-compliance. Evidence that the Service had made a formal request is vital. Is the fine on each customer or on each act of non-compliance?

3. Failure of a banker to deliver the required monthly information on new customers to the RTA on or before the 7th day of the succeeding month.

Fine: N50,000 on individual customer and N500,000 on corporate customers.

S. 28(1)(a)(c) and (3) of FIRS Act; S. 49 of PITA

The main ingredient of the offence is in the non-compliance with the requirement. Is the fine on each customer or on each act of non-compliance?

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4. Failure of any person (including a banker) to provide within the time stipulated in a notice sent by the RTA, information including the name and address of the person specified in the notice.

Fine: N50,000 fine for individuals; N500,000 for corporate bodies.

S. 28(2) and (3) of FIRS Act; S. 47 of PITA

The main ingredient of the offence is in the non-compliance with the requirement. Significantly however, it has to be established that the information is/was available to the offender. Is the fine on each customer or on each act of non-compliance?

5. Unauthorised (by the Act communication or attempted communication of all information supplied or produced in connection with taxes (“confidential information”) by a past and present members or employees of the Board, Service or Ministry of Finance.

Maximum N200,000 fine or maximum 3 years imprisonment; or both.

S. 39 and 50 of FIRS Act.

Importantly: All information obtained in the tax administration process are “confidential” to all past and present members or employees of the Board, Service or Ministry of Finance. The main ingredient for this offence is in establishing that confidential information has been disclosed by the accused.

6. Failure to: deduct withholding tax or having deducted, failure to remit to the Board, within 30days from the date of deduction or the time the duty to deduct arose.

Tax withheld or not remitted + 10% per annum of tax withheld or not remitted + interest at prevailing CBN minimum re-discount rate + imprisonment for a maximum 3 years.

S. 40 FIRS Act; Ss. 78, 79, 80, 81 and 82 of CITA; S. 54(1) of PPTA

The main ingredient for this offence is in establishing non-deduction and or non-remittance.

7. Obstructing, hindering, molesting or assaulting any person or an authorised officer in the performance of any function or exercise of any power under the FIRS Act.

Fine of a maximum N200,000 or imprisonment of a maximum 3years; or both

S. 41(a) FIRS Act. The main ingredient for this offence is in establishing the acts that amounted to obstruction, hindering, molesting or assault.

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Equally relevant is that the person so obstructed, hindered, molested and assaulted was so obstructed, hindered, molested and assaulted in the performance a function or exercise of a power that is pursuant to the FIRS Act.

8. Doing anything which impedes or is intended to impede the carrying out of any search, seizure, removal or distraint.


S. 41(b) FIRS Act. The main ingredient for this offence is in establishing the act(s) which impeded or was intended to impede the execution of a lawful search, seizure, removal or distraint was done.

9. Rescuing, damaging or destroying anything liable to seizure, removal or distress or who does anything intended to prevent the procuring or giving of evidence as to whether or not anything is liable to seizure, removal or distraint.


S. 41(c) FIRS Act. The main ingredient for this offence is in establishing the act(s) which amount to rescuing, damaging, destroying or preventing the process of a lawful seizure, removal or distraint.

10. Preventing the arrest or rescuing an arrested person.

Fine of a maximum N200,000 or imprisonment of a maximum 3years; or both.

S. 41(d) FIRS Act. The main ingredient for this offence is in establishing the act(s) of preventing an arrest or rescuing an arrested person.

11. Making, executing, delivering (or causing any of such) any false declaration, notice, certificate or other document to the Service.

Fine of a maximum N200,000 + amount of tax underpaid or repaid, or imprisonment of a maximum 3years; or both.

S. 42(1)(a) FIRS Act.

The main ingredient for this offence is in establishing the falsity of any declaration, notice, certificate or other document made available to the Service.

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12. Making or providing to the Service any materially untrue answer to any question or enquiry relating to tax.

Fine of a maximum N200,000 + amount of tax underpaid or repaid, or imprisonment of a maximum 3years; or both.

S. 42(1)(b) FIRS Act.

The main ingredient for this offence is in establishing the materially untrue statement made available to the Service.

13. Counterfeiting or falsifying any document which is required by or for the transaction in relation to tax laws.


S. 43(a) FIRS Act. The main ingredient for this offence is to establish that counterfeit or false documents have been used for any tax purpose.

14. Intentionally accepting, receiving or using any counterfeited or falsified document


S. 43(b) FIRS Act. The main ingredient for this offence is to establish that a counterfeit or false document was knowingly accepted, received or used.

15. Altering any officially issued document. Fine of a maximum N200,000 or imprisonment of a maximum 3years; or both.

S. 43(c) FIRS Act. The main ingredient for this offence is to establish that there was an alteration of a document issued by a RTA.

16. Counterfeiting the seal, signature, initial or other mark of Tax Officer.


S. 43(d) FIRS Act. The main ingredient for this offence is to establish that a seal, signature, initial or other mark has been forged.

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17. A Tax Officer conniving or participating in: a. counterfeiting or falsifying any

document which is required by or for the transaction in relation to tax laws;

b. intentionally accepting, receiving or using any counterfeited or falsified document;

c. without authorisation, altering any officially issued document;

d. counterfeiting the seal, signature, initial or other mark of another Tax Officer


S. 43(e) FIRS Act. The main ingredient for this offence is to establish the participation or conspiracy of a Tax Officer in the commission of any of the offences.

18. The demand by a Tax Officer or Tax Office Agent of an amount in excess of the authorised tax assessment.

Fine: 200% of the sum in question or maximum 3 years imprisonment; or both.

S. 44(a) FIRS Act; S. 95(a)(i) and 97 of CITA; Ss. 55(1)(a)(i) and 58 of PPTA

The main ingredient for this offence is in establishing that a demand has been made. Note the qualifier in “excess of the authorised assessment of the tax”. Offence to be prosecuted with the sanction of the Service.

19. The withholding for his own use by a Tax Officer or Agent of any tax collected.


S. 44(b) FIRS Act; S. 95(a)(ii) and 97 of CITA; Ss. 55(1)(a)(ii) and 58 of PPTA.

The main ingredient for this offence is in establishing that part of the amount paid as tax has been withheld. How so in light of direct remittances? Offence to be prosecuted with the sanction of the Service.

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20. The rendering of false returns (whether in writing or orally), by a Tax Officer or Agent, of the amount of tax collected or received by him.


S. 44(c) FIRS Act; S. 95(a)(iii) and 97 of CITA; Ss. 55(1)(a)(iii) and 58 of PPTA

The main ingredient for this offence is in establishing that a false return has been made. How so in light of direct remittances? Offence to be prosecuted with the sanction of the Service.

21. A Tax Officer or Agent’s act of defrauding any person, embezzling money or using his position to deal wrongfully with the Board.


S. 44(d) FIRS Act; S. 95(a)(iv) and 97 of CITA; Ss. 55(1)(a)(iv) and 58 of PPTA

The main ingredient for this offence is in establishing: fraud, embezzlement and wrong conduct. Note the lumping up in the Section. Offence to be prosecuted with the sanction of the Service.

22. The stealing or misuse of the documents of the Service.


S. 44(e) FIRS Act;

The main ingredient for this offence is in establishing stealing or the misuse of the documents of the Service.

23. Compromising on the assessment or collection any tax.


S. 44(f) FIRS Act;

The main ingredient for this offence is in establishing the act of compromise in either assessment or collection of taxes.

24. Committing an offence under the FIRS Act while armed with an offensive weapon.

Maximum 5 years imprisonment.

S. 45(1) FIRS Act;

The main ingredient for the offence is in establishing that the accused was armed with an offensive weapon.

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25. Causing injury to a Tax Officer or other authorised officer while armed with an offensive weapon.

Maximum 10 years imprisonment.

S. 45(2) FIRS Act;

The main ingredient for the offence is in establishing that an injury was occasioned to a Tax Officer or other authorised officer by an offensive weapon in possession of and controlled by the accused.

26. Impersonating a Tax Officer or other authorised officer for the purpose of entering any place or doing anything,

Fine of a maximum N200,000 or imprisonment of a maximum 3years

S. 46 FIRS Act;

The main ingredient for the offence is in establishing that an act of impersonation had been carried out.

27. The refusal by a principal officer or representative of a company on whom a search warrant is served, to cooperate with authorised persons or in abusing, physically assaulting or similarly misbehaving towards the authorised person.

N10,000 fine or a minimum 6months imprisonment, or both.

S. 64(1)(b)(iii) of CITA

The main ingredient for this offence is in establishing the acts that will constitute “refusal to cooperate”, “abuse”, “physical assault” or similar behaviours.

28. Failure of a company to, without lawful justification or excuse, pay CIT within one month of due date.

N20,000 fine. Ss. 85(2) and 92(1) of CITA

It is for the prosecution to prove that the Company had failed to pay the income tax within one moth of the due date. The existence of a lawful justification or excuse is for the Defence. Take note of what will constitute “due date”.

29. Failure of a Person10 to furnish a statement or information or keep required records for CIT purposes.

Fines of N20,000 + N2,000 for each day the default continues. 6 month imprisonment

S. 92(1) of CITA The main ingredient of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or the

10 Unless otherwise expressed as “Natural Person”, the expression “Person” shall refer to both a “Company” and or a “Natural Person”

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for failure to pay the fines.

records that needs be kept is vital for a successful proof of the offence.

30. Failure to comply with the requirements of a notice served under CITA.

Fines of N20,000 + N2,000 for each day the default continues. 6 month imprisonment for failure to pay the fines.

Ss. 92(2)(a), 92(1) and 92(4) of CITA

The main ingredients of the offence is in the act or omission, Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence.

31. Failure to, without sufficient cause, attend to or answer a notice, summons or lawful questions served under CITA

Fines of N20,000 + N2,000 for each day the default continues. 6 month imprisonment for failure to pay the fines.

Ss. 92(2)(a) and 92(1) of CITA

The main ingredients of the offence is in the act or omission, Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence.

32. The intentional making of false statements or representations by a Natural Person, whether or not for the purpose of obtaining any deduction, set-off, relief or repayment of CIT.

N1,000 fine or 5 years imprisonment; or both.

S. 94(1) and 97 of CITA

The main ingredient for this offence is in proving intention or what CITA states as “knowingly make”. Offence to be prosecuted with the sanction of the Board.

33. A Natural Person’s aiding, abetting, assisting, counselling, inciting or inducing of another to make, deliver, keep or prepare false returns, statements, accounts or particulars for CIT purposes.


S. 94(1)(b)(i)(ii) and 97 of CITA

The main ingredient for this offence is in proving the acts that will constitute assisting, counselling, inciting or inducing. Offence to be prosecuted with the sanction of the Board.

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34. A Natural Person’s aiding, abetting, assisting, counselling, inciting or inducing of another to unlawfully, refuse or neglect to pay CIT.


S. 94(1)(b)(iii) and 97 of CITA

The main ingredient for this offence is in proving the acts that will constitute assisting, counselling, inciting or inducing. Offence to be prosecuted with the sanction of the Board.

35. Collection or the attempt to collect CIT by an unauthorised person.

N600 fine or 3 years imprisonment; or both.

S. 95(b) and 97 of CITA

The main ingredient for this offence is in establishing the collection or acts of attempt at collection. Note the significant difference in the fine compared with PITA. Offence to be prosecuted with the sanction of the Board.

36. Failure of an employer to file a return with the RTA on the emoluments paid to its employees not later than January 31 of every year.

N50,000 fine for individuals; N500,000 for corporate bodies.

S. 81 of PITA The main ingredient of the offence is in the non-compliance with the requirement for filing the return,

37. Giving incorrect information for the purpose of obtaining a tax clearance certificate (TCC).

N50,000 fine + twice the tax payable or 3 years imprisonment; or both.

S. 85(7) of PITA The major ingredient of the offence is in the act that constitutes the offence,

38. Obtaining TCC through misrepresentation, forgery or falsification

N50,000 + twice the tax payable or 3 years imprisonment; or both.

S. 85(7) of PITA The major ingredient of the offence is in the act that constitutes the offence.

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39. Failure of any Person in a Ministry, Department or Agency of Government or commercial bank to, in required circumstances, demand for the TCC of persons it has dealings with and verify same with the RTA.

N5,000,000 fine plus twice the tax payable or 3 years imprisonment; or both.

S. 85(1),(2) and (9)of PITA

The major ingredient of the offence is in the act that constitutes the offence.

40. Failure of a Person to furnish a statement or information or keep required records for PIT purposes.

Fine of N5,000 + N100 for each day the default continues. 6 months imprisonment for failure to pay the fine.

S. 94(1) and 99 of PITA

The main ingredient of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence. Offence to be prosecuted with the sanction of the RTA.

41. Failure to comply with the requirements of a notice served under PITA.


Ss. 94(2)(a), 94(1), 94(4) and 99 of PITA

The main ingredients of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence. Offence to be prosecuted with the sanction of the RTA.

42. Failure to, without sufficient cause, attend to or answer a notice, summons or lawful questions served under PITA


Ss. 94(2)(a), 94(1) and 99 of PITA

The main ingredients of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence.

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Offence to be prosecuted with the sanction of the RTA.

43. Without reasonable cause, making incorrect returns by omitting or understating any income liable to tax under PITA.

Fine: N20,000 + twice the value of tax undercharged or may have been undercharged.

S. 95(1)(a) and 99 of PITA

The main ingredient for this offence is the absence of a reasonable basis for committing the act. It is logical that proof that there was a reasonable basis should be on the defence. Offence to be prosecuted with the sanction of the RTA and within 6 years of its commission.

44. Without reasonable cause, giving incorrect information in relation to any matter affecting the tax liability of a taxable person.

Fine: N20,000 + twice the value of tax undercharged or may have been undercharged.

S. 95(1)(b) and 99 of PITA

The main ingredient for this offence is the absence of a reasonable basis for committing the act. It is logical that proof that there was a reasonable basis should be on the defence. Offence to be prosecuted with the sanction of the RTA and within 6 years of its commission.

45. The intentional making of false statements or representations, whether or not for the purpose of obtaining any deduction, set-off, relief or repayment of PIT.

Fine of: N50,000 for individuals, N500,000 for corporate bodies; or maximum 6 months imprisonment. Where offence is committed in respect of a year of assessment: N10,000 fine or 3 times the tax chargeable for that

S. 96(1)(a) and 99 of PITA

The main ingredient for this offence is in proving intention or what CITA states as “knowingly make”. Offence to be prosecuted with the sanction of the RTA.

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year; whichever is greater.

46. The aiding, abetting, assisting, counselling, inciting or inducing of another to make, deliver, keep or prepare false returns, statements, accounts or particulars for PIT purposes.

Fine of: N50,000 for individuals, N500,000 for corporate bodies; or maximum 6 months imprisonment. Where offence is committed in respect of a year of assessment: N10,000 fine or 3 times the tax chargeable for that year; whichever is greater.

S. 96(1)(b)(i)(ii) and 99 of PITA

The main ingredient for this offence is in proving the acts that will constitute assisting, counselling, inciting or inducing. Offence to be prosecuted with the sanction of the RTA.

47. The aiding, abetting, assisting, counselling, inciting or inducing of another to unlawfully, refuse or neglect to pay PIT.

Fine of: N50,000 for individuals, N500,000 for corporate bodies; or maximum 6 months imprisonment. Where offence is committed in respect of a year of assessment: N10,000 fine or 3 times the tax chargeable for that year; whichever is greater.

S. 94(1)(b)(iii) and 99 of PITA


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48. A Tax Officer or Tax Office Agent’s demand from a person an amount in excess of the authorised PIT assessment.


S. 97(a)(i) and 99 of PITA

The main ingredient for this offence is in establishing that a demand has been made. Note the qualifier in “excess of the authorised assessment of the tax”. Also note the significant difference in the fine compared with CITA. Offence to be prosecuted with the sanction of the RTA.

49. The withholding by a Tax Officer or Tax Office Agent of any PIT collected, for his own use.


S. 97(a)(ii) and 99 of PITA

The main ingredient for this offence is in establishing that part of the amount paid as tax has been withheld. How so in light of direct remittances? Note the significant difference in the fine compared with CITA. Offence to be prosecuted with the sanction of the RTA.

50. A Tax Officer or Tax Office Agent’s rendering of false returns (whether in writing or orally), of the amount of PIT collected or received by him.


S. 97(a)(iii) and 99 of PITA

The main ingredient for this offence is in establishing that a false return has been made. Offence to be prosecuted with the sanction of the RTA.

51. A Tax Officer or Tax Office Agent’s act in defrauding any person, embezzling money or uses his position deal wrongfully with the RTA.


S. 97(a)(iv) and 99 of PITA

The main ingredient for this offence is in establishing: fraud, embezzlement and wrong conduct.

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Note the lumping up in the Section. Offence to be prosecuted with the sanction of the RTA.

52. Collection or the attempt to collect PIT by an unauthorised person.


S. 97(b) and 99 of PITA

The main ingredient for this offence is in establishing the collection or acts of attempt at collection. Offence to be prosecuted with the sanction of the RTA.

53. Wilfully obstructing a Tax Collector in the performance of his duties by neglecting or refusing to give information required in the exercise of the power of distrain.


Ss. 105(a) and 94(1) PITA

The main ingredients of the offence is in establishing that the obstruction was committed intentionally. Offence to be prosecuted with the sanction of the RTA.

54. Obstructing or wilfully misleading or attempt to mislead a Tax Collector in the performance of his duties.


Ss. 105(b) and 94(1) PITA

The main ingredients of the offence is in establishing that the act of misleading or attempt to so do was intentional. Offence to be prosecuted with the sanction of the RTA.

55. Failure of a Person to furnish a statement or information or keep required records for Petroleum Profits Tax (“PPT”) purposes.

Fine of N10,000 + N2,000 for each day the default continues. 6 months imprisonment for failure to pay the fine.

S. 51(1) of PPTA The main ingredient of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or the records that needs be kept is vital for a successful proof of the offence.

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56. The communication or attempt to communicate, by a Person having possession of or control over documents or information relating to tax, petroleum operations or the amount of chargeable oil won by a company of information contained therein, to an unauthorised person or for a purpose other than for income tax matters.

Fine of N10,000. Ss. 5, 51(1) and 58 of PPTA

The main ingredient of the offence is in the act or omission. Essential are evidence that:

1. the accused has possession of or control of the communication; and

2. the communication made or attempted to be made was to an unauthorised person and not in respect of income tax matters.

Offence to be prosecuted with the sanction of the Board.

57. Failure to comply with the requirements of a notice served under the PPTA.


S. 51(2)(a) of PPTA


58. Failure to prepare and deliver accounts, statements and particulars of its petroleum operations and tax, including: its estimated adjusted/assessable profit or loss, estimated chargeable profits, estimated tax, capital and other allowances and capital allowances carried forward.


Ss. 30 and 51(2)(b) of PPTA


59. Failure to, without sufficient cause, attend to or answer a notice, summons or lawful questions served under PPTA

Fine of N10,000 + N2,000 for each day the default continues. 6 months imprisonment

S. 51(2)(c) of PPTA

The main ingredients of the offence is in the act or omission. Evidence of the Tax Authority’s formal request for the statement, information or

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for failure to pay the fine.

the records that needs be kept is vital for a successful proof of the offence.

60. Failure to submit returns within the prescribed time or such time as may be extended by the Board.


Ss. 29, 30, 34 and 51(2)(d) of PPTA

The main ingredients of the offence is the act or omission.

61. Making or causing to be made, without reasonable excuse, incorrect accounts in respect of accounts required to be made under the PPTA.

N1,000 + twice the value of tax undercharged or may have been undercharged, or 6 months imprisonment; or both.

Ss. 52(1)(a) and 58 of PPTA

The main ingredient for this offence is the absence of a reasonable basis for committing the act. It is logical that proof that there was a reasonable basis should be on the defence. Offence to be prosecuted with the sanction of the Board.

62. Preparing or causing to be prepared, without reasonable excuse, incorrect Capital Allowance Schedules or overstating Royalties or omitting or understating amounts repaid, refunded, waived or released.

N1,000 + twice the value of tax undercharged or may have been undercharged, or 6 months imprisonment; or both.

Ss. 52(1)(b), 30 and 58 of PPTA

The main ingredient for this offence is the absence of a reasonable basis for committing the act. It is logical that proof that there was a reasonable basis should be on the defence. Offence to be prosecuted with the sanction of the Board.

63. Giving or causing to be given, without reasonable excuse, incorrect information in relation to any matter affecting his tax liability.

N1,000 + twice the value of tax undercharged or may have been undercharged, or 6

Ss. 52(1)(c) and 58 of PPTA

The main ingredient for this offence is the absence of a reasonable basis for committing the act. It is logical that proof that there was a reasonable basis should be on the defence.

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months imprisonment; or both.

Offence to be prosecuted with the sanction of the Board.

64. The intentional making of false statements or representations in any return, account or particulars relating to tax or forgery or fraud in respect of tax payment, for the purpose of obtaining any deduction, rebate, reduction or repayment of PPT.

N1,000 + thrice the value of the tax liability, or 6 months imprisonment; or both.

S. 53(1)(a) and 58 of PPTA

The main ingredient for this offence is in proving intention or what CITA states as “knowingly makes”. Offence to be prosecuted with the sanction of the Board.

65. The aiding, abetting, assisting, counselling, inciting or inducing of another to make, deliver, keep or prepare false returns, statements, accounts or particulars for PPT purposes.


S. 53(1)(b)(i)(ii) and 58 of PPTA


66. The aiding, abetting, assisting, counselling, inciting or inducing of another to unlawfully, refuse or neglect to pay PPT.


S. 53(1)(b)(iii) and 58 of PPTA


67. Collection or the attempt to collect PPT by an unauthorised person.

N600 fine or 3 years imprisonment; or both.

Ss. 55(1)(b) and 58 of PPTA

The main ingredient for this offence is in establishing that a demand has been made. Note the significant difference in the fine compared with PITA. Offence to be prosecuted with the sanction of the Board.

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68. Production, furnishing, sending or making use, for the purpose of the VAT Act, a document which is false in any material particular.

Fine of twice the amount under-declared

S. 25(a) of VAT Act.

The main ingredient of the offence is in establishing the falsehood of any document made available to the Board for VAT purposes. Amount of what?

69. Making false statements or information to the Board.

Fine of twice the amount under-declared

S. 25(b) of VAT Act.

The main ingredient of the offence is in establishing the falsehood of any information made available to the Board for VAT purposes. Amount of what?

70. Participating in or taking steps to evade VAT

Fine of N30,000 or twice the amount of VAT being evaded, whichever is greater; or imprisonment for a maximum 3 years.

S. 26 of VAT Act. The main ingredient of the offence is in establishing the varied acts that will constitute evasion or attempts at evasion.

71. Failure to issue tax invoice for goods sold or services rendered.

Fine of 50% of the cost of goods sold or services rendered.

S. 29 of VAT Act The main ingredient for the offence is in establishing the act of non-compliance.

72. Resisting, hindering, obstruction or attempting to resist or hinder an authorised officer acting pursuant to Board’s power of inspection.

Fine of N10,000 or 6months imprisonment; or both

Ss. 30(a) and 39 of VAT Act

The main ingredient for the offence is in establishing the acts of resisting, hindering, obstruction or attempting to resist or hinder an authorised officer.

73. Failure to comply fully comply with any requirement made pursuant to Board’s power of inspection.


Ss. 30(b) and 39 of VAT Act

The main ingredient for the offence is in establishing the act of non-compliance.

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74. Making any false or incomplete statement in response to a requirement made in respect of the determination of the value of taxable goods and services.


Ss. 30(c) and 5 of VAT Act

The main ingredient for the offence is in establishing the falsehood or incompleteness of any statement provided.

75. Procuring or attempting to procure any person to:

a. resist, hinder, obstruct or attempt to resist or hinder an authorised officer acting pursuant to Board’s power of inspection; or

b. not comply with any requirement made pursuant to Board’s power of inspection; or

c. make any false or incomplete statement in response to a requirement made in respect of the determination of the value of taxable goods and services.


Ss. 30(d) 39 and 5 of VAT Act

The main ingredient for the offence is in establishing the acts of such counselling or incitement.

76. The issuance of tax invoices by unregistered or other unauthorised persons


S. 31of VAT Act The main ingredient for the offence is in establishing that a tax invoice was issued by an unauthorised person.

77. Failure to register under the VAT Act. Fine of N5,000. Business premises to be sealed up where there is still no registration after a month.

S. 32 of VAT Act The main ingredient for the offence is in establishing the act of non-registration.

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78. Aiding and abetting the commission of any offence under the VAT Act.

Fine of N50,000 or 5 years imprisonment.

S. 36(1) of VAT Act

The main ingredient for the offence is in establishing the acts of aiding and abetting.

79. Conducts that involve the commission of any offence under the VAT Act, whether or not the particulars of the offence(s) are known.

Fine of N10,000 or 4 times the amount of tax that was or intended to be evaded by the conduct, whichever is greater; or to imprisonment of a maximum 6 months; or to both.

S. 36(2) of VAT Act

The scope of what will constitute an offence under this provision is largely unrestricted.

80. Obtaining a TCC or other Tax registration, licence or certificate by false pretence.

1 year imprisonment Ss. 425 and 418 of the Criminal Code Act

The major ingredient of the offence is in establishing “false pretence”. False pretence is any representation of facts made by words, writing, or conduct which the maker knows not to be true or does not believe in its truth.

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PART 3: A Short Discourse on Evidentiary Rules

An excellent knowledge of the Nigerian law of evidence is vital to successful prosecution of tax

crimes, again, similar to other crimes. Currently the major source of evidentiary rules in Nigeria

is the Evidence Act, 2011 (“Evidence Act”). We shall summarily run through some of the rules

that are most vital for the success of the prosecution in a charge or information bordering on

tax crimes:

1. That a tax crime has been committed by the accused, must be established by the

prosecution, by proving all the acts, omissions or intentions that constitute the crime. That

the Prosecution alleges the commission of an offence places the Burden of Proof that the

offence was committed on it.11

2. The Standard of Proof for the Prosecution is “proof beyond reasonable doubt”;12 not “proof beyond any shadow of doubt”13

3. It is however for the accused to prove the existence of any fact which brings his case

outside the ambit of the crime (as legally defined).14 The Burden of Proof that there is reasonable doubt in the case of the Prosecution is on the Accused; the Standard for this proof is “balance of probabilities”15

4. Any evidence provided by the prosecution which establishes the existence of any fact

which brings the accused’s case outside the ambit of the crime is admissible in favour of

the accused.16

5. Evidence shall only be given of relevant facts,17 provided they are not remote in which

case, a court can exclude such.

6. Relevant facts are facts in issue, facts connected with the facts in issue, or facts that cast

doubt on the existence of facts in issue.18 It can be rightly said that the central theme of

the Evidence Act is an attempt at providing as many instances of relevant facts as possible.

7. For our purpose “Facts in issue” will simply refer to facts that need to be proved or

disproved to establish or defend a criminal allegation.19

8. Speaking of proof, always take note and in appropriate case make the best use of the

rules on ‘presumptions’ (including estoppels)20 – that is: (i) when facts “may” or “shall” be

presumed; and (ii) when one fact is conclusive proof of another. While the former category

11 See Sections 135 and 139(3)(b) of the Evidence Act. 12 Section 137 of the Evidence Act 13 Aiguorewahian & Anor. v. The State (2004) 1 SCNJ 56 14 See Section 139(1) of the Evidence Act. 15 Section 137 of the Evidence Act 16 See Section 139(2) of the Evidence Act. 17 See Section 1 of the Evidence Act. 18 See Sections 4 to 13 of the Evidence Act. 19 See Section 2 of the Evidence Act on the definition of “facts in issue” 20 See generally Sections 145 to 174 of the Evidence Act.

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exists to slightly tilt the burden of proof and not to remove it; the latter category which is

rare in criminal cases, absolves the burden of proving the second fact.

9. With the exception of confessions made either on the threat or use of torture, inhuman or

degrading treatment or other forms of violence,21 unlawfully obtained evidence are

generally admissible unless the court decides otherwise. The test for such decision being

whether the manner of obtaining the evidence out-weighs the value of the evidence.22

10. Admissions are statements23 or conducts from which you one can draw inferences (not

conclusions) on the existence or otherwise of relevant facts. They are generally used in

proof against the maker to diminish the credibility of any contrary statement or conduct.

The maker may also use them in proof of his case in limited circumstances.24

11. Confessions are admissions made by a person charged with a crime. They are generally

admissible against the maker only on the condition that they were made voluntarily.

Where challenged by the accused or the Court, the burden lies on the prosecution to prove

the voluntariness of the confession. Confessions made either on the threat or use of toture,

inhuman or degrading treatment or other forms of violence or by improper compulsion in

a previous suit, are involuntarily made. Confessions obtained by deception on the accused

or otherwise given by the accused in an ignorant or drunken state are admissible.25

12. Though admissible, statements (including computer-generated statements) that are largely

inaccurate due to time lag or the improper interests of the maker, will carry little or no

weight on the scale of justice.26

13. In a judicial proceeding, a person who gives account of statements not made by him or of

inadmissible documents is said to be giving “hearsay” evidence.27 Hearsay evidence is

generally inadmissible except sanctioned by the Evidence Act.28 It is extremely important

that a Prosecutor be versed in the knowledge of admissible hearsay evidence. An attempt

has been made below to summarize the relevant ones, that is, evidence of (relevant)

statements made:

a. by a dead person including that of the cause of his death;29

21 See no. 9 below. 22 See Sections 14 and 15 of the Evidence Act. 232323 Please note that statements could be oral or documentary. Unless otherwise defined in the rest of this text, any use of the expression “statement”, should be understood as referring to either oral or documentary statements. 24 See Sections 20 to 27 of the Evidence Act. 25 See Sections 28 to 32 of the Evidence Act. 26 See Section 34 of the Evidence Act. 27 See Sections 37 and 126 of the Evidence Act. 28 See Section 38 of the Evidence Act. 29 See Sections 39(a) and 40 of the Evidence Act

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b. by a missing person or who may be unable to attend the proceeding without unreasonable delay and cost;30

c. by a person who is incapable of giving evidence;31

d. in the ordinary course of business or in the discharge of a professional duty;32

e. without improper motives but against his own pecuniary or other legal interest,

by a person who has peculiar means of such knowledge;33

f. before the occurrence of the dispute, by a knowledgeable person as to his opinion on the existence of any public right, custom or matter of a general interest;34

g. in previous judicial proceedings (or before a lawful authority) between same

parties on similar issues and the adverse party had an opportunity to cross-examine the maker who is otherwise unable to attend the present proceedings;35

h. in the absence of any objection by the accused or the court, by the investigating police officer in writing and signed by him;36

14. The opinion of a person on a relevant fact is generally inadmissible, except the opinion is

that of: 37

a. an expert and in relation to facts bordering on:

i. foreign law;

ii. customary law or customs;

iii. science or art; and

iv. identity of hand-writing or finger impressions.

b. a person who has peculiar knowledge or the opportunity of knowing or being

acquainted with:

i. a particular customary law or custom;

ii. the handwriting or signature of a particular person;

iii. the usage and tenets of a group of people or family;

iv. the constitution and government of any religious or charitable foundation;

v. the meaning of words used in a particular place or by a particular class

of persons.

vi. the existence or otherwise of a family relationship.

30See Section 39(b) and (d) of the Evidence Act. 31 See Section 39(c) of the Evidence Act. 32 See Section 41 of the Evidence Act. 33 See Section 42 of the Evidence Act. 34 See Section 43 of the Evidence Act. 35 See Section 46 of the Evidence Act. 36 See Section 49 of the Evidence Act. 37 See generally, Sections 67 to 76 of the Evidence Act.

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15. Evidence of the good character of an accused is admissible, whereas evidence of his bad

character is inadmissible except the accused’s bad character is a fact in issue or evidence

of his good character has been led.38

16. Documentary evidence is at the heart of successful tax litigation. The ability of the

Prosecutor to successfully present the Court with all the documentary evidence required to

establish a tax crime is arguably one of the highest hurdle to scale in successful tax

litigation. The rules on documentary evidence are a bit technical particularly for the

‘proving’ party and have naturally become the stronghold for the defence.

17. Documents are either public or private. Private documents are documents which are not

Public Documents. Public documents are essentially documents that either proceed from or

are in the custody of any Government. Accordingly, private documents that are in the

custody of Government are Public Documents.39

18. All relevant documents (including computer-generated documents) are admissible in their

original (primary) or other (secondary) form.40 While the first rule is that original document

must be provided as proof of it and its content, same documents or information contained

therein will only be admissible in other prescribed (secondary) forms, if proper steps have

been taken and reasonable explanations provided on the reason for the unavailability of

the primary form of the document. One of such proper steps is that a ‘notice to produce’

has been duly served on a party (or his legal counsel) who is alleged to be in possession

or control of the primary version.41

19. Witnesses could also be key to the success of a case. All persons are competent to testify

unless the Court rules otherwise on grounds of age, sickness or similar grounds. What is

relevant is not the number of witnesses but the quality of their testimony.42

20. An accused can only, at his own election, testify in his case. He cannot be compelled to do

so.43

21. Other than the accused who elects to testify, a Witness is not bound to answer any question

or produce any document which by so doing, exposes his or herself or spouse to a criminal

charge or penalty (excluding civil liability).44

38 See generally, Sections 77 to 82 and 180 of the Evidence Act. 39 See generally, Sections 102 and 103 of the Evidence Act. 40 See Sections 83 to 97 of the Evidence Act 41 See Section 97 of the Evidence Act. In practical terms, circumstances where the tax authority will have to serve a notice to produce should be rare in light of the significant powers of a RTA to call for books, returns, accounts and other documents or to search and seize such 42 See Section 200 of the Evidence Act. 43 See Sections 180(a) of the Evidence Act and 36(11) of the 1999 Constitution. 44 See Sections 183 and 184 of the Evidence Act.

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22. Mastery of the skills of examination of Witnesses is a must for Prosecutors. The Prosecutor

should largely focus on establishing his case through his Witnesses both by examination-

in-chief and re-examination. Cross-examination of the Defence Witnesses is not a must.

Do not cross-examine unless: (i) you consider that the answers that you elicit from the

Defence Witness will help your case; or (ii) it is extremely important to discredit the

Defence Witness. The mother of all rules in cross-examination is never to ask a question,

the answer to which you are unsure of; you may just be surprised! As much as possible use

leading questions for your entire cross-examination. Tame the Defence Witness to a “yes”

or “no” answer.

23. There are some communications regarded as privileged such that they shall not be

disclosed unless the privilege is waived by the maker (who is not the Witness). This included

communications made in marriage.45 Generally, a lawyer, his clerk or interpreters cannot

disclose information obtained from a Client except such information is on crimes committed

after the engagement of the lawyer or information arising from an illegal purpose

involving the lawyer and or the Client.46 A Client can also not be compelled to generally

disclose the legal advice he received from his lawyer, unless the Court considers such

necessary.47

24. A Prosecutor cannot be compelled to disclose the source of his information.48

45 See Section 187 of the Evidence Act. 46 See Section 192 of the Evidence Act. 47 See Section 195 of the Evidence Act. 48 See Section 189 of the Evidence Act

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Part 4: Some Practical Insights into Courtroom Successes

The key to success in the Courtroom largely lies outside the Courtroom but in the preparations

towards the Courtroom. Starting with the tax investigation process, which in any event should be

a venture with the objective of collating evidences, to preparing the case to be submitted to the

Court, the Prosecutor cannot afford to be less careful than a surgeon in the assembling and

presenting of every detail required for a conviction. This Part of the discuss presents nuggets of

habits, which if well formed, will aid the Prosecutor in having a chest filled with the mementoes

of convicted tax criminals.

1. Always work as and in a team. The oft complexity of tax crimes will require that each

member of both the tax investigation and prosecution sub-teams are looking at

different (yet complementing) aspects of the case. Please note that a team is not a

group of people; but rather a group of people with a common objective and who for

the sake of the common objective perform different yet complementing activities. In a

team “activities” are always sacrificed on the altar of the “common objective”.

2. At least two sub-teams, that is (i) the tax investigation sub-team; and (ii) the tax

prosecution sub-team, which should (it is recommended) be centrally coordinated by

the lead Prosecutor, be available for each tax case which a decision has been made

to be investigated and or prosecuted.

3. It is highly recommended that the investigation and probable prosecution functions of

a tax case be “projectized”. For this purpose, I will refer to all the work involved in the

entire tax investigation and prosecution process as “Work”.

a. Properly initiate or consciously decide how Work should be initiated. Is a formal report required, for example, from the Tax Audit Department or other Government Agency?

b. Plan for how Work will be executed. Be SMART. Set out with the scope of the Work firmly understood by the team.

c. Execute the Work according to the plan.

d. Be able to monitor and control the process for the execution of the work such

that, where appropriate, the Work plan can be revised and thereafter the Work should be executed according to the revised Work plan

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e. Always close out each Work with a final Report. The final outcome will not always

be convictions; but even in the failure of a obtaining a conviction, there are

lessons to be learned. Document this and find a way of sharing the knowledge

with the organisation. Failure does not hurt as bad as avoidable failures.

f. Money is also a scarce resource for Government. Work within a budget. Tax investigation and prosecution comes with their financial costs (aside from the free filing cost). Experts and other knowledgeable witnesses or advisers may often have to be paid for their time. Trips have to be made

g. Time is expensive. Set out realistic time to completion or schedule for each and all functions.

h. Have a very efficient semi-formal process of communication between team members. A more formal process of communication can be maintained with other stakeholders, organizational bosses, the media etc.

4. An excellent tax investigation process (from the commencement of the process to the

conclusion of the final investigation report) is the foundation of desirable Courtroom

outcomes. It is the tax investigation report that determines whether or not a tax crime

should be prosecuted.

5. The Prosecutor should be a central part (if not the leader) of the tax investigation team.

He knows what the Court requires and it is he who sees and knows what it is that he is

looking for (apologies for the winding expression).

6. Even after the instruction/preferment of the tax crime case, the tax investigation sub-

team should still be on a standby mode to assist with the review (or further investigation)

of any new and un-envisaged evidence provided by the defense. Due to the time-

bound nature of the judicial process, the tax investigation sub-team should be nimble

enough to get the investigation process any outcome to the prosecution sub-team

before the prosecution processes proceeds to a largely irreversible stage. This way,

the prosecution sub-team is able to rightly amend or repair its case, if need be and if

it may in accordance with the criminal procedure or other applicable rules.

7. There is no substitute for hard (spelt “smart”) work in the ‘science’ of litigation.

Unfortunately, this is a virtue that is fast disappearing in the Nigerian judicial

landscape. Starting from the charge sheet or information to be preferred and filed in

Court to the final submissions (written and or oral) to be filed and or made, the

Prosecutor must be diligent enough to pay attention to every detail of the case.

8. The “copy and paste” method of work (in the advent of most professionals having to

personally do their type-settings) should be highly discouraged. Even if similar texts

have to be copied and pasted, the prosecution sub-team, prior to filing any process in

Court, should have the discipline to “all” read such process at least two times over, to

ensure against all of context, typographical or syntax errors. Well prepared and

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presented paper work, to an extent, demonstrates the tidiness of the mind(s) of its

authors.

9. “It is necessary to prepare your case by taking a general and specific view of it so

that you have clear in your mind not only what you have to prove or disprove, but also

the way in which you are going to do it.

“It is essential for you to have a thorough knowledge of the law of evidence and

procedure, otherwise you will be handicapped at every turn by uncertainty as to

whether a piece of evidence is admissible, whether it has to be proved by oral

evidence, whether, if it is contained in a document, it is necessary to call the maker of

it and so forth. Much of this knowledge should and will become almost instinctive, but it

is, of course, necessary to have a thorough working knowledge of even the more

unusual points of evidence and procedure. The reason is that this is the only branch of

the law in which there is often no opportunity to research a point, because it comes up

unexpectedly and calls for an instant response. Take as an obvious example, an issue

as to whether a piece of evidence is or is not hearsay; you have to object to it as it is

about to be led. You must be able to recognize it immediately as hearsay and to

formulate your objection…”49

10. That the Prosecutor must have the keen presence of mind in the Courtroom is no

understatement or gain-saying; it is vital for success. Great attention must be paid to

both the nuances or other emotional out-plays of the Judge most importantly and the

Defence secondarily. The Prosecutor must be sensitive enough to know when he is losing

or about losing the interest of the judge; he must be intelligent enough to quickly take

hints provided by the Bench and make amends where necessary. A Prosecutor with a

wandering mind cannot afford these luxuries.

11. A successful Prosecutor must set out to win the war (the conviction) and not every battle

(the relatively inconsequential technical arguments) in the Courtroom. A good sense of

logic and appreciation of the relevant parts of the case are essential. It allows the

Prosecutor focus on and work at the big picture rather than the oft time-consuming and

relatively inconsequential technical arguments the Defence will always throw-up. The

logic of the case lies in: (i) what needs to be proved; (ii) any other law or facts of the

case that matters to the Judge.

12. To the extent that tax cases often come with a large dose of documentary evidence,

the Prosecutor must devise a means of presenting these evidence to the Court in a

manner that is quite easy to understand and follow. The due pagination of files and

their contents cannot be overstated. Using bookmarkers or page dividers to

appropriately segment an avalanche of papers will prove a wise move.

49 Judge Michael Hyam: “Advocacy Skills” (1990; Blackstone Press Limited; Great Britain) p. 10 to 11

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13. The use of ‘well-tutored’ experts to tell the story of the documents or other evidence is

key. Most Judges require the perspective of an expert in order to make up their minds

on complicated evidence. The Prosecutor must use this well in a well ordered

performance – the expert is the orchestra, the Prosecutor - the conductor, and the Judge

- the audience.

14. Just as using an expert can build your case, so also can the Defence’s expert crack the

building. The first rule is to focus on your expert and ensure that a good job has been

done both at examination-in-chief and re-examination. The second is to seriously

decide whether or not to cross-examine the Defence expert. I agree with Judge Hyam50

to the extent that your objective in cross-examining an expert are any of or both of (i)

discrediting him; and or (ii) cause him to admit the existence of alternative credible

interpretation (your expert’s opinion).

© Copyright to this work belongs, without qualification, to Olumide, Bidemi Daniel.

50 Ibid. p. 132

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