JUBRIL v. FRN
CITATION: (2018) LPELR-43993(CA)
In the Court of AppealIn the Lagos Judicial Division
Holden at Lagos
ON MONDAY, 19TH MARCH, 2018Suit No: CA/L/658C/2017
Before Their Lordships:
JUMMAI HANNATU SANKEY Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of AppealJOSEPH EYO EKANEM Justice, Court of Appeal
BetweenROWAYE JUBRIL - Appellant(s)
AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)
RATIO DECIDENDI1. COMPANY LAW - "ALTER EGO": Instances where the doctrine of alter ego and the lifting of the veil of incorporation will apply
"There is no doubt that the law as established since the case of Salomon v Salomon & Company Ltd (1987) AC 22 is that an incorporated Company has a direct and separate legalpersonality from its members and officials. The consequence of recognizing the separate personality of a company is to draw a veil of incorporation over the company. One isgenerally not entitled to go behind or lift the veil for the purpose of attaching liability to its officers. This doctrine of the law has been codified in Sections 37 and 65 of the Companiesand Allied Matters Act. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud, it is in the quest to avoid the normal consequences of thestatute which may result in grave injustice that the Court as occasion demands may have a look behind or pierce the veil of incorporation to see those behind the veil. One of theinstances where the veil of incorporation may be lifted is where the company is liable for fraud. See Alade v Alic (Nig) Ltd (2010) 19 NWLR (Pt. 1226) 111 and Oyebanji v State (2015)LPELR-24751.Section 10(1) of the Advance Fee Fraud and Other Fraud Related Offences Act provides an occasion for the lifting of the veil of incorporation of a company to see and hold criminallyliable the natural person who instigated an offence by a company under the said Act along with the company. See Nwude v FRN (2016) 5 NWLR (Pt 1506) 471. The offences for whichthe appellant and his company stood trial for and were convicted of were under the said Act and so that brought Section 10(1) of the Act on stage.These is also no doubt that the appellant was/is the "alter ego" of the company. By the doctrine of alter ego the Court disregards corporate entity and holds individual responsible foracts knowingly and intentionally done in the name of the corporation. This is done where the individual disregarded the entity of the corporation and made it a mere conduit pipe forthe transaction of his own private business. Liability springs from fraud perpetrated not on the corporation but on third persons dealing with thee corporation. See Oyebanji v Statesupra.As has been demonstrated in the lead judgment, the appellant and his company forged and uttered documents to mislead the PPPRA into paying it the sum of N963,796,119.85 asfuel subsidy for PMS purportedly purchased from Brazil and shipped on board the vessel MT Overseas Limar where no such importation took place. This case therefore presented aclassical instance for the application of the doctrine of alter ego and the lifting of the veil of incorporation."Per EKANEM, J.C.A. (Pp. 187-189, Paras. E-F) - read in context
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8) LP
ELR-43
993(
CA)
2. COMPANY LAW - LIFTING THE VEIL OF INCORPORATION: Whether the veil of incorporation will be lifted where the company is liable for fraud"Limited liability companies are separate legal entities which are enabled to conduct business in their own right, with its legal rights and liabilities distinct from their shareholders orofficers. The locus classicus on the nature of separate legal personality of a limited liability company is the case ofSalomon v Salomon & Co. Ltd (1897) A.C. 22. See also A.I.B. Ltd vLee & Tee Industries Ltd (2003) LPELR-9171(CA); Zest News Ltd v Senator Mahmud Waziri (2003) LPELR-6238(CA). See Section 65 of the Companies and Allied Matters Act, 1990.One of the primary reasons for incorporating a limited liability company is to shield the individual shareholder(s) or its officers from liability.The shareholders or officers are usually not personally liable for the debts and actions of the company simply by reason of being its shareholder or officer. The Courts would howevernot hesitate to set aside this protective veil of a corporation if the corporate form is abused.One established circumstance when the veil of incorporation would be lifted to reveal the persons behind the veil is when the company in being used for an improper purpose, suchas when it is used to commit a fraud or wrong. The law would go behind the veil of incorporation in this circumstance, to expose and apprehend the individual member of thecompany whose act or conduct is criminally reprehensible; Oyebanji v State (2015) LPELR-24751(SC). The lifting of the veil would reveal the individual member or officer of thecompany who would be held accountable. Contributing to the decision in Oyebanji v State (supra), Kekere Ekun, J.S.C said, pages 41 - 42 of the E-Report:"The circumstance in which the "veil of incorporation" of a company may be lifted was succinctly stated in the case of: Alade V. ALIC (Nig) Ltd. &. Anor. (2010) 19 NWLR (Pt.1226)111 @ 130 E-H & 142 C-E where this Court held thus: Per Galadima, JSC at 130 E-H: One of the occasions when the veil of incorporation will be lifted is when the company is liable forfraud as in the instant case. In FDB Financial Services Ltd. V. Adesola (2002) 8 NWLR (Pt.668) 170 at 174, the Court considering the power of a Court to lift the veil of incorporationheld thus: "The consequence of recognizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to gobehind or lift this veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud it is in the quest to avoid the normal consequences of thestatute which may result in grave injustice that the Court as occasion demands have a look behind or pierce the corporate veil." See further Adeyemi V. Lan & Baker (Nig.) Ltd.(2000) 7 NWLR (Pt.663) 33 at 51." Per Muntaka-Coomassie, JSC at I42 C-E "It must be stated unequivocally that this Court, as the last Court of the land, will not allow a party to usehis company as a cover to dupe, cheat and or defraud an innocent citizen who entered into a lawful contract with the company only to be confronted with the defence of thecompany's legal entity as distinct from its directors."The Supreme Court in Mma Inc. v Nma (2012) LPELR-20618(SC), per Galadinma, JSC, at pages 48 - 49 of the E-Report, succinctly related the nature of the company in this manner:"A company is only a juristic person, it can act through an alter ego, either its agents or servants. Evidence of PW1 is given in that capacity. See KATE ENT. LTD. v. DAEWOO NIGERIALTD (1985) 2 NWLR (Pt.5) 116 on what a legal status of a Company is. This Court held in that case that:"4.1.14...... At Common Law such company is a persona ficta and can only act through its agents or servants. See Lennards Carrying Co. v. Asiatic Petroleum Co. Ltd. 1915 AC 705per Viscount Haldane L.C. at pp.713 - 714 and Bolton (Engineering) Co. Ltd. vs. Graham & Sons Ltd. (supra) at p.172 per Denning L. J. who observed that;"A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordancewith directions from the centre. Some of the people inthe company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managerswho represent the directing mind and will of the company, these managers are the state of the mind of the company and are treated by the law as such."Where the director or manager of a company engages in fraudulent activity in the name of the company, the veil of incorporation will certainly be lifted to ascribe liability for thecriminal conduct. If particular statute so prescribes, the identified officer of the company, as well as the company itself shall be held accountable. See Section 10(1) of the AdvanceFee Fraud and Other Related Offences Act, 2006. The Appellant was the Managing Director of the 2nd defendant. His actions revealed that he had acted as the alter ego of the 2nddefendant and indeed on its behalf. The veil of incorporation was therefore rightly lifted to expose and prosecute criminal activity. The Appellant was consequently rightly prosecutedalongside the 2nd defendant. I see no reason to disturb the conclusions of the learned trial Judge in this regard."Per OTISI, J.C.A. (Pp. 167-171, Paras. C-F) - read in context
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8) LP
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3. CRIMINAL LAW AND PROCEDURE - CRIMINAL LIABILITY/RESPONSIBILITY: Whether officers of a company and the company can be jointly charged, prosecuted and convictedfor criminal offences"Learned Senior Counsel has conceded, and thus it is common ground that the Appellant at all times, acted in his capacity as the managing director and alter ego of the 2ndDefendant, Brila Energy. It is also correct that the locus classicus on this is Salomon v Salomon & Company Ltd (1987) AC 22. Therein, the House of Lords, in reversing the decision ofthe Court of Appeal, held that a limited liability company is separate and apart from its members and officers. In addition, Section 65 of the Companies and Allied Matters Act, 1990provides-"Any act of the members in general meeting, the board of directors or of a managing director while carrying on in the usual way the business of the company, shall be treated as theact of the company itself and the company shall be criminally and civilly liable therefore to the same extent as if it were a natural person. Provided that:(a) The company shall not incur civil liability to any person if that person had actual knowledge at the time of the transaction in question that the general meeting, board of directors,as the case may be had no power to act in the matter or had acted in an irregular manner or if, having regard to relationship with the company, he ought to have known of theabsence of such powers or the irregularity.(b) If in fact a business is being carried out by the company, the company shall not escape liability for acts undertaken in connection with that business merely because the businessin question was not among the business authorized by the company's memorandum."It is evident from these provisions that a limited liability company or an incorporated company is a different legal entity from its management. It has a separate and distinct life andexistence. In other words, the officers and members of an incorporated company are covered by the company's veil of incorporation and that veil cannot be lifted for the purpose ofattaching legal responsibility or liability to its officers who are carrying on the usual business of the company. See also Oriebosi v Andy Sam Investment Co. Ltd (2014)LPELR-23607(CA) 23-24; Fairline Pharmaceutical Industries Ltd v Trust Adjusters Nig. Ltd (2012) LPELR 20860(CA) 30; Chartered Brains Ltd v Intercity Bank Plc (2009) LPELR8697(CA) 18-22; Ogbodo v Quality Finance Ltd (2003) 6 NWLR (pt. 815) 147: Erebor V Major & Co. (Nig) Ltd (2000) LPELR-9129(CA) 14.Also, the Black's Law Dictionary 8th Edition at page 89, defines 'alter ego' thus:"A corporation used by an individual in conducting personal business, the result being that a Court may impose liability on the individual by piercing the corporate veil when fraudhas been perpetrated in someone dealing with the corporation."Nonetheless, in-roads have long since been made into this absolute position of the law such that there are exceptions to the rule. For instance, a director or managing director of acompany shall be held liable or responsible when it is alleged and proved that he is a surety or a guarantor to the trade debt of the company. See Cooperative Bank Ltd v Obokhare(1996) 8 NWLR (Pt. 468) 579; & Afribank Nig Ltd v Moslad Enterprises Ltd (2007) LPELR-5126(CA) 19-10, paras G-D, Akaahs, JCA (as he then was).Another exception has also been created by Section 10(1) of the Advance Fee Fraud Act which provides -"Where an offence under the Act has been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary or othersimilar officer of the body corporate, or any person purporting to act in such capacity, he, as well as the body corporate where practicable shall be deemed to be guilty of thatoffence and shall be liable to be proceeded against and punished accordingly."This therefore constitutes an exception to the law that the act of an officer of a company such as a director, manager or the like, shall be treated as the act of the company itself andhe shall be criminally or civilly liable for such acts. It is therefore no surprise that this Court, in the recent case of Nwude v FRN (2015) 5 NWLR (Pt.1505) 471 at 482, when faced withsimilar facts and circumstances, held thus:"Under Section 10 of the Advance Fee Fraud and other Related Offences Act, 1995, where an offence under the Act which has been committed by a body corporate is proved to havebeen committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary, or other similar officer of the body corporate,or any person purporting to act in any such capacity, he, as well as the body corporate, where practicable shall be deemed to have committed that offence and shall be liable to beproceeded against and punished accordingly."The Appellant herein was charged with, among other offences, for the offence of obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and OtherRelated Offences Act No. 14 of 2006. He therefore falls squarely under this exception to the rule in Section 65 of the Companies and Allied Matters Act.In addition, I agree with learned Counsel to the Respondent that the decision of the Supreme Court in Oyebanji v State (2015) LPELR-24751(SC) is firmly applicable to the facts in theinstant Appeal. In that case, the managing director of the company sought to escape liability from an allegation of stealing levelled against him by hiding behind the veil ofincorporation, contending that by receiving monies for the purchase of tyres, tubes and granulated sugar from the complainant to the Police and defaulting on the agreement, itacted for the Company Baminco Nig Ltd, and so could not be held liable for the acts of the company. In upholding the decisions of the trial Court as well as that of the Court ofAppeal, the Supreme Court, per Galadima, JSC held thus at pages 19-21 of the E-Report as follows:"The Courts below rightly disregarded the corporate entity of the Baminco (Nig) Ltd and paid regard to the entities behind the legal facade or "veil" of incorporation in the interest ofjustice... In my respectful view, the veil of incorporation ought to be lifted in the interest of justice and in the circumstances of this case. There can be no better instance when thecorporate veil can be lifted as in this case. The Court will not allow a party to use its company as a cover to dupe, defraud or cheat innocent individual or a company who entered intoa lawful contract with it only to be confronted with defence of the company's legal entity as distinct from its directors. As it has been observed elsewhere, most companies in thiscountry are owned and managed solely by an individual, while registering the members of his family as the shareholders. such companies are nothing but one-man business! Hencethere is the tendency to enter into contract in such company's name and later on turn around to claim that he was not a party to the agreement since the company is a legal entity.See Akinwumi Alade v Alice (Nigeria) Ltd & Anor (2010) 12 SC (Pt. II) 59.This case at hand is a case in which the law should disregard the corporate entity and pay regard to the entities behind the corporate veil. Section 35 of the Criminal Code cap. 38vol. II Laws of Oyo State 2000... the law applicable at the time of trial provides thus... By this provision. the allegation of crime lifts the veil of corporate or voluntary associations andunmasks the face of the suspected criminal to face prosecution. Where the veil is lifted, the law will go behind the corporate entity so as to reach out to the individual member of thecompany whose conduct or act is criminally reprehensible."(Emphasis supplied) In his own contribution to the Judgment, Fabiyi, JSC also stated inter alia thus at pages 25-26 of the E-Report"Let me start my remarks by pointing it out right away that the appellant qualifies as the 'alter ego' of Baminco Nigeria Ltd... 'Alter ego' is said to mean 'second self'. Under thedoctrine of alter ego, [the] Court merely disregards [the] corporate entity and holds [the] individual responsible for [the] act knowingly and intentionally done in the name of thecorporation. Ivy v. Plyler 246 Cal. App. 2d 548. To establish the doctrine, it must be shown that the individual disregarded the entity of the corporation and made it a mere conduitfor the transaction of his own private business. The doctrine simply fastens liability on the individual who uses the corporation merely as an instrumentality in conducting his ownpersonal business. Liability springs from fraud perpetrated not on the corporation but on third persons dealing with the corporation... Perhaps I should further say that the appellantwas the directing mind and/or arrow head of Baminco Nigeria Limited when the role carried out by him is properly considered. The appellant was the human personality behind theactivity of the company...There is no shred of doubt that the fraudulent acts of the appellant called for the lifting of the veil of his company which opened him up for prosecution before the trial Court... Hewas rightly found guilty of stealing by conversion of the stated money." (Emphasis supplied)From the facts of the instant case, it is true that it was the 2nd Defendant, Brila Energy Ltd, who was awarded the permit to import about 13,000 metric tons of Premium Motor Spirit(PMS) by the PPPRA from Napal Petroleum Inc. Panama page 1 of Exhibit P1. The Appellant himself submitted Exhibit 1 to PPPRA supposedly to show that the product, PMS wasimported from Napal Petroleum Inc. Panama and shipped to Nigeria through MT Overseas Limar, as the mother vessel, from the port of loading in Sao Sebastio in Brazil.In addition, the Appellant submitted documents that showed that Saybolt was the company that conducted the inspection of the product on board the mother vessel MT OverseasLimar - pages 26 & 29 of Exhibit P1. He also submitted documents purported to emanate from Inspectorate Marine Services Nigeria Ltd as the inspectors who inspected the mothervessel to ensure that the consignment met the specifications - pages 71, 19, 22 and 27 of Exhibit P1. Also submitted were documents from Port Cargo Experts Ltd to show that itsuperintended the discharge of products from MT Overseas Limar to MT Delphina and MT Delphina to MT Dani 1 at Cotonou - pages 22, 27, 19 and 37 of Exhibit P1.It is therefore these representations made in the bundle of documents attached to the letter submitted to the PPPRA under the hand of the Appellant as the alter ego of Brila EnergyLtd and admitted in evidence as Exhibit P1, that were held by the trial Court to be false representations which tended to show that the company had imported the petroleum product(PMS) from Napal Petroleum Panama in Brazil and shipped it through the mother vessel MT Overseas Limar. The forwarding letter of Exhibit P1 titled "Payment claim for import of13,243.447 MT of PMS under the PSF scheme for 4th Quarter 2010' was signed by the Appellant as the Managing Director/CEO of the company.In addition to the provision of Section 10(1) of the Advance Fee Fraud Act, this Court in the case of Tsalibawa V Habiba (1991) 2 NWLR (Pt. 174) 461, per Ogundere, JCA (as he thenwas) stated thus on the import, significance and consequence of a signature on a document-"It is common knowledge that a person's signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds outhimself out as bound or responsible for the contents of such a document. R v. Kent Justices L.R. 8 Q.B. 305."These documents were submitted by the Appellant to the Federal Government through its agency, the PPPRA, to support his claim for the payment of fuel subsidy to the companywhere he was the alter ego, which was indeed subsequently paid as claimed in the sum of N963, 796, 199.85Furthermore, it is a fact as disclosed by Exhibit 3, the letter from the CAC to the EFCC, that the Appellant was the controlling share-holder, the Managing Director, alter ego and alsodirecting mind of Brila Energy Ltd. After the import licence to import 13, 000 metric tonnes of PMS was awarded to Brila Energy Ltd, the Appellant again approached Enterprise Bank(formerly Spring Bank Plc) for a facility to finance the purchase and importation of the PMS. Thereafter, he furnished the Bank with all the relevant information in respect of theimportation of the PMS, such as the name of the mother vessel, which he gave as MT Heli, and the daughter vessel which he gave as MT Delphina. Sometime later, he changed thename of the mother vessel to MT Panther (also referred to as MT Panta).Thereafter, the Appellant again collated documents and sent them to the Petroleum Product Pricing Regulatory Agency Zonal office, Lagos and submitted the Notice of arrivalinforming of the time when the vessel would arrive. The Appellant submitted these documents on behalf of the 2nd Defendant, which documents were checked and forwarded to thePPPRA Head office in Abuja, which subsequently recommended the payment of the sum of N963, 796, 199.85 to the 2nd Defendant, based on the Appellant's claim submitted toPPPRA and admitted in evidence at the trial Court as Exhibit P1. After this, the Enterprise Bank again received payment into the customer's account. From these actions and morecarried out by the Appellant on behalf of the 2nd Defendant, the Appellant no doubt held himself out as the alter ego of the company. Therefore, where his actions in purporting toimport PMS in line with the import permit issued to the company by PPPRA, and in submitting documentation which he knew to be false representations of how and where the PMSwas sourced and discharged, which directly led to the payment of fuel subsidy to the company, the Appellant left himself wide open to be held responsible for his actions which werefound to have been illegal and/or fraudulent - Section 10(1) of the Advance Fee Fraud Act. The Appellant was therefore rightly prosecuted and along with the 2nd Defendant for thecrimes alleged against the company. It is for these reasons that I resolve issue one in favour of the Respondent."Per SANKEY, J.C.A. (Pp. 16-28, Paras. C-C) - read in context
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4. CRIMINAL LAW AND PROCEDURE - OFFENCE OF FORGERY: Ingredients of the offence of forgery"These documents were held out by the Appellant and Brila Energy Ltd to be true and genuine, and presented to PPPRA to make a false claim for the payment of subsidy, Based onthese false documents, as well as other documents attached to Exhibit P1, subsidy to the tune of over N900, 000.00 was paid to Brila Energy Ltd by PPPRA. Thus, the elements of theoffence of forgery of these documents were undoubtedly proved, see Alake v State (1991) 2 NWLR (pt. 205) 567; Babalola v State (1989) 4 NWLR (Pt. 115) 264 at 277. In the lattercase, the Supreme Court, per Nnaemeka-Agu, JSC, expatiated on the nature of what constitutes forgery as follows:"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 partwith 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 decision, were established by the documents attached tothe Exhibit P1; specifically the two documents purported to have emanated from Saybolt Concremat Brazil and these four documents purported to have been issued in purportedconfirmation that Inspectorate Marine Services Nig. Ltd carried out the inspection of the operation in respect of the ship to ship (STS) transfer from MT Overseas Limar to MTDelphina. Thus, the combined evidence from PW19 (an EFCC operative/investigator), PW17 (the Country Manager of the Saybolt Companies in Nigeria) and now PW5 (therepresentative 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 theinformation 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 theAppellant, it was fraudulently impressed on the documents in issue (because the company itself knew nothing about the operations in question), in order to deceive the FederalGovernment of Nigeria into believing that there had been a trans-shipment of PMS imported from Brazil via the MT Overseas Limar into MT Delphina, as supervised and verified byInspectorate Marine Services. This is the import of the decision of the Supreme Court in Nigeria Air force V Kamaldeen (2007) 7 NWLR (Pt. 1032) 164 at 191, per Musdapher, JSC (ashe then was)"The mere fact that the signatories on the cheque (including the respondent) are the normal persons designated to sign the cheque) does not make it genuine when right from thebeginning there was intent to defraud. It has been held it is a forgery for a registrar of a Court to issue a writ to the effect that an order was made for the sale of a judgment debtor'sproperty when no such order was made. See Etim V The Queen (1964) All NLR 38."See also Emu V State (1980) 2 NCR 297 at 303."Per SANKEY, J.C.A. (Pp. 52-55, Paras. B-A) - read in context
5. CRIMINAL LAW AND PROCEDURE - OFFENCE OF FORGERY: Whether a person must be shown to have personally forged a document before he can be convicted for the offenceof forgery"It has also been argued by the Appellant that no evidence was adduced to prove that he forged the documents with his own hand and that the signatories of the documents werealso not produced. It is the law 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 documentwas false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exist that either the accused forged the document with his ownhand or procured someone to commit the forgery. It is immaterial who actually forged a document so long as an accused person is a party to the forgery. In Agwuna v AG Federation(1995) 5 NWLR (Pt. 396) 418, the Supreme Court held per Iguh, JSC 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 isthat all persons who are participles criminis whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be chargedand convicted with [the] actual commission of the crime." (Emphasis supplied)See also Osondu v FRN (2000) 12 NWLR (pt. 682) 483; & Hassan v Queen (1959) SCNR 520 at 522."Per SANKEY, J.C.A. (Pp. 55-56, Paras. B-B) - read in context
6. CRIMINAL LAW AND PROCEDURE - OFFENCE OF UTTERING: Ingredients of the offence of uttering"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 aspunishment, apply. Thus, in view of the earlier findings of this Court it is now established that the six documents in question, made up of the two documents purported to be fromSaybolt Concremat in Brazil and the four documents purportedly evidencing the inspection operations of the trans-shipment between the vessels, M/T Overseas Limar and M/TDelphina, by Inspectorate Marine Services were forged, most of the ingredients of the offence of uttering of these documents have equally been established. I therefore adopt myfindings under issues three and four above in respect of this issue. Indeed, to establish the offence of uttering, the prosecution must also prove that (a) the document/writing wasfalse; and (b) the false document was knowingly and fraudulently uttered. This question of whether the Appellant knowingly and fraudulently uttered these false documents was alsoanswered under the previous issues in this Judgment.However, no harm will be done in reiterating them. The Criminal Code of Lagos State defines uttering to include - "using or dealing with, and attempting to use and deal with, andattempting to induce any person to use, deal with, or act upon the thing in question..." It is an indisputable fact that the Appellant, as the Managing Director/Chief Executive Officerof Brila Energy Ltd, compiled and submitted the bundle of documents attached to the covering letter written under his hand, (at page 3 of Exhibit P1), for the sole purpose ofclaiming and being paid a subsidy for the importation of PMS from Brazil by the Federal Government of Nigeria. The Respondent adduced evidence through the officers of thefollowing agencies: EFCC, Petroleum Products Pricing Regulatory Agency (PPPRA) and the Debt Management office (DMO) which established that the subsidy calculated and paid tothe Appellant and Brila Energy Ltd was based on the entire documents submitted by the Appellant, inclusive of these six forged documents. From the un-controverted evidencebefore 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 anentitlement for the payment of subsidy for fuel that was not sourced, imported and supplied as claimed in the documents. The Appellant knew that the documents at pages 19, 22,26, 27, 29 and 30 were forged, and yet he deliberately and intentionally presented them to the PPPRA, upon which the subsidy of N963, 796, 199.85k was paid by the FederalGovernment of Nigeria to 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 provedbeyond reasonable doubt."Per SANKEY, J.C.A. (Pp. 59-61, Paras. C-F) - read in context
7. CRIMINAL LAW AND PROCEDURE - SENTENCING: Circumstances under which an appellate Court will not interfere with the sentence imposed by the trial Court"Sentencing may be defined as the judicial determination of a legal sanction to be imposed on a person found guilty of an offence. It means the prescription of a particularpunishment by a Court to someone convicted of a crime. Sentencing generally aims at the protection of the society through the prevention of crime or reform of the offender, whichmay be achieved by the means of elimination, deterrence or reformation/rehabilitation of the offender. The justification is that, imposing the penalty will reduce future incidences ofsuch offences by preventing the offender from re-offending or correcting the offender so that the criminal motivation or inclination is removed; or by discouraging or educating otherpotential offenders. See Usman v State (2015) LPELR-40855(CA) at 40-41, paras D-B.It has been established that an Appeal Court does not alter a sentence on the mere ground that, if the learned Justices of the Court had tried the Appellant, they might have imposeda different sentence. For an Appeal Court to interfere, the sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle. SeeUwakwe VState (1974) 9 SC 25.The factors which guide the Court in the exercise of its jurisdiction to review a sentence include -(a) The gravity of the offence;(b) The prescribed punishment for the offence;(c) The prevalence of a particular of crime in a locality; and(d) The circumstances of the offence to see if there are grounds of mitigating the punishment.The sentencing power of a Judge is predicated on his discretionary powers, which must be seen to have been exercised judicially and judiciously. See Zacheous V State (2015)LPELR-24531(CA) at 49, paras A-E; Isang v State (1996) 9 NWLR (Pt 473) 458; & Igboanugo v State (1992) 3 NWLR (Pt. 228) 176. In most cases, the law fixes an upper limit andleaves a Judge with the power to fix the sentence appropriate within the limit, which may vary from a caution and discharge, a binding over order, a fine or imprisonment, dependingon the Judge's view of the circumstances of the case.However, the Judge is also bound to consider factors such as the gravity or otherwise of the offence, the prevalence of the offence, whether the convict is a first offender, and theprevailing attitude of the populace to the offence. See Zacheous v State (supra); & Onilikwu v COP (1981) 2 NLR 49. Thus where the law prescribes a maximum sentence for anoffence, the Court has a discretion to impose less than the maximum prescribed by taking into consideration extenuating factors such as the age of the convict being a first offender,etc. See Amoshima V State (2011) 14 NWLR (pt. 1268) 530 at 554 per Onnoghen, JSC.The Appellant was convicted for the offence of obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006, Forgerycontrary 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. In respectof the offence of obtaining money by false pretences, the punishment prescribed under the law is conviction to imprisonment for a term of not more than 20 years and not less thanseven years without an option of fine. For the offence of forgery, the Law prescribes 3 years imprisonment; and for Uttering, the Law prescribes 3 years imprisonment.I have stated the offences for which the Appellant was convicted. Before passing sentence, the trial Judge observed as follows:"I have taken into consideration the statement that the Defendants are first time offenders. I have also noted the remorse of the 1st Defendant/Convict as Defence Counsel hassaid."Based on these considerations, a reduced sentence of 10 years out of the prescribed maximum of 20 years and minimum of 7 years, was passed on the Appellant for obtaining thesum of N963, 796.199.85k under false pretences.For the offence case of forgery, Section 467(2) (k) of the Criminal Code Law prescribes a maximum of 3 years imprisonment; while for the offence of uttering, Section 468 of Codealso prescribes a maximum of 3 years imprisonment. The Appellant was charged for six counts of forgery and six counts of uttering. Thus, for each of the six counts of forgery, theprescribed punishment is 3 years; while for each of the six counts of uttering, the prescribed punishment is also 3 years imprisonment. By a simple arithmetical calculation, thecumulative maximum penalty prescribed by the relevant Laws for the six counts of forgery is 18 years; and for the six counts of uttering, it is also 18 years.However, it is apparent that the learned trial Judge, in consideration of the plea for a reduced sentence on the ground that the convict is a first offender, sentenced the Appellant to atotal of 8 years imprisonment (instead of the maximum of 18 years) for the six counts of forgery in counts 2,4,6, 8, 10 and 12; and a total of 8 years imprisonment (instead of 18years) for the six counts of uttering in Counts 3, 5, 7, 9, 11 and 13 of the charge, with an order that the sentences should run concurrency. Hence, it is evident that a minimum of thesentences prescribed by Law was given for each of the 12 count of forgery and uttering.As already stated, in sentencing, the trial Judge has a discretion to exercise, and an appellate Court will not lightly interfere with such exercise unless good reason is shown. I amhowever not persuaded to disturb this sentence since no good reason has been advanced to warrant interference with the learned trial Judge's exercise of discretion which, based onthe meagre materials placed before the trial Court in the allocutus was, in my humble view judicious. I therefore fail to see how the sentence imposed on the Appellant is manifestlyexcessive or wrong in principle, given that the sentence is well within the lower limit prescribed by the various applicable Laws. Before I end, it must be said that the offences forwhich the Appellant has been convicted are grave, especially the offence of Advance Fee Fraud which has resulted in depriving the Federal Republic of Nigeria of close to N1 Billionas an un-earned fuel subsidy paid to Brila Energy Ltd. The unpatriotic actions by oil Dealers and Marketers lead to a depletion of the scarce resources of this country, causing untoldhardship to citizens who are also forced to waste valuable time and resources due to frequent bouts of fuel scarcity, which has the result of affecting the economy of the countrynegatively. This issue of payment of fuel subsidy paid for petroleum products not imported and/or supplied, due to bogus claims has become prevalent in the society and has, nodoubt impacted negatively on our fragile economy.It must be disheartening to all right thinking Nigerians that the rampant, atrocious and egocentric crime has unleashed dire consequences on the integrity and image of the country.This has both short and long term effects on the society and the nation as a whole. Therefore, although the punishment prescribed by law for the crime being imprisonment withoutan option of fine as well as restitution, may appear harsh and draconian, it is hoped that it will deter like-minded persons from embarking on such criminal ventures." Per SANKEY,J.C.A. (Pp. 160-166, Paras. C-D) - read in context
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8. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents"Being computer generated evidence, the next crucial hurdle was whether the said record, Exhibit P7 , complied with the further provisions of Section 84 of the Evidence Act 2011.Exhibit P7 may not be hearsay but it must comply with the provisions of Section 84. The pre-conditions for admissibility of electronically generated evidence is provided for in Section84. In challenging the credibility of Exhibit P7, the Appellant has contended that the Respondent failed to tender a certificate of trustworthiness of the computer used in printing thedocuments in compliance with Section 84(2) and (4). Section 84 provides:(1) In any proceedings, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would beadmissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and the computer in question.(2) The conditions referred to in Subsection (1) of this Section are(a) that the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for thepurposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;(b) that over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind fromwhich the information so contained is derived;(c) that throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operationduring that part of that period was not such as to affect the production of the document or the accuracy of its contents; and(d) that the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities.(3) Where over a period, the function of storing or processing information for the purposes of any activities regularly carried on over that period, as mentioned in Subsection (2) ofthis Section was regularly performed by computers, whether(a) by a combination of computers operating over that period; or(b) by different computers operating in succession over that period; or(c) by different combinations of computers operating in succession over that period; or(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all thecomputers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computershall be construed accordingly.(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificatea. identifying the document containing the statement and describing the manner in which it was produced; orb. giving such particulars of any device involved in the production of that document as may be appropriate for the purpose of showing that the document was produced by acomputer; orc. dealing with any of the matters to which the conditions mentioned in Subsection (2) above relate, and purporting to be signed by a person occupying a responsible position inrelation to the operation of the relevant device or the management of the relevant activities, as the case may be, shall be evidence of the matter stated in the certificate, and for thepurpose of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.(5) For the purposes of this sectiona. information shall be taken to be supplied to a computer if it is supplied to it in any appropriate form and whether it is supplied directly or (with or without human intervention) bymeans of any appropriate equipment;b. where, in the course of activities carried on by any individual or body, information is supplied with a view to its being stored or processed for the purposes of those activities by acomputer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of thoseactivities;c. a document shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriateequipment.The provisions of Section 84 which state conditions for admitting in evidence any electronically generated document, are central in determining the admissibility of a documentemanating from a computer. The main objective of these provisions is to authenticate and validate the reliability of the computer which generated the evidence sought to betendered. It was necessary to prove that a computer was operating properly and was not used improperly before any statement in a document produced by the computer could beadmitted in evidence. Evidence in relation to the use of the computer must therefore be called to establish compliance with the conditions set out in Section 84(2).In Kubor v Dickson(2012) LPELR-9817(SC), the Supreme Court, per Onnoghen, JSC, affirmed that computer-generated evidence or documents which did not comply with the pre-conditions laid down inSection 84(2) were inadmissible. My views expressed in Sylva & Anor v INEC & Ors (Unreported) Appeal No: CA/A/EPT/281/2016 delivered on June 24, 2016, which was affirmed bythe Apex Court in Dickson v Sylva & Ors (2016) LPELR-41257(SC) at page 15 of the E-Report, remain relevant, as follows:"In this digital age when different creations can be achieved electronically, the reason for the requirement of authentication or certification of the gadget or computer used inproducing and processing the electronically generated documents is not farfetched. The party seeking to rely on such evidence must be able to show that the data and informationcontained in the electronically generated document is truly what it claims to be.The pre-conditions for admissibility set down by Section 84 are to establish this fact. The relationship between the computer and the information is crucial. The electronic evidencemust be produced from a computer or gadget that is inherently reliable and has been in operation over the relevant period. There is no doubt that with present and even futuretechnological advances, the pre-conditions attached to admissibility of electronically generated evidence by Section 84 may no longer be sufficient to authenticate the reliability ofelectronic evidence. However, these challenges are not in issue herein. One constant is that a computer or gadget will only reproduce what has been fed into it. The computer orgadget will demonstrate or play what it receives. This is the reason why there is no further need for certification of the computer or gadget to be used to demonstrate or to play analready properly admitted electronically generated evidence, which had complied with the pre-conditions of Section 84."Per OTISI, J.C.A. (Pp. 178-184, Paras. A-B) - read in context
9. EVIDENCE - HEARSAY EVIDENCE: Statements made in the ordinary course of business as an exception to hearsay rule"Section 37(a) and (b) defines what constitutes hearsay, both oral and documentary; while Section 38 expressly states that hearsay evidence is not admissible except as provided inthe Act or any other Act. It is correct as submitted, that Section 125(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.However, there are numerous exceptions to the rule, for instance-(a) Dying declarations under Section 39(a) - Alli V Alesinloye (2000) 4 SC (Pt. 1) 111;(b) Evidence of traditional and communal history of land under Section 43 - Anka V Lokoja (2001) 4 NWLR (Pt.702) 178;(c) Admissibility of documents under Section 83 - Anyaebosi V RT Briscoe (Nig) Ltd (1987) 6 Sc 15;(d) Affidavit evidence under Section 108;(e) Res Gestae under Section 4;(f) Expert opinion under Sections 68-71; etc.In addition, and more relevant to these deliberations, Sections 41 and 51 of the Evidence Act provide as follows"41. A statement is admissible when made by a person in the ordinary counsel of business, and in particular when it consist of any entry or memorandum made by him in books,electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money,goods, securities or property of any kind, or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signedby him.""51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, butsuch statements shall not alone be sufficient evidence to charge any person with liability."By this provision, a Court is permitted by law to admit in evidence records, as was done in the instant case, which records are said to have been meticulously kept in the course ofthe business of a company, and the issues relating thereto are brought before the Court upon an inquiry. In such a case, it is immaterial that the maker of the entries in the recorddoes not testify in such a business concern.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 the company, such anoperation was performed by the company for Brila Energy Ltd in 2010 in respect of the mother vessel MT Overeas Limar sometime in 2010, and whether the company kept a recordof 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 bank) in respectof their day to day activities are business records which any of its officers, and not necessarily the maker, can give evidence of its contents.PW17, the Managing Director of Saybolt Nigeria, explained the process by which the report, Exhibit P7, was procured from its sister company, Saybolt Concremat in Brazil followingthe inquiry from the EFCC in Exhibit 5. The Appellant did not before the trial Court or even before this Court, contest that PW17 is not an employee/principal officer of Saybolt, aDivision of Corelab Nig. What he tried to do instead in his cross-examination of the PW17 was to suggest that Saybolt, a Division of Corelob Nig., had no correlation with SayboltHolland, the head office of Saybolt and Saybolt Brazil, the particular company office in Brazil which the Appellant, by the two documents submitted in Exhibit P1, alleged hadinspected the product on the mother vessel, MT Overseas Limar in 2010. However, PW17 succeeded in explaining the correlation between the companies, and more importantly thereport, Exhibit p7, established that the counterpart of his company, Saybolt Brazil, did not issue the inspection report attached to the bundle of documents. In Exhibit P1.Consequently, the evidence of PW17 and Exhibit 7 do not constitute hearsay.It is also settled law that electronic evidence can be made in the ordinary course of business of establishments like bank and corporate bodies. The condition for the admissibility ofthis kind of evidence is that the maker must have made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely thatthe transaction was at the time still fresh in his memory. This is also the import of Section 41 of the Evidence Act."Per SANKEY, J.C.A. (Pp. 38-42, Paras. D-E) - read in context
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10. EVIDENCE - CONTRADICTION IN EVIDENCE: Position of the law as regards contradictions in evidence"...Thus, what has been described as contradictions, if any, are not fundamental contradictions with regard to the status of the false presentation made by the Appellant, whichdirectly induced the Federal Government to pay Brila Energy Ltd subsidy on PMS that was not imported in the manner as represented in the documents submitted by the Appellant.?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 minordiscrepancy. 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 theyaffect 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. Bethat 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 theAppellant. 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.For a contradiction to be fatal to any case or evidence, it must be on material points. Put another way, discrepancies do not negate 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 besuch 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 orversions 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 anotherperson'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 exclusiveand 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 missdetails due to lapse of time and error in narration in order of sequence. See Ekezie v State (2016) LPELR-40961(CA) 9-10, paras F-D; Maiyaki v State (2008) LPELR-1823(SC) at 34,Paras A-B; Babarinde v State (2012) LPELR-8367(CA) at 72, paras C-D; Ebeinwe v State (2011) 7 NWLR (Pt. 1246) 402; Eke v State (2011) 3 NWLR (pt. 1235) 589; Attah v State(2010) 10 NWLR (pt. 1201) 190; Akpa V State (2008) 14 NWLR (pt. 1106) 72; & Olayinka v State (2007) NWLR (Pt. 1040) 561.Going forward and even assuming that there were some inconsistencies in the testimonies of the witnesses, it is settled law that contradiction in the evidence of a witness thatwould 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 witnessand 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.In Theophilus v State (1996) 1 NWLR (pt. 423) 139 at 155, paras A-B, the Supreme Court explained the position of the law thus:"It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only where such inconsistencies or contradictions are substantial andfundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to the benefittherefrom."This point was reiterated by Rhodes-vivour, JSC in Egwumi v State (2013) 13 NWLR (Pt 1372) 525 at 555, paras D-F thus"when two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The Court is only concernedwith testimony on material facts and not peripherals that have no bearing on the substance in issue."To cap up this issue, it is well to be reminded of wise words from the learned Jurist of high repute, Oputa, JSC in Ikemson v State (1989) LPELR-1473(sc) at 44 where he magisteriallyintoned 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 theirstories 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 ofwitnesses 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 - tosay the opposite."In reiterating the position of the Supreme Court on this issue, in the more recent case of Uche v State (2015) LPELR-24693(sc) 32-33, paras B-A, Nweze, JSC followed up in thesewords"Hence, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that forcontradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That, such contradictions must be so material to the extent that they castserious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses... This is so because it would bemiraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accountswould be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth... In any event, Courts havetaken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy."?Thus, whether the six forged and uttered documents were prepared by Saybolt concremat in Brazil Inspectorate Marine Services or by the Shippers of the vessels in question is notreally material. What is material is that the companies which were said to have been involved in the trans-shipment operations in respect of the ship to ship (STS) transfer of thealleged imported PMS from Brazil to offshore Cotonou and who purportedly signed the said documents confirming such an exercise, denied doing so and were proved not to havedone so; in addition to which they specifically disowned the signatures, stamps and seals on the offending documents, thus making them contrived and false. Based on all the above,it is my considered view that the so-called contradictions in the Respondent's evidence were not material contradictions that would affect the value or diminish the weight ofevidence against the Appellant."Per SANKEY, J.C.A. (Pp. 139-145, Paras. C-E) - read in context
11. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Conditions for admissibility of computer generated documents"It is indeed the law as provided under Section 83 of the Evidence Act, 2011 that, in a proceeding where direct oral evidence of a fact would be admissible, any statement made by aperson in a document to establish that fact shall only be admissible as evidence of that fact if the conditions contained in paragraphs (a) to (d) thereof are satisfied. Section 84(1) ismore specific on the nature of evidence when it provides inter alia as follows-"84(1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence wouldbe admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and the computer in question."By the opening chapeau of this provision, computer generated documents are caught by the admissibility requirements of this provision. The relevant phrase here is "a statementcontained in a document produced by a computer". The draftsman did not leave the meaning of the word "computer" to conjecture. In Section 258(1), the Act defines "computer" tomean "any device for storing and processing information, and any reference to information being derived from other information is a reference to its being derived from it bycalculation, comparison or any other process". What this means is that, the Exhibits P23-25, being computer-generated documents, could only be admissible in evidence uponcompliance with the requirements of Section 84 (supra), and not Section 83 (supra). Therefore, the learned trial Judge was right when she relied on the legal maxim - enumeratiounius est exclusio alterius, which means the specification of one thing is an exclusion of the other. Thus, I am also of the view that when it comes to computer-generated documents,the provision of Section 83 has been excluded.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 are1. 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; and4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.There is abundant evidence on record to show that the PW9, in tendering Exhibits 23 to 25, satisfied these conditions. PW9 testified extensively on this before tendering thedocuments 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 wasgiven and they sufficiently established the conditions set out in Section 84(2) of the Act.Another condition for the admissibility of electronic evidence under Section 84(4) of the Act is that an authentication certificate of the computer/device used in producing thedocuments should be produced. From case law, this subsection permits even non-experts to issue such a certificate, especially persons who, though not possessing the requiredprofessional qualifications, may have acquired some practical knowledge and be in the position described in the subsection, to bring him within the definition of an expert by theexpanded 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 listening to his oral testimony. Section 84, which is similar to Section 69 of UK PACE 1984, does not require the prosecution to show that thestatement 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 acomputer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned withthe integrity of the computer, in other words, the way in which the computer dealt with the information to generate the statement which is being tendered as evidence of a factwhich it states. See DPP V Mckeown (1997) 1 All ER 737.If an authentication certificate is relied on, 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 position to givereliable evidence about the operation of the computer. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and thatit was operating properly will inevitably vary from case to case. See R v Shepard (1993) 2 WLR 102. There is no single approach to authentication applicable across board. Instead,the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. However, suchevidence may also be authenticated by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantialevidence."Per SANKEY, J.C.A. (Pp. 73-78, Paras. C-A) - read in context
12. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Whether the reliability and functionality of a computer used in generating a document can be made by oral evidence"The Appellant has also sought to impugn the integrity of Exhibit 7 contending that the Respondent failed to tender the certificate of trustworthiness of the computer used in printingthe documents, in compliance with Section 84(a) of the Evidence Act. However, where such a certificate is not produced, it has been held that oral evidence of a person familiar withthe operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert. See R v Shephard (1993) AC 380. This conditionwas satisfied by the testimony of PW17 on oath when he explained the process of how he scanned the emails from Saybolt Concremat Brazil, produced and printed them in colourand then sent them to the EFCC. I therefore have no reason to interfere with the finding of the trial Court in this regard. I resolve issue two in favour of the Respondent."Per SANKEY,J.C.A. (Pp. 42-43, Paras. F-C) - read in context
13. EVIDENCE - DOCUMENTARY EVIDENCE: Position of the law as regards tendering and admission of a document through a person other than the maker of such a document"It is also the contention of the Appellant that the said Lloyds, List report 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 MT Overseas Limar, not being an employee and/or officer of the Lloyds organization.However, as aforesaid, 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. SeeAbubakar v Chuks (2007) 18 NWLR (pt. 1066) 386; Obembe v Ekene (2001) 10 NWLR (pt. 722) 677; & Torti V Ukpabi (1984) 1 SC 370."Per SANKEY, J.C.A. (P. 81, Paras. A-D) - read incontext
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14. EVIDENCE - PUBLIC DOCUMENT: Whether a public document must be certified and must satisfy the dictates of the law of evidence"The law regulating the certification of public documents is as set out in Section 104 of the Evidence Act, 2011 and it provides as follows -"104(1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it prescribed in that respecttogether with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be."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 thisCourt 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 frompaying 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, theymust 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 thelaw that, with regard to public documents, persons interested in being issued with certified true copies of same must pay the prescribed fees before same are issued." Per SANKEY,J.C.A. (Pp. 93-94, Paras. A-B) - read in context
15. EVIDENCE - DOCUMENTARY EVIDENCE: Position of the law as regards tendering and admission of a document through a person other than the maker of such a document"In respect of the failure of the Respondent to call the makers of the statements contained in the Exhibit 41 series to testify in line with Section 83(1) of the Evidence Act, I endorsethe 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 astatement 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. Itmay 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 notcalled 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 thusat 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 sufferminimal 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 FirstInstance and the prosecution Court of Appeal, all to fly down to Nigeria and testify before me on documents they made which had already been authenticated by the NigerianAmbassador 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) ofthe Evidence Act, I have no reason to disturb these findings."Per SANKEY, J.C.A. (Pp. 102-103, Paras. C-E) - read in context
16. EVIDENCE - PUBLIC DOCUMENT: Whether a public document is admissible as primary evidence without certification"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 producedfrom their custody to the trial Court 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 thesame 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 notaccommodated within the provision Section 104(1) of the Act with the regard to the payment of fees, as none are prescribed. It is therefore in this light that the decision of this Courtin Lamido v FRN (Unreported) Appeal No. CA/K/436/C/2013, per Abiru, JCA, is relevant. Therein, it is 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 thewords "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 statutethat 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 EvidenceAct, 2011 could not have been by mistake or by oversight. It was intended to have a meaning and effect." (Emphasis supplied).I therefore agree that in not paying fees to certify Exhibit 41 series for its own purposes, the Respondent did not fall foul of the law. Thus, I uphold the finding of the learned trialJudge that the documents were a direct communication between the Embassy of the Federal Republic of Nigeria in Greece and the EFCC, and it contains the authentication by theEFCC that they are certified true copies of the very documents which they received."Per SANKEY, J.C.A. (Pp. 96-98, Paras. C-B) - read in context
17. EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: Burden and standard of proof in criminal cases; effect of a successful discharge of same"...It must be said that astonishingly, in the face of this flood of evidence, the Appellant and Brila Energy Ltd decided to keep mum, adducing no evidence, whether oral ordocumentary, to contradict or impugn the evidence laid before the trial Court by the prosecution. This, of course is their inalienable and absolute right to do since the law is settledthat 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. See Section 135(1)and (2) of the Evidence Act in conjunction with the presumption of innocence in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended; Okashetu vState (2016) LPELR-40611(SC) at 4, paras D-E; & Chianugo v State (2002) 2 NWLR (pt. 750) 225 at 236. I think the prosecution succeeded in proving its case to this standard andthus acquitted itself creditably by discharging the onus of proof on it. I therefore resolve issue seven in favour of the Respondent."Per SANKEY, J.C.A. (Pp. 130-131, Paras. B-A) - readin context
18. EVIDENCE - WITHHOLDING EVIDENCE: Extent of the applicability of the provision of the Evidence Act with regard to withholding evidence"On the contention of the Appellant that the learned trial Judge should have invoked the presumption in Section 167(d) of the Evidence Act against the Respondent for failing toproduce the letter from Napa Petroleum sent to it by Enterprise Bank, it was unwarranted since the EFCC denied ever receiving such a letter, and the Appellant did not consider itworth his while to cause a 'Notice to produce' the document to be issued and served on the Respondent. If the Appellant had considered the letter sufficiently important to hisdefence, he should have taken proactive steps to produce it before the trial Court to establish his defence to the Charge. Having not done so, he cannot now be heard tocomplain."Per SANKEY, J.C.A. (Pp. 157-158, Paras. F-C) - read in context
19. EVIDENCE - HEARSAY EVIDENCE: Position of the law on hearsay evidence in relation to documents"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 notpresent 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 merelythe fact that it was made. Section 37 of the Evidence Act, 2011 provides that:Hearsay means a statement(a) oral or written made otherwise than by a witness in a proceeding; or(b) contained or recorded in a book, document or any record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for thepurpose of proving the truth of the matter stated in it.Section 38:Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.The meaning and nature of hearsay evidence was described in Arogundade v State (2009) LPELR-559(SC) by the Supreme Court, per Onnoghen, JSC (as he then was) at page 23 ofthe E-Report in this manner:"In the case of Subramaniam vs Public Prosecutor, (1956) 1 WLR 965 at969, heresay 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 ofwhat 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".From the above, it is clear that the purpose for which a statement made by a person to the witness is tendered in Court determines its admissibility since if the intention ofintroducing the evidence is to establish the truth of the statement/evidence it would be hearsay and inadmissible but would be admissible if the purpose or intention is to establishthe fact that the statement was made by the person concerned."In Ojo v Gharoro (2006) LPELR-2383(SC) at page 16 of the E-Report, Tobi, JSC, described hearsay evidence as follows:"When a third party relates a story to another as proof of contents of a statement such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely fromthe credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee v. Omo (1990) 6 NWLR(Pt.157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh v. The State (1992) 2NWLR (Pt. 223) 257."See also: Utteh v State (1992) LPELR - 6239(SC); FRN v Usman (2012) LPELR-7818(SC). Although hearsay evidence is generally inadmissible, the provisions of the Section 38 of theAct make it clear that the law regarding hearsay is not cast in iron. There are exceptions to the rule. The main exceptions to the hearsay rule are contained in Part IV in the EvidenceAct, 2011. One of the exceptions is in respect of records made or kept in the course of regularly conducted activity of a business, organization, occupation or calling, whether or notfor profit.Relevant thereto are the provisions of Sections 41 and 51 of the Act which provide as follows:Section 41 :A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books,electronic device or record kept in the ordinary course of business, or in the discharge of a professional duty; or of an acknowledgment written or signed by him of the receipt ofmoney, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written orsigned by him:Provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was atthat time still fresh in his memory.Section 51:Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, butsuch statements may not alone be sufficient evidence to charge any person with liability.The phrase in the ordinary course of business underscores a requirement of routineness and repetitiveness employed in keeping of traditional or typical business records. On thesaid proviso to Section 41 which requires for the admissibility of the statement made contemporaneously with the transaction recorded or so soon thereafter, I agree with thelearned author, Sir T.A. Nwamara in Discovery, Disclosure and Admissibility of Electronic Evidence in Nigeria at page 141 thereof that:"The addition of the words "or so soon thereafter" means that the recording of the statement may not always be strictly synchronous to make the record admissible but there mustbe a clear and immediate approximation in terms of the same relative period and space."Section 51 covers entries made in account books or electronic records made in the ordinary course of business. The phrase regularly kept is not synonymous with correctly kept. Theaccounts or electronic record must have been kept in accordance with certain fixed or customary method or system. If the records are found to be regularly kept, though not tocorrectly kept, it may affect the weight to be attached to the entries therein but not the admissibility of the records. By the provisions of Section 51, such statements may not alonebe sufficient evidence to charge any person with liability. There must be corroborative evidence to prove the items therein.The evidence before the lower Court was that the EFCC had requested for certain information available from records kept by the company, Saybolt Nigeria, by letter, Exhibit 6.Saybolt Nigeria had its sister company as Saybolt Concremat in Brazil. Both companies had their parent company Saybolt domiciled in Netherlands. The evidence of PW17 that allthree companies were connected in their business concern was not impugned. Electronic records of business activities made in the ordinary course of business and enteredcontemporaneously with the transaction recorded or so soon thereafter does not constitute hearsay evidence. PW17 gave detailed evidence on how the record, Exhibit P7, whichconstituted record kept in the ordinary course of business by Saybolt Brazil was made available. By virtue of the provisions of Sections 41 and 51, the said Exhibit P7 did notconstitute hearsay evidence."Per OTISI, J.C.A. (Pp. 172-177, Paras. A-F) - read in context
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20. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Whether the reliability and functionality of a computer used in generating a document can be made by oral evidence"The burden of proving that there had been no improper use of the computer and that it was operating properly could be discharged without calling a computer expert. It may bedischarged by calling someone familiar with its operation in the sense of knowing what the machine was required to do and who could say that it was doing it properly. In otherwords, oral evidence may be given of the working of the computer in line with the provisions of Section 84(2). See: R v Shephard [1991] 93 Cr.App.R.139, in which the provisions ofSection 69 of the U.K. Police and Criminal Evidence Act, 1984 (now repealed by Section 60 of the U.K. Youth Justice and Criminal Evidence Act 1999) were considered. Section 84 ofthe Evidence Act, 2011 is similarly worded with the said Section 69 of the U.K. Police and Criminal Evidence Act. 1984. In Dickson v Sylva (supra), the Supreme Court, per Nweze,JSC, at pages 23 -24 of the E-Report said:"Interpreting provisions similarly worded like Section 84 (supra), the defunct House of Lords [per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphsA-C, [HL], Documents produced by computers are an increasingly common feature of all businesses and more and more people are becoming familiar with uses and operation.Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improperuse of the computer and it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarelybe necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computerin the sense of knowing what the computer is required to do and who can say that it is doing it properly. [Italics supplied for emphasis]In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, theconditions stipulated in Section 84(2) must be satisfied. However, this is subject to the power of the Judge to require oral evidence in addition to the certificate. As the eminent LordGriffith explained in the said case [R v. Shepherd]: Proof that the computer is reliable can be provided in two ways: either by calling oral evidence or by tendering a written certificatesubject 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 whofrom 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 toaccept at its face value or to ask the Judge to require oral evidence which can be challenged in cross examination[Italics supplied for emphasis]" Thus, proof that the computer used to generate evidence is reliable can be provided in two ways: either by calling oral evidence, under Section 84(2)or by tendering a written certificate, under Section 84(4). The uncontroverted evidence of PW17 before the trial Court supplied the details required by Section 84(2). The computergenerated evidence, Exhibit P7, tendered by PW17 was therefore admissible and rightly relied upon by the learned trial Judge."Per OTISI, J.C.A. (Pp. 184-187, Paras. B-B) - read incontext
21. EVIDENCE - ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Whether the reliability and functionality of a computer used in generating a document can be made by oral evidence"It was the contention of appellant's senior counsel that Exhibit P7 was inadmissible on the ground, inter alia, that being computer-generated documents the certificate ofauthentification required by Section 84(4) of the Evidence Act 2011, was not tendered. If is now established that the requirement of Section 84(2) and (4) of the said Act can besatisfied by oral evidence of a person familiar with the operation of the computer as to its reliability and functionality. See R v Shephard (1993) AC 380 and Dickson v Sylva (2017) 8NWLR (Pt 1567) 167, when the Supreme Court held that:"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 oralevidence".The evidence of PW17 satisfied the required of this to law.''The evidence of the witness in this regard was all that was needed to satisfy Section 84(2) and (4) of the Evidence Act as the requirement therein is in respect of the computer usedin downloading the information."Per EKANEM, J.C.A. (P. 190, Paras. A-F) - read in context
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JUMMAI HANNATU SANKEY. J.C.A.(Delivering the
Leading Judgment): This Appeal is against the Judgment
of the High Court of Lagos State in Charge No.
ID/196c/2012, delivered on March 16, 2017 by Okunnu, J.
Brila Energy Limited, the 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) based on the
Petitions sent to the EFCC by the then Minister of
Petroleum Resources, Allison Madueke, and some Civil
Society organisations. The Appellant, as the 1st Defendant
before the lower Court, is the Managing Director and the
alter ego of the 2nd Defendant. At the conclusion of
investigation, the Appellant and Brila Energy Limited 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 pleaded not guilty and the
matter
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proceeded to trial.
To prove its case, the Respondent called twenty witnesses
and tendered forty-three exhibits. At the close of the
Respondent's case, the Appellant and the 2nd Defendant
entered a "No Case Submission" which was however
overruled. Thereupon, the lower Court called upon the
Appellant and the 2nd Defendant 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 2nd Defendant guilty on all counts. The
Appellant 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 2nd Defendant, Brila Energy Limited,
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. Dissatisfied with the Judgment of the trial Court,
the Appellant has appealed.
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At the hearing of the Appeal on January 8, 2018, Professor
Taiwo Osipitan, S.A.N. with Lawal Pedro, S.A.N. appeared
for the Appellant, leading Wale Ilesanmi Esq., Toyeeb Sanni
Esq., Chidayo Okeowo Esq., Adewunmi Abioye Esq. and
Koyinsola Osipitan Esq. Prof. Osipitan adopted the
Appellant's Brief of argument filed on 11-10-2017 and the
Appellant's Reply Brief of argument filed on 05-01-2017 but
deemed properly filed on 08-01-2018 in urging the Court to
allow the Appeal. He adumbrated briefly in tune with the
arguments on issue five of the issues for determination in
the Appellant's Brief.
On the part of the Respondent, S.K. Atteh Esq. appeared
for the Respondent, along with K.M.A. Olusesi Esq. and T.J.
Banjo Esq. Mr. Atteh also adopted the Respondent's Brief
of argument filed on 06-12-2017 but deemed properly filed
on 07-12-2017 in urging the Court to dismiss the Appeal.
Counsel also briefly responded to the submissions made in
respect of issue five, which arguments were also in tandem
with his submissions on the issue in his Brief of argument.
The Appellant, in his Brief of argument, framed eleven
issues for determination from the 28 Grounds of Appeal in
the
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Amended Notice of Appeal as follows:
(i) Whether the Appellant was rightly charged,
prosecuted and convicted along with the 2nd
Defendant (a limited liability Company) with respect
to the crimes alleged against the company. (Grounds
20 & 25)
(ii) Whether the learned trial Judge was right or
wrong to have relied on the inadmissible/Hearsay
evidence of PW 17 and Exhibit P7 to hold that the
prosecution proved beyond reasonable doubt the
offences of forgeries of 2 (two) Saybot Concrement
documents (pages 26 & 29 in Exhibit Pl) against the
Appellant. (Grounds 5, 8, 14 & 16)
(iii) Whether the Learned Trial Judge was right or
wrong when she held that the prosecution proved
beyond reasonable doubt the offence of forgeries of 4
Inspectorate Marine Services documents (Exhibit P8)
against Appellant. (Ground 6)
(iv) Whether the learned trial Judge was right or
wrong when she held that the prosecution proved
beyond reasonable doubt, the offence of uttering 2
(two) Saybolt Concrement documents (pages 26 & 29
in Exhibit p1) and 4 Inspectorate Marine services
documents (Exhibit p8) against the Appellant.
(Ground 7)
(v) Whether the learned
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trial Judge rightly admitted in evidence and relied on
the internet print-out copy of Lloyds List of
Intelligence Report/Database (Exhibits 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 case/allegation that the Mother
vessel MT LIMAR was not at the port of loading and
point of transhipment at the relevant times stated in
the bills of lading. (Grounds 10, 11 & 15)
(vi) Whether the learned trial Judge rightly or
wrongly admitted in evidence, accorded 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 of fuel
by the 2nd Defendant and non-STS transfer of fuel by
the Mother Vessel MT overseas Limar to 1st Daughter
vessel Delphina. (Ground 13)
(vii) Whether the learned trial Judge rightly or
wrongly held that the prosecution proved beyond
reasonable doubt, the offence of Advance Fee Fraud
of the sum of N963, 796,119.85 against the Appellant.
(Grounds 4 & 26).
(viii) Whether the material and
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unresolved contradictions in the evidence of
prosecution witnesses (PWs) were sufficient to cast
doubt in the guilt of the Appellant. (Ground 3)
(ix) Whether the learned trial Judge rightly or
wrongly admitted and acted on irrelevant and highly
p r e j u d i c i a l e v i d e n c e o f A p p e l l a n t ' s
reputation/business relationship as Director and
Shareholder of Inter oil Nigeria Limited and Ports
and Marine Cargo Experts Limited. (Grounds 21, 22 &
24)
(x) 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 in the prosecution's case did not result in
miscarriage of justice. (Grounds 18 & 28)
(xi) Whether the sentences imposed by the Court
below [on the Appellant] who has no Criminal record
is an issue given the circumstances of the case is
excessive. (Ground 27)
The Respondent adopted the issues formulated by the
Appellant but with slight modifications as follows:
1. Whether the Appellant was rightly charged,
prosecuted and convicted along with the 2nd
Defendant with respect to the crimes alleged against
them. (Grounds 20 & 25).
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2. Whether the learned trial Judge was right or wrong
to have relied on the evidence of pw17 and Exhibit p7
to hold that Respondent proved beyond reasonable
doubt the offences of forgeries of two Saybolt
concremat documents (pages 26 and 29 of Exhibit P1)
against the Appellant (Grounds 5, 8, 14 and 16).
3. Whether the learned trial Judge was right or wrong
when she held that the Respondent proved beyond
reasonable doubt the offence of forgeries of four (4)
Inspectorate Marine services documents on pages 19,
22, 27 and 30 of Exhibit P1 and Exhibit P8 against the
Appellant (Ground 6).
4. Whether the learned trial Judge was right or wrong
when she held that the Respondent proved beyond
reasonable doubt, the offence of uttering 2 (two)
Saybolt concremat documents (pages 26 & 29 in
Exhibit p1) and 4 Inspectorate Marine services
documents (pages 19, 22, 29 and 30 of Exhibit p1)
against the Appellant. (Ground 7).
5. Whether the learned trial Judge was right in
relying on the evidence adduced through pw9 and
Exhibits p23-25 for the purpose of establishing the
fact that the Mother vessel MT overseas Lima
submitted in Exhibit p1 by the
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Appellant was not at the point of loading at Sao
Sabastiao in Brazil and also did not participate in the
ship to ship transfer (STS) with the Daughter vessel
MT Delphina offshore Cotonou as represented by the
Appellant in Exhibit p1. (Grounds 10, 11, and 15).
6. Whether learned trial Judge rightly or wrongly
admitted in evidence and accorded probative value to
Exhibit P41 which was a report of the Mutual Legal
Assistance Request made by the Federal Government
to the Greek Government in order to establish the
truth of the allegation of non-importation of Premium
Motor spirit (PMS) by the 2nd Defendant and non-
STS transfer of PMS by the Mother vessel MT
overseas Limar to 1st Daughter Vessel MT Delphina.
(Ground 13).
7. Whether the learned trial Judge rightly or wrongly
held that the prosecution proved beyond reasonable
doubt the offence of obtaining the sum of N963, 796,
119.85 against the Appellant. (Grounds 4 and 26)
8. Whether there are contradictions in the evidence of
Respondent's witnesses (pws) and whether the
learned trial Judge properly evaluated the evidence
adduced by the Respondent at the trial. (Grounds 3,
18 and 28)
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9. Whether the learned trial Judge rightly or wrongly
admitted and evaluated the evidence of the
Appellant's business relationship as Director and
shareholder of Interall Limited and Port Cargo Expert
Limited. (Grounds 21, 22, 24)
10. Whether the sentences imposed by the trial Court
on the Appellant are appropriate, taking into account
the nature and gravity of the offence for which the
Appellant was convicted. (Ground 27).
Since the issues are virtually identical in content, those
framed by the Appellant are adopted in the resolution of
this Appeal.
Issue one - whether the Appellant was rightly
charged, prosecuted and convicted along with the 2nd
Defendant (a limited liability Company) with respect
to the crimes alleged against the company.
Under this issue, learned Senior Counsel for the Appellant
submits that the Appellant and the 2nd Defendant are
separate and distinct legal personalities, the Appellant
being a natural person and the 2nd Defendant, an artificial
entity. Thus, that the acts and omissions of the Appellant
are attributed to the 2nd Defendant. Reliance is placed on
Sections 64(B) & 65 of the Companies and Allied Matters
Act
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(CAMA) which recognises the office of the Managing
Director of a Company and makes the Company liable for
acts of the Director/Managing Director. It is therefore
submitted that his status as the 2nd Defendant's Managing
Director, without more, does not warrant his joint/vicarious
criminal liability for the crimes alleged against the 2nd
Defendant.
It is argued that the 2nd Defendant was the applicant and
the sole beneficiary of the fuel import license on whose
behalf the Letter of credit was established by Enterprise
Bank in respect of payment for the fuel to the supplier.
Also, that the payment for the fuel which was imported was
made on behalf of the 2nd Defendant by its Bank
(Enterprise Bank) to the supplier of fuel. In addition, that
all the import documents in Exhibit P1 were in the name of
2nd Defendant, the Sovereign Debt Note was issued by the
Debt Management Office in favour of the 2nd Defendant,
and the fuel subsidy was paid into the 2nd Defendant's
account with Enterprise Bank.
While conceding that the Appellant signed the covering
letter of the documents submitted to the Petroleum
Products Pricing Regulatory Agency (PPPRA) in support of
the
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fuel subsidy claim in his official capacity as the Managing
Director, the conviction of the Appellant as a joint party
(paticipis criminis) to the crimes of Advance Fee Fraud,
forgery and uttering of the documents runs contrary to the
settled principle that with incorporation, a company is
separate and distinct from its owners, managers and
shareholders. Salomon v Salomon (1897) AC 22; Royal
Pet. Co Ltd v FBN LTD (1997) 6 NWLR (pt. 510) 584
at 599, para E; & KSO & Allied Prod. Ltd v Kofa Trad.
co Ltd (1996) 3 NWLR (pt. 436) 244 at 263, para A are
relied on.
It is further submitted that it is a principle of corporate
criminal responsibility that while a company is criminally
liable for the acts or omissions of its alter ego that are
undertaken on its behalf, a company's director/alter ego is
ordinarily not jointly criminally responsible with the
company for crimes alleged against the company. Reliance
is placed on Adeniji v State (1992) 4 NWLR (Pt. 234) at
262-263; & Okoli v Morecab Finance (Nig) Ltd (2007)
14 NWLR (pt. 1053) 37 at 57, para E; Faith
Enterprises v BASF Nig. Ltd (2001) 8 NWLR (pt. 714)
242 at 250; Sasegbon Nigerian Companies
11
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8) LP
ELR-43
993(
CA)
& Allied Matters Law & Practice Vol. 1 P117; &
Abacha v AGF (2014) 18 NWLR (Pt. 1438) 31 at 49,
para F-G. The Court is therefore urged to resolve this issue
in favour of the Appellant.
In response, learned Counsel for the Respondent submits
that PW14, a Deputy Manager with Enterprise Bank
Limited, the Bank that financed the purported importation
testified that the Appellant came to the Bank sometime in
2010 with a Petroleum Product Pricing Agency (PPPRA)
Permit for the importation of Premium Motor Spirit (PMS).
After a discussion, the Bank sought approval from its Board
for the 2nd Defendant to finance the importation of the
PMS granted under the PPPRA permit. As a consequence, a
Letter of Credit (LC) was opened for the importation of
PMS to the tune of US$11.912m.
PW14 further testified that it was the Appellant who gave
the Bank the name of the mother vessel as MT Heli and the
daughter vessel as MT Delphina, but the Appellant later
changed the name of the mother vessel to MT Panther.
Thereafter, after the discharge of the PMS, the Bank
received money into the customer's account and that the
customer (the Appellant) collated the documents
12
(201
8) LP
ELR-43
993(
CA)
and sent them to the PPPRA Zonal office, Lagos and
submitted the Notice of arrival, informing them of the time
when the vessel would arrive. The Appellant was advised
that as soon as the vessel arrived, he should submit a copy
of the documentation. The Appellant submitted the
documents on behalf of the 2nd Defendant, which
documents were checked and forwarded to the PPPRA
Head Office in Abuja, which subsequently recommended
payment of the sum of N963, 790, 199.95 to the 2nd
Defendant, based on the Appellant's claim submitted to
PPPRA and admitted in evidence at the trial Court as
Exhibit P1.
It is further submitted that, from the evidence of PW4 in
conjunction with Exhibits P2 and P3, a letter from the
Corporate Affairs Commission (CAC), the 2nd Defendant is
a registered company and the 1st Defendant is the
controlling shareholder. Also, the forwarding letter of
Exhibit P1 titled "Payment Claim for Import of 13.243.447
Mt of PMS under the PSF Scheme for 4th Quarter 2010,
addressed to the Executive Secretary PPPRA Abuja, was
signed by the Appellant as the Managing Director/CEO of
the 2nd Defendant. It is therefore submitted that the
Appellant, by signing and
13
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8) LP
ELR-43
993(
CA)
forwarding Exhibit P1 to PPPRA for payment to 2nd
Defendant, authenticated the contents of Exhibit P1 and
held himself out and responsible for the contents of Exhibit
P1. Reliance is placed on Tsalibawa v Habiba (1991) 2
NWLR (pt 174) 451 at 480-481 H-A, as well as the
caveat in Paragraph 3(iii) of the PPPRA Import Permit.
In addition, it is contended that the correspondences
between the Appellant and Marvin Shipping Services
(pages 119 to 142 of Exhibit P41) show that the Appellant
was constantly giving direct instructions to the Broker of
MT Delphina, to wit: Marvin Shipping Services Inc., on
where to load petroleum products and where to discharge.
It is therefore submitted that with this, as well as other
correspondences at pages 119 to 142 of Exhibit P41, the
Appellant was the directing mind of Brila Energy Ltd. Thus,
both the Appellant and Brila Energy Ltd are deemed to
have committed the offences for which the lower Court
convicted them. The liability of the Appellant in this regard
is as stated by the Supreme Court in Oyebanji V State
(2015) All FWLR (Pt.800) 1182.
It is further submitted that the law as set out in Section
10(1) of the Advance
14
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8) LP
ELR-43
993(
CA)
Fee Fraud Act imputes the actions and mental state of the
Appellant in the transaction to the 2nd Defendant. Reliance
is placed on the decision of this Court in Nwude v FRN
(2016) 5 NWLR (Pt.1506) 471 at 482. The Court is
therefore urged to affirm the Judgment of the lower Court
that the Appellant was rightly convicted for the joint
offences committed by him and Brila Energy Ltd and to
resolve this issue in favour of the Respondent.
In a brief reply on point of law on the issue of the
Appellant's signature on the covering letter of the subsidy
documents, Exhibit P1, it is submitted that when a person
signs a document for or on behalf of another person, the
signature is deemed to be that of the other person. The
document is deemed to have been made by the person on
whose behalf the document was signed and the exhibits
are, in the eyes of the law, the 2nd Defendant's documents.
Rel iance is p laced onImoukhede v Mekunye
CA/L/314M/2012 of 14/11/2014 at 26; AGGS v
Nicholson 25 LJ Ex 348; AG Federation v AIC Ltd
(2000) to NWLR (pt. 675) 293; Makwe v Nwukor
(2001) 14 NWLR (pt. 733) 356; & Adeniji v State
(1992) 4 NWLR (Pt. 234) at 262-263 is relied on.
15
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8) LP
ELR-43
993(
CA)
It is also contended that the decision of the learned trial
Judge on the non-importation of fuel from Brazil by 2nd
Defendant was based on suspicion and speculation and thus
was not based on a proper evaluation of the evidence.
Osuji V Ekeocha (2009) All FWLR (pt. 490) 614 SC;
Osazuwa v Isibor (2004) All FWLR (pt. 194) 387 at
407 are relied on.
Findings
Learned Senior Counsel has conceded, and thus it is
common ground that the Appellant at all times, acted in his
capacity as the managing director and alter ego of the 2nd
Defendant, Brila Energy. It is also correct that the locus
classicus on this is Salomon v Salomon & Company Ltd
(1987) AC 22. Therein, the House of Lords, in reversing
the decision of the Court of Appeal, held that a limited
liability company is separate and apart from its members
and officers. In addition, Section 65 of the Companies and
Allied Matters Act, 1990 provides-
"Any act of the members in general meeting, the
board of directors or of a managing director while
carrying on in the usual way the business of the
company, shall be treated as the act of the company
itself and the company shall be criminally and civilly
16
(201
8) LP
ELR-43
993(
CA)
liable therefore to the same extent as if it were a
natural person. Provided that:
(a) The company shall not incur civil liability to any
person if that person had actual knowledge at the
time of the transaction in question that the general
meeting, board of directors, as the case may be had
no power to act in the matter or had acted in an
irregular manner or if, having regard to relationship
with the company, he ought to have known of the
absence of such powers or the irregularity.
(b) If in fact a business is being carried out by the
company, the company shall not escape liability for
acts undertaken in connection with that business
merely because the business in question was not
among the business authorized by the company's
memorandum."
It is evident from these provisions that a limited liability
company or an incorporated company is a different legal
entity from its management. It has a separate and distinct
life and existence. In other words, the officers and
members of an incorporated company are covered by the
company's veil of incorporation and that veil cannot be
lifted for the purpose of attaching legal responsibility or
liability to its
17
(201
8) LP
ELR-43
993(
CA)
officers who are carrying on the usual business of the
company. See also Oriebosi v Andy Sam Investment Co.
Ltd (2014) LPELR-23607(CA) 23-24; Fairline
Pharmaceutical Industries Ltd v Trust Adjusters Nig.
Ltd (2012) LPELR 20860(CA) 30; Chartered Brains
Ltd v Intercity Bank Plc (2009) LPELR 8697(CA)
18-22; Ogbodo v Quality Finance Ltd (2003) 6 NWLR
(pt. 815) 147: Erebor V Major & Co. (Nig) Ltd (2000)
LPELR-9129(CA) 14.
Also, the Black's Law Dictionary 8th Edition at page 89,
defines 'alter ego' thus:
"A corporation used by an individual in conducting
personal business, the result being that a Court may
impose liability on the individual by piercing the
corporate veil when fraud has been perpetrated in
someone dealing with the corporation."
Nonetheless, in-roads have long since been made into this
absolute position of the law such that there are exceptions
to the rule. For instance, a director or managing director of
a company shall be held liable or responsible when it is
alleged and proved that he is a surety or a guarantor to the
trade debt of the company. See Cooperative Bank Ltd v
Obokhare (1996) 8 NWLR (Pt. 468) 579; & Afribank
Nig
18
(201
8) LP
ELR-43
993(
CA)
Ltd v Moslad Enterprises Ltd (2007) LPELR-5126(CA)
19-10, paras G-D, Akaahs, JCA (as he then was).
Another exception has also been created by Section 10(1)
of the Advance Fee Fraud Act which provides -
"Where an offence under the Act has been committed
on the instigation or with the connivance of or
attributable to any neglect on the part of a director,
manager, secretary or other similar officer of the
body corporate, or any person purporting to act in
such capacity, he, as well as the body corporate where
practicable shall be deemed to be guilty of that
offence and shall be liable to be proceeded against
and punished accordingly."
This therefore constitutes an exception to the law that the
act of an officer of a company such as a director, manager
or the like, shall be treated as the act of the company itself
and he shall be criminally or civilly liable for such acts. It is
therefore no surprise that this Court, in the recent case of
Nwude v FRN (2015) 5 NWLR (Pt.1505) 471 at 482,
when faced with similar facts and circumstances, held thus:
"Under Section 10 of the Advance Fee Fraud and
other Related Offences Act, 1995, where an
19
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8) LP
ELR-43
993(
CA)
offence under the Act which has been committed by a
body corporate is proved to have been committed on
the instigation or with the connivance of or
attributable to any neglect on the part of a director,
manager, secretary, or other similar officer of the
body corporate, or any person purporting to act in any
such capacity, he, as well as the body corporate,
where practicable shall be deemed to have committed
that offence and shall be liable to be proceeded
against and punished accordingly."
The Appellant herein was charged with, among other
offences, for the offence of obtaining money by false
pretences contrary to Section 1(3) of the Advance Fee
Fraud and Other Related Offences Act No. 14 of 2006. He
therefore falls squarely under this exception to the rule in
Section 65 of the Companies and Allied Matters Act.
In addition, I agree with learned Counsel to the Respondent
that the decision of the Supreme Court in Oyebanji v
State (2015) LPELR-24751(SC) is firmly applicable to
the facts in the instant Appeal. In that case, the managing
director of the company sought to escape liability from an
allegation of stealing levelled against him by hiding
20
(201
8) LP
ELR-43
993(
CA)
behind the veil of incorporation, contending that by
receiving monies for the purchase of tyres, tubes and
granulated sugar from the complainant to the Police and
defaulting on the agreement, it acted for the Company
Baminco Nig Ltd, and so could not be held liable for the
acts of the company. In upholding the decisions of the trial
Court as well as that of the Court of Appeal, the Supreme
Court, per Galadima, JSC held thus at pages 19-21 of the E-
Report as follows:
"The Courts below rightly disregarded the corporate
entity of the Baminco (Nig) Ltd and paid regard to the
entities behind the legal facade or "veil" of
incorporation in the interest of justice... In my
respectful view, the veil of incorporation ought to be
l i fted in the interest of justice and in the
circumstances of this case. There can be no better
instance when the corporate veil can be lifted as in
this case. The Court will not allow a party to use its
company as a cover to dupe, defraud or cheat
innocent individual or a company who entered into a
lawful contract with it only to be confronted with
defence of the company's legal entity as distinct from
its directors. As it has been
21
(201
8) LP
ELR-43
993(
CA)
observed elsewhere, most companies in this country
are owned and managed solely by an individual, while
registering the members of his family as the
shareholders. such companies are nothing but one-
man business! Hence there is the tendency to enter
into contract in such company's name and later on
turn around to claim that he was not a party to the
agreement since the company is a legal entity. See
Akinwumi Alade v Alice (Nigeria) Ltd & Anor (2010)
12 SC (Pt. II) 59.
This case at hand is a case in which the law should
disregard the corporate entity and pay regard to the
entities behind the corporate veil. Section 35 of the
Criminal Code cap. 38 vol. II Laws of Oyo State 2000...
the law applicable at the time of trial provides thus...
By this provision. the allegation of crime lifts the veil
of corporate or voluntary associations and unmasks
the face of the suspected criminal to face
prosecution. Where the veil is lifted, the law will go
behind the corporate entity so as to reach out to the
individual member of the company whose conduct or
act is criminally reprehensible."
(Emphasis supplied)
In his own contribution to the Judgment, Fabiyi, JSC
22
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8) LP
ELR-43
993(
CA)
also stated inter alia thus at pages 25-26 of the E-Report
"Let me start my remarks by pointing it out right
away that the appellant qualifies as the 'alter ego' of
Baminco Nigeria Ltd... 'Alter ego' is said to mean
'second self'. Under the doctrine of alter ego, [the]
Court merely disregards [the] corporate entity and
holds [the] individual responsible for [the] act
knowingly and intentionally done in the name of the
corporation. Ivy v. Plyler 246 Cal. App. 2d 548. To
establish the doctrine, it must be shown that the
individual disregarded the entity of the corporation
and made it a mere conduit for the transaction of his
own private business. The doctrine simply fastens
liability on the individual who uses the corporation
merely as an instrumentality in conducting his own
personal business. Liability springs from fraud
perpetrated not on the corporation but on third
persons dealing with the corporation... Perhaps I
should further say that the appellant was the
directing mind and/or arrow head of Baminco Nigeria
Limited when the role carried out by him is properly
considered. The appellant was the human personality
behind the activity of the company...
23
(201
8) LP
ELR-43
993(
CA)
There is no shred of doubt that the fraudulent acts of
the appellant called for the lifting of the veil of his
company which opened him up for prosecution before
the trial Court... He was rightly found guilty of
stealing by conversion of the stated money." (Emphasis
supplied)
From the facts of the instant case, it is true that it was the
2nd Defendant, Brila Energy Ltd, who was awarded the
permit to import about 13,000 metric tons of Premium
Motor Spirit (PMS) by the PPPRA from Napal Petroleum
Inc. Panama page 1 of Exhibit P1. The Appellant himself
submitted Exhibit 1 to PPPRA supposedly to show that the
product, PMS was imported from Napal Petroleum Inc.
Panama and shipped to Nigeria through MT Overseas
Limar, as the mother vessel, from the port of loading in Sao
Sebastio in Brazil.
In addition, the Appellant submitted documents that
showed that Saybolt was the company that conducted the
inspection of the product on board the mother vessel MT
Overseas Limar - pages 26 & 29 of Exhibit P1. He also
submitted documents purported to emanate from
Inspectorate Marine Services Nigeria Ltd as the inspectors
who inspected the mother vessel to ensure that
24
(201
8) LP
ELR-43
993(
CA)
the consignment met the specifications - pages 71, 19, 22
and 27 of Exhibit P1. Also submitted were documents from
Port Cargo Experts Ltd to show that it superintended the
discharge of products from MT Overseas Limar to MT
Delphina and MT Delphina to MT Dani 1 at Cotonou - pages
22, 27, 19 and 37 of Exhibit P1.
It is therefore these representations made in the bundle of
documents attached to the letter submitted to the PPPRA
under the hand of the Appellant as the alter ego of Brila
Energy Ltd and admitted in evidence as Exhibit P1, that
were held by the trial Court to be false representations
which tended to show that the company had imported the
petroleum product (PMS) from Napal Petroleum Panama in
Brazil and shipped it through the mother vessel MT
Overseas Limar. The forwarding letter of Exhibit P1 titled
"Payment claim for import of 13,243.447 MT of PMS under
the PSF scheme for 4th Quarter 2010' was signed by the
Appellant as the Managing Director/CEO of the company.
In addition to the provision of Section 10(1) of the Advance
Fee Fraud Act, this Court in the case of Tsalibawa V
Habiba (1991) 2 NWLR (Pt. 174) 461, per Ogundere,
JCA (as he then
25
(201
8) LP
ELR-43
993(
CA)
was) stated thus on the import, significance and
consequence of a signature on a document-
"It is common knowledge that a person's signature,
written names or mark on a document, not under
seal, signifies an authentication of that document
that such a person holds out himself out as bound or
responsible for the contents of such a document. R v.
Kent Justices L.R. 8 Q.B. 305."
These documents were submitted by the Appellant to the
Federal Government through its agency, the PPPRA, to
support his claim for the payment of fuel subsidy to the
company where he was the alter ego, which was indeed
subsequently paid as claimed in the sum of N963, 796,
199.85
Furthermore, it is a fact as disclosed by Exhibit 3, the letter
from the CAC to the EFCC, that the Appellant was the
controlling share-holder, the Managing Director, alter ego
and also directing mind of Brila Energy Ltd. After the
import licence to import 13, 000 metric tonnes of PMS was
awarded to Brila Energy Ltd, the Appellant again
approached Enterprise Bank (formerly Spring Bank Plc) for
a facility to finance the purchase and importation of the
PMS. Thereafter, he furnished the Bank with all the
26
(201
8) LP
ELR-43
993(
CA)
relevant information in respect of the importation of the
PMS, such as the name of the mother vessel, which he gave
as MT Heli, and the daughter vessel which he gave as MT
Delphina. Sometime later, he changed the name of the
mother vessel to MT Panther (also referred to as MT
Panta).
Thereafter, the Appellant again collated documents and
sent them to the Petroleum Product Pricing Regulatory
Agency Zonal office, Lagos and submitted the Notice of
arrival informing of the time when the vessel would arrive.
The Appellant submitted these documents on behalf of the
2nd Defendant, which documents were checked and
forwarded to the PPPRA Head office in Abuja, which
subsequently recommended the payment of the sum of
N963, 796, 199.85 to the 2nd Defendant, based on the
Appellant's claim submitted to PPPRA and admitted in
evidence at the trial Court as Exhibit P1. After this, the
Enterprise Bank again received payment into the
customer's account.
From these actions and more carried out by the Appellant
on behalf of the 2nd Defendant, the Appellant no doubt
held himself out as the alter ego of the company. Therefore,
where his actions in purporting to import PMS
27
(201
8) LP
ELR-43
993(
CA)
in line with the import permit issued to the company by
PPPRA, and in submitting documentation which he knew to
be false representations of how and where the PMS was
sourced and discharged, which directly led to the payment
of fuel subsidy to the company, the Appellant left himself
wide open to be held responsible for his actions which were
found to have been illegal and/or fraudulent - Section 10(1)
of the Advance Fee Fraud Act. The Appellant was therefore
rightly prosecuted and along with the 2nd Defendant for
the crimes alleged against the company. It is for these
reasons that I resolve issue one in favour of the
Respondent.
Issue two - Whether the learned trial Judge was right
or wrong to have relied on the inadmissible/hearsay
evidence of PW17 and Exhibit P7 to hold that the
prosecution proved beyond reasonable doubt the
offences of forgery of two Saybolt Concrement
documents (at pages 26 & 29 in Exhibit P1) against
the Appellant.
This issue, in my humble view, was better crafted by the
Respondent thus: whether the learned trial Judge was right
or wrong to have relied on the evidence of PW17 and
Exhibit P7 to hold that Respondent proved
28
(201
8) LP
ELR-43
993(
CA)
beyond reasonable doubt the offences of forgeries of two
Saybolt Concremat documents (pages 26 and 29 of Exhibit
P1) against the Appellant.
In answer to this question, learned Senior Counsel for the
Appellant contends that PW17, who testified that the two
Saybolt documents were forged, was neither the maker nor
the signatory of the documents. It is also contended that
the persons whose signatures were allegedly forged were
not called as witnesses. The said documents were a part of
those which the Appellant submitted to the PPPRA in
support of the claim for fuel subsidy by Brila Energy Ltd, to
wit: Certificates of quality and quantity of the imported
fuel, (contained at pages 26 & 29 of Exhibit P1). It is
argued that from the evidence of the PW17, that he is an
employee and Country Manager of Corelab (Nig.) Ltd,
while Saybolt Nigeria is a Division of Corelab Nig. Ltd. The
contention is that the documents were not documents
which Saybolt Nigeria/Corelab Nig. Ltd authored, but were
authored by Saybolt Brazil. Nevertheless, the EFCC
requested PW17 to authenticate the documents. PW17
apparently scanned and e-mailed the documents to
Saybolt's Head office in
29
(201
8) LP
ELR-43
993(
CA)
Holland, which in turn forwarded same to Saybolt Brazil for
authentication, and Saybolt Brazil routed the response in
the same manner to PW17, who tendered them in evidence.
In the report, Exhibit P7, Saybolt Brazil stated that the two
documents were in respect of the job done in 2008 and not
a job. These correspondences were via e mail.
It is therefore submitted that the evidence of PW17 was not
based on facts within his personal knowledge and that the
report from Saybolt Brazil, Exhibit P7, was hearsay, and
therefore, they were inadmissible. Consequently, it is
contended that the learned trial Judge wrongly relied on
the hearsay evidence to find the Appellant guilty of forgery
and uttering of the two documents. Reliance is placed on
Section 126 of the Evidence Acts; Osho v State (2012) 8
NWLR (pt. 1302) 243 at 288-289, paras H-A; Gabriel v
State (2010) 6 NWLR (pt. 1190) 280; Utteh V State
(1992) 2 NWLR (Pt. 223) 257 at 273.
Secondly, it is submitted that where a document or report,
in this case Exhibit 7, should have been tendered by the
maker of the document who had personal knowledge of the
contents and can be cross-examined on same, is tendered
30
(201
8) LP
ELR-43
993(
CA)
through another without the maker being called as witness,
it lacks probative value. Belgore v Ahmed (2013) 8
NWLR (Pt. 1355) 100; Okonkwo v State (1998)
8 NWLR (Pt. 561) 210 at 258 are relied on.
Thirdly, it is therefore submitted that in cases of forgery,
the evidence of the person whose signature has been
forged is vital to the successful prosecution of the
Defendant. Reliance is placed on Alake v State (1992) 9
NWLR (pt. 265) 260 at 270 E-H. It is contended that, in
this case, the persons whose signatures were allegedly
forged on the Saybolt documents were not called as
witnesses.
Fourthly, it is submitted that the various correspondences
between Saybolt Nigeria/Corelab Nigeria Ltd, Saybolt
Holland and Saybolt Brazil on the alleged forgeries were
electronic-based and received via e-mail. They were
however tendered by the prosecution without complying
with Section 84(2) and (4) of the Evidence Act on the
authentication of the trustworthiness of the computers used
in corresponding.
For these reasons, it is submitted that the admission of
these documents in evidence and the probative value
ascribed to them are at variance with the decision
31
(201
8) LP
ELR-43
993(
CA)
of the apex Court in Kubor v Dickson (2013) 4 NWLR
(Pt. 1345) 534 at 577 para D, 578 para D. The Court is
therefore urged to hold that the trial Court wrongly relied
on the hearsay evidence of PW17, Exhibit P7 and the
inadmissible electronic based correspondences to arrive at
its decision that the Certificates of quantity and quality
were forged.
Additionally, it is argued that since PW17's evidence on the
alleged forgeries was based on the hearsay evidence, id est
Exhibit P7, it is incapable of being corroborated by any oral
or documentary evidence. Agenu V State (1992) 7 NWLR
(Pt. 256) 749 at 761, paras G-H; & Obiri v State
(1997) (pt. 513) 352 at 351, para F, 365 para E are
relied on, Thus, the finding of the trial Court on
corroboration constitutes a misdirection which resulted in a
substantial miscarriage of justice. The Court is therefore
urged to resolve this issue in Appellant's favour.
In response to the submissions of the Appellant, the
Respondent submits that while it is the rule that hearsay
evidence is not admissible, there are some exceptions to
the rule, and one of such is a business record. It is
submitted that it is an exception
32
(201
8) LP
ELR-43
993(
CA)
recognized under the Common Law now codified under
Nigeria Law in Sections 41 and 51 of the Evidence Act,
2011. It is contended that the request of the Respondent to
Saybolt to authenticate the documents contained at pages
26 and 29 of Exhibit P1 was for the company to examine its
records and determine whether or not the documents were
genuine. PW17 did this by forwarding the document to the
Head Office of Saybolt in Holland and its office forwarded it
to the office in Brazil. After the exercise, the Brazil office
forwarded its response back to Holland Head office and it
was subsequently forwarded to the PW17 at the company's
office in Nigeria. Thereafter, PW17 printed out the Report
Exhibit P7, and forwarded it to the Respondent.
PW4, an operative with the Economic and Financial Crimes
Commission (EFCC), testified that when he received Exhibit
P1 from the PPPRA in response to its inquiries, EFCC
studied it and found out that the company that was said to
have conducted the inspection at the Port of loading was
Saybolt Concremat. Based on this information, a copy of
the documents purportedly issued for the inspection
carried out on the mother vessel, MT
33
(201
8) LP
ELR-43
993(
CA)
Overseas Limar, issued ceftificates titled "Gasoline
Analysis" and "Certificate of Quality." They were therefore
sent to Saybolt Nigeria for authentication with a covering
letter, Exhibit P5. The reply received was Exhibit P7.
PW17, the Country Manager of Saybolt Nigeria Limited, a
Division of Corelab Nigeria Limited, testified that he
received Exhibit P5 from the EFCC requesting his company
to authenticate some documents in respect of a job carried
out by Saybolt Brazil on the vessel, MT Overseas Limar on
particular dates. He stated that since Saybolt had branches
all over the world and the job was not carried out in
Nigeria, he scanned the documents and sent them by e-mail
to the head office in Holland. The head office forwarded the
documents to the Saybolt office in Brazil. Subsequently,
Saybolt Brazil replied that the job/inspection referred to in
the documents was carried out sometime in 2008, and not
in 2010 as shown in the documents. PW17 compared the
attachments in Exhibits 6 and 7 and pointed out the
features in the two set of documents that were dissimilar.
On the contention of the Appellant that the evidence of
PW17 is inadmissible on
34
(201
8) LP
ELR-43
993(
CA)
the ground of hearsay, the Respondent submits that Exhibit
6, the letter from the EFCC, requested Saybolt Company to
authenticate some documents. It was therefore a request to
find out whether, based on the company's day to day
activities, such operations were performed by the company
and records were kept in that regard. It is submitted that
records kept by an organisation or business in their day to
day activities are business records which any of its
authorised officials, not necessarily the maker, can give
evidence of the contents of such documents. Therefore
PW17, an employee of Saybolt Nigeria Limited, can give
evidence of the record kept by Saybolt, even though he is
not the maker. The Court is therefore urged to hold that
Exhibit P7 was rightly admitted and acted upon by the trial
Judge.
On the submission that the certificate of trustworthiness of
the computer used was not tendered at the trial, it is
contended that PW17 actually prepared the Certificate of
Identification duly signed by him, (copies of which are at
pages 861 and 862 of the Record). Reliance is placed on
Dickson v Sylva (2017) 8 NWLR (pt. 1507) 167. In the
alternative, it is
35
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8) LP
ELR-43
993(
CA)
submitted that the e-mails were attached to a forwarding
letter sent to the EFCC. Reliance is therefore placed on the
decision in Orizu V Anyaegbunam (1978) NSCC 280 to
submit that, once the covering letter is admitted, the
attached documents are also admissible. It is not the duty
of the trial Court to separate the documents.
It is also submitted that that it is not in all cases that a
certificate of identification must be produced to make the
electronic document admissible as Section 84 of the
Evidence Act can be satisfied by the oral evidence of a
person familiar with the operation of the computer who can
give evidence of its reliability and such person need not be
a computer expert. Reliance is placed on R v Shephard
(1993) AC 380. It is therefore argued that PW17 by his
evidence on the manner in which he scanned, printed and
produced the e-mails attached to Exhibit P7 and sent them
to EFCC, satisfied this requirement that the computer used
is functioning properly, and thus satisfied the requirement
of Section 84(2) of the Act, The Court is therefore urged to
hold that the evidence of PW17 is not hearsay evidence and
Exhibits P6 and P7 were rightly
36
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8) LP
ELR-43
993(
CA)
admitted by the trial Court. In a brief reply on points of law,
it is submitted that the Evidence Act makes no exception
with respect to the certification of electronic devices used
in generating documents. Instead, all computer generated
documents must have certificates of trustworthiness of the
devices which produced them; and it does not matter that
they are attached to a covering letter or that they are
stand-alone documents.
It is further argued that while it is conceded that the case
of R V Shepherd (supra) applies and enables oral
evidence of the trustworthiness of the computer device to
be given, such oral evidence must be the testimonies of
persons who are familiar with the devices of Saybolt
Concremat of Brazil and Saybolt Holland which were
utilized to generate and forward the various electronic
correspondences. Since PW17 is not an employee of the
two foreign companies, he is not in a position to
authenticate the trustworthiness of these devices. Reliance
is placed on Ijioffor V State (2001) NWLR (Pt. 718)
371.
On the evidence of PW17 being an exception to the hearsay
evidence rule under the business record rule, it is
submitted
37
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8) LP
ELR-43
993(
CA)
that, granted that the business record exception applies,
the provision only enables an employee of the business
entity that made the document to tender entries in the
record, notwithstanding that such employee is not the
maker of the document. PW17 is not an employee of
Saybolt Concremat Brazil, but an employee of Saybolt
Nigeria Limited, (a Division of Corelab Nigeria Limited).
Reliance is placed Kate v Daewoo Enterprises (Nig) Ltd
(1985) 2 NWLR (pt. 5) 116; Anyaebosi v RT Briscoe
Ltd ((1987) NWLR (pt. 59) 84; & Union Beverages Ltd
v Pepsicola Int. Ltd (1994) 3 NWLR (pt. 330) 1at 16,
paras C-D.
Findings
Section 37(a) and (b) defines what constitutes hearsay,
both oral and documentary; while Section 38 expressly
states that hearsay evidence is not admissible except as
provided in the Act or any other Act. It is correct as
submitted, that Section 126(a) (d) of the Evidence Act,
2011provides 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;
38
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8) LP
ELR-43
993(
CA)
(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.
However, there are numerous exceptions to the rule, for
instance-
(a) Dying declarations under Section 39(a) - Alli V
Alesinloye (2000) 4 SC (Pt. 1) 111;
(b) Evidence of traditional and communal history of land
under Section 43 - Anka V Lokoja (2001) 4 NWLR
(Pt.702) 178;
(c) Admissibility of documents under Section 83 -
Anyaebosi V RT Briscoe (Nig) Ltd (1987) 6 Sc 15;
(d) Affidavit evidence under Section 108;
(e) Res Gestae under Section 4;
(f) Expert opinion under Sections 68-71; etc.
In addition, and more relevant to these deliberations,
Sections 41 and 51 of the Evidence Act provide as follows
"41. A statement is admissible when made by a person
in the ordinary counsel of business, and in particular
when it consist of any entry or memorandum made by
him in books, electronic device kept in the ordinary
course of business, or in the discharge of a
39
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8) LP
ELR-43
993(
CA)
professional duty, or of an acknowledgment written or
signed by him of the receipt of money, goods,
securities or property of any kind, or of a document
used in commerce written or signed by him, or of the
date of a letter or other document usually dated,
written or signed by him."
"51. Entries in books of accounts or electronic
records regularly kept in the course of business are
admissible whenever they refer to a matter into which
the Court has to inquire, but such statements shall
not alone be sufficient evidence to charge any person
with liability."
By this provision, a Court is permitted by law to admit in
evidence records, as was done in the instant case, which
records are said to have been meticulously kept in the
course of the business of a company, and the issues
relating thereto are brought before the Court upon an
inquiry. In such a case, it is immaterial that the maker of
the entries in the record does not testify in such a business
concern.
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 the company,
such an
40
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8) LP
ELR-43
993(
CA)
operation was performed by the company for Brila Energy
Ltd in 2010 in respect of the mother vessel MT Overeas
Limar sometime in 2010, and whether 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 bank) in respect of their day to day activities are
business records which any of its officers, and not
necessarily the maker, can give evidence of its contents.
PW17, the Managing Director of Saybolt Nigeria, explained
the process by which the report, Exhibit P7, was procured
from its sister company, Saybolt Concremat in Brazil
following the inquiry from the EFCC in Exhibit 5. The
Appellant did not before the trial Court or even before this
Court, contest that PW17 is not an employee/principal
officer of Saybolt, a Division of Corelab Nig. What he tried
to do instead in his cross-examination of the PW17 was to
suggest that Saybolt, a Division of Corelob Nig., had no
correlation with Saybolt Holland, the head office of Saybolt
and Saybolt Brazil, the particular company office in Brazil
which the
41
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8) LP
ELR-43
993(
CA)
Appellant, by the two documents submitted in Exhibit P1,
alleged had inspected the product on the mother vessel,
MT Overseas Limar in 2010. However, PW17 succeeded in
explaining the correlation between the companies, and
more importantly the report, Exhibit p7, established that
the counterpart of his company, Saybolt Brazil, did not
issue the inspection report attached to the bundle of
documents. In Exhibit P1. Consequently, the evidence of
PW17 and Exhibit 7 do not constitute hearsay.
It is also settled law that electronic evidence can be made
in the ordinary course of business of establishments like
bank and corporate bodies. The condition for the
admissibility of this kind of evidence is that the maker must
have made the statement contemporaneously with the
transaction recorded or so soon thereafter that the Court
considers it likely that the transaction was at the time still
fresh in his memory. This is also the import of Section 41 of
the Evidence Act.
The Appellant has also sought to impugn the integrity of
Exhibit 7 contending that the Respondent failed to tender
the certificate of trustworthiness of the computer used in
printing the documents, in compliance with Section 84(a) of
42
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8) LP
ELR-43
993(
CA)
the Evidence Act. However, where such a certificate is not
produced, it has been held that oral evidence of a person
familiar with the operation of the computer can be given of
its reliability and functionality; and that such a person need
not be a computer expert. See R v Shephard (1993) AC
380. This condition was satisfied by the testimony of PW17
on oath when he explained the process of how he scanned
the emails from Saybolt Concremat Brazil, produced and
printed them in colour and then sent them to the EFCC. I
therefore have no reason to interfere with the finding of the
trial Court in this regard. I resolve issue two in favour of
the Respondent.
Issue three - Whether the learned trial Judge was
right or wrong when she held that the prosecution
proved beyond reasonable doubt the offence of
forgeries of four Inspectorate Marine Services
documents (Exhibit P8) against the Appellant.
It is the contention of learned Senior Counsel for the
Appellant that the learned trial Judge misdirected herself
when she held that these documents, being (i) the
Certificate of cargo transfer dated 27th Jan. 2011; (ii) the
Certificate of Origin dated 27th Jan. 2011;
43
(201
8) LP
ELR-43
993(
CA)
(iii) the Cargo Manifest dated 27th Jan. 2011; and (iv) the
Certificate of quantity dated 27th Jan. 2011, were made by
Inspectorate Marine Services (Nigeria) because of the
company stamp on each of them. It is argued that the
documents are shipping documents whose authorship was
wrongly attributed to Inspectorate Marine Services
Nigeria. The company's stamp and signature on the
documents merely evidenced proof of the inspection
carried out in offshore Cotonou at the point of trans-
shipment of fuel from the mother vessel to the daughter
vessel. It is therefore submitted that PW5 is incompetent to
have given any reliable evidence on the making or forgery
of the document because his company was not the shipper,
but was merely alleged to have carried out the inspection of
the product on the vessels.
It is also contended that the evidence of PW5 in respect of
the stamp and signature on the documents is inconsistent
and contradicts the testimonies of other prosecution
witnesses. Assuming that Brila Energy Ltd claimed the
documents were authored or made by Inspectorate Marine
Services (Nigeria), the signatories to the four documents
did not testify. It is
44
(201
8) LP
ELR-43
993(
CA)
submitted that by law, the person whose signature was
forged is required to testify. PW5 acknowledged that one
Obi Uzo worked with the company and acknowledged email
correspondence between Uzo and the Appellant in respect
of the transaction, yet he was not called as a witness.
Therefore, it is contended that the testimony of PW5
created reasonable doubt in the prosecution's case.
It is further contended that the evidence of PW5, PW7,
PW8, PW13, PW14 and PW19 on the Inspection of the
product and the ship to ship (STS) transfer from the mother
vessel, MT Limar to the first daughter vessel, MT Delphina
and the 2nd daughter vessel, MT Dani 1, to the point of
discharge at Obat Farm Tank in Lagos, are inconsistent and
contradictory. Thus, that the trial Court ought not to have
believed any of the witnesses in proof of the fact that there
was no ship to ship transfer (STS) and inspection of the
imported petrol. It is therefore submitted that the
prosecution failed to prove forgery of the four documents in
question beyond reasonable doubt. The Court is urged to
resolve this issue in favour of the Appellant.
In response, learned Counsel for the Respondent
45
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8) LP
ELR-43
993(
CA)
states that the Appellant was convicted on counts 2, 4, 6, 8,
10 and 12 for forgery. In order to succeed, the Respondent
was required to prove the following ingredients of the
offence
i. that there is document or writing;
ii. that the document or writing is forged;
iii. that the forgery is by the accused person;
iv. that the accused person knows that the document or
writing is false; and
v. that the accused intends that the forged document be
acted upon to the prejudice of any person in the belief that
it is genuine.
Reliance is placed on Alake v State (1991) 7 NWLR (pt.
205) 567; Odiawa v FRN (2008) All FWLR (Pt. 439)
436; Babalola v State (1989) 4 NWLR (pt. 115) 264 at
277.
It is submitted that the documents referred to as forged in
counts 5, 8, 10 and 12 of the Charge relate to the
documents the Appellant presented to PPPRA as having
been issued by Inspectorate Marine Services (Nigeria)
Limited (contained at pages 19, 22, 27 and 30 of Exhibit
P1). In rebuttal, PW5, (the representative of Inspectorate
Marine Services (Nigeria) Ltd, testified that his company
never issued these documents.
PW5 identified Exhibit P9 as the
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8) LP
ELR-43
993(
CA)
46
(201
8) LP
ELR-43
993(
CA)
letter from his company in response to the EFCC's letter,
Exhibit P8, in which the company categorically stated that
the documents did not emanate from it. In addition, the
totality of the evidence adduced by the Respondent
disclosed that the transaction involving MT Overseas
Limar, which the documents purport to represent, did not
take place. PW5 gave five conditions for verifying whether
Inspectorate Marine Seruices were engaged to undertake
any job thus: (a) letter of nomination (b) response letter
accepting or declining the offer (c) record of the operation
in the Company Log Book (d) record of the invoice in the
account department and (e) specific unique number for the
job. However, that the Appellant did not lead evidence to
show that these five conditions were present or to show
that the Company, Brila Energy Limited, paid for the
inspection operation purportedly carried out by
Inspectorate Marine Seruices Limited. Instead, during the
cross-examination of PW5, Counsel to the Appellant alluded
to one Obi Uzor and the witness was shown a document
t i t l ed "Forward ing MT De lph ina Ana ly t i ca l
Report." However, this document was not tendered during
the trial.
47
(201
8) LP
ELR-43
993(
CA)
Therefore, the trial Court and this Court cannot speculate
on the contents of a document not before it.
It is further submitted that if the official stamp of
Inspectorate Marine was affixed on any of the documents in
Exhibit P1, and the company was not officially engaged to
carry out the operations on MT Delphina, such will still be
forgery, as was held by Musdapher, JSC in Nigeria
Airforce v Kamaldeen (2007) 7 NWLR (pt. 1032) 154
at 191, para G-H. Reliance is also placed on Babalola v
State (supra) ; & Emu V State (1980) 2 NCR 297 at
302.
It is further contended that the testimonies of PW1, PW2,
PW15 and PW16 are to the effect that the officials of both
PPPRA and DMO relied on these forged documents in
Exhibit P1 to compute and pay the subsidy of N963, 796,
199.85 to Brila Energy Limited. It is submitted that where a
document was used as an intermediate step in the scheme
of fraud in which the accused is involved, then if it is 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 exist that either the
accused forged the document with his own hand or
procured
48
(201
8) LP
ELR-43
993(
CA)
someone to commit the forgery. It is immaterial who
actually forged a document so long as an accused person is
a party to the forgery. Reliance is placed on Osondu V
FRN (2000) 12 NWLR (Pt. 682) 483; Hassan V Queen
(1959) SCNR 520 at 522 & Agwuna V AG Federation
(1995) 5 NWLR (Pt. 396) 418. The Court is therefore
urged to resolve this issue in favour of the Respondent.
Findings
The four documents which, by count 2, 4, 6, 8, 10 and 12 or
the charge, were alleged to have been forged, were
attached to Exhibit P1 (at pages 19, 22, 27 and 30) by the
Appellant as the presentation by Brila Energy Ltd for its
claim of fuel subsidy in proof of their assertion that the
Inspectorate Marine Services Nig. Ltd conducted
inspections during the ship to ship (STS) transfer from MT
Overseas Limar to MT Delphina in Brazil. PW5, a
representative of Inspectorate Marine Services Nig. Ltd,
denied that the documents emanated from them and denied
ever carrying out the purported inspection of the product
on those ships on the stated dates. He gave detailed
evidence of how, upon receipt of the inquiry from the EFCC
on the origin and authenticity of the documents in question,
a
49
(201
8) LP
ELR-43
993(
CA)
thorough check was carried out in the company to find out
whether or not the job was carried out by the company. The
company even set up a team of its officers to cross-check.
PW5 gave five conditions for verifying whether or not the
company was engaged to undertake any job as follows: (a)
a letter of nomination, (b) a response letter accepting or
denying the nomination, (c) a record of the operation in the
company log book, (d) a record of the invoice in the account
department, and (e) a specific unique number for the job.
Thus, from the investigation, PW5 testified as follows
"We don't have a record of this operation, and the
Accounts Department do not have any record of
invoice raised to that effect regarding those
operations. So, having gone through our records, we
concluded that we didn't do the operation."
Even under rigorous cross-examination, PW5 was
consistent in his evidence that there was a total dearth of
any record on the operation reflected in the four documents
ascribed to Inspectorate Marine Services. He totally
rejected the suggestion that the file in respect of the
operation may be missing and itemized checks put in place
by
50
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8) LP
ELR-43
993(
CA)
the company to guard against such loss as follows:
"No. First of all, we have a system of keeping records.
We have a record book, we have a filing system, we
have the secretary's record or production report, we
have the accounts. so we checked all these and we
don't have any record of them. It's not an issue of
missing file or something. we don't have the records,
Sir...
When we got that letter from EFCC, the company set
up a team. That team comprises several individuals
from all the departments, working together. So they
jointly went through the records before coming to
this conclusion."
It is significant that the evidence of this witness was in
respect of documents which the Appellant and the 2nd
Defendant themselves presented to the EFCC in an effort to
portray that the inspection in respect of the ship to ship
(STS) transfer of PMS from MT Overseas Limar to MT
Delphina was carried out by Inspectorate Marine Services.
Thus, the issue is not about whether the said documents
emanated from the shipper or from the Inspection
company, as suggested by the Appellant. The issue was
whether or not the information contained in the documents
that
51
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8) LP
ELR-43
993(
CA)
Inspectorate Marine Services carried out inspection
services of the cargo on both ships/vessels on the dates in
question, was true. 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, were both false and told lies about themselves.
These documents were held out by the Appellant and Brila
Energy Ltd to be true and genuine, 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 Brila Energy Ltd by PPPRA.
Thus, the elements of the offence of forgery of these
documents were undoubtedly proved, see Alake v State
(1991) 2 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 as follows:
"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
52
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8) LP
ELR-43
993(
CA)
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 decision, 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 in
purported confirmation that Inspectorate Marine Services
Nig. Ltd carried out the inspection of the operation in
respect of the ship to ship (STS) transfer from MT Overseas
Limar to MT Delphina. Thus, the combined evidence from
PW19 (an EFCC operative/investigator), PW17 (the Country
Manager of the Saybolt Companies in Nigeria) and now
PW5 (the representative of Inspectorate Marine Services
Nig. Ltd) is to
53
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8) LP
ELR-43
993(
CA)
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 itself knew nothing about
the operations in question), in order to deceive the Federal
Government of Nigeria into believing that there had been a
trans-shipment of PMS imported from Brazil via the MT
Overseas Limar into MT Delphina, as supervised and
verified by Inspectorate Marine Services. This is the import
of the decision of the Supreme Court in Nigeria Air force
V Kamaldeen (2007) 7 NWLR (Pt. 1032) 164 at 191,
per Musdapher, JSC (as he then was)
"The mere fact that the signatories on the cheque
(including the respondent) are the normal persons
designated to sign the cheque) does not make it
genuine when right from the beginning there was
intent to defraud. It has been held it is a forgery for a
registrar of a Court to issue a writ to
54
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8) LP
ELR-43
993(
CA)
the effect that an order was made for the sale of a
judgment debtor's property when no such order was
made. SeeEtim V The Queen (1964) All NLR 38."
See also Emu V State (1980) 2 NCR 297 at 303."
It has also been argued by the Appellant that no evidence
was adduced to prove that he forged the documents with
his own hand and that the signatories of the documents
were also not produced. It is the law 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 exist that either the accused forged
the document with his own hand or procured someone to
commit the forgery. It is immaterial who actually forged a
document so long as an accused person is a party to the
forgery. In Agwuna v AG Federation (1995) 5 NWLR
(Pt. 396) 418, the Supreme Court held per Iguh, JSC 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
55
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8) LP
ELR-43
993(
CA)
that all persons who are participles criminis whether
as principals in the first degree or as accessories
before or after the fact to a crime are guilty of the
offence and may be charged and convicted with [the]
actual commission of the crime." (Emphasis supplied)
See also Osondu v FRN (2000) 12 NWLR (pt. 682) 483;
& Hassan v Queen (1959) SCNR 520 at 522. For all the
reasons stated, I also resolve issue three in favour of the
Respondent.
Issue four - Whether the learned trial Judge was right
or wrong when she held that the prosecution proved
beyond reasonable doubt the offence of uttering two
Saybolt Concrement documents (at pages 26 & 29 of
Exhibit P1) and four Inspectorate Marine Services
documents (Exhibit P8) against the Appellant.
It is the submission of the learned Senior Counsel for the
Appellant that the prosecution failed to prove beyond
reasonable doubt that the two Saybolt documents and the
four documents of the Inspection Marine Services Nigeria
Ltd were forged, and that they were forged by the
Appellant in order to defraud the Federal Government of
Nigeria. Learned Senior Counsel adopts the arguments
under issues 2 and 3
56
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8) LP
ELR-43
993(
CA)
as part of the arguments under this issue. It is submitted
that the offence of uttering is akin to that of forgery, and
thus the same ingredients and punishment apply.
Therefore, where the documents are not proved to have
been forged, there can be no offence of uttering. However
to be guilty of the offence of uttering, the prosecution must
in addition prove that the defendant knowingly and
fraudulently uttered a false document. Odiawa V FRN
(2008) LPELR-4230; Alake V State (supra); & Nelson
Moore V FRN (2012) LPELR-19663 at 13 are relied on.
It is contended that the prosecution's evidence established
that the 2nd Defendant secured a facility from its Bank and
paid for the imported petrol. The evidence of PW14
established the existence of a shipper, shipping documents,
evidence of importation and discharge at the designated
Tank Farm. The documents were forwarded to the 2nd
Defendant's Bank by the suppliers' corresponding Bank
(Napa Petroleum to Enterprise Bank) via a courier
company.
It is further submitted that, that only six out of the seventy-
one pages in Exhibit P1 attracted the counts of uttering.
There is no evidence from any person
57
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8) LP
ELR-43
993(
CA)
alleging that his document or signature was forged and no
evidence from a handwriting expert to confirm the
forgeries. It is therefore submitted that the Appellant is
entitled to the benefit of doubt as the prosecution failed to
prove the offence of uttering beyond reasonable doubt, The
Court is thus urged to resolve this issue in favour of the
Appellant.
In response, learned Counsel for the Respondent submits
that the testimonies of PW5 and Pw17, as well as Exhibits
P7 and P9, go directly to show that the documents at pages
26, 29, 19, 22, 27 and 30 of Exhibit P1 were forged. In
proof of the offence of uttering, PW2 testified that the
Appellant personally (on behalf Brila Energy Ltd) submitted
Exhibit P1 to the PPPRA for the purpose of claiming the
fuel subsidy payment from the Federal Government of
Nigeria. Also, Exhibits P41 and P14 show that the
Defendants had direct knowledge of these forged
documents. Reference is made to a host of other evidence
revealing that the Appellant knowingly uttered these forged
documents. The Court is therefore urged to resolve this
issue in favour of the Respondent.
In a reply on point of law, it is argued that the
58
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8) LP
ELR-43
993(
CA)
evidence adduced by the prosecution was not direct
evidence of the Appellant's participation in the alleged
forgery of the shipping documents. Reliance is placed on
Adepetu V State (1998) 9 NWLR (Pt.565) 185; & Orji
V State (2008) 10 NWLR (Pt.1094) 31 to submit that,
before a Court can validly ground a conviction based on
circumstantial evidence, the evidence must be shown to
unequivocally, positively, unmistakably and irresistibly
point to the fact that the offence was committed and that it
was committed by the Defendant and no other person.
Findings
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 it is now established that the six documents in
question, made up of the two documents purported to be
from Saybolt Concremat in Brazil and the four documents
purportedly evidencing the inspection operations of the
trans-shipment between the vessels, M/T Overseas Limar
and M/T Delphina, by Inspectorate Marine Services were
forged, most of the ingredients
59
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8) LP
ELR-43
993(
CA)
of the offence of uttering of these documents have equally
been established. I therefore adopt my findings under
issues three and four above in respect of this issue. Indeed,
to establish the offence of uttering, the prosecution must
also prove that (a) the document/writing was false; and (b)
the false document was knowingly and fraudulently
uttered. This question of whether the Appellant knowingly
and fraudulently uttered these false documents was also
answered under the previous issues in this Judgment.
However, no harm will be done in reiterating them. The
Criminal Code of Lagos State defines uttering to include -
"using or dealing with, and attempting to use and deal with,
and attempting to induce any person to use, deal with, or
act upon the thing in question..." It is an indisputable fact
that the Appellant, as the Managing Director/Chief
Executive Officer of Brila Energy Ltd, compiled and
submitted the bundle of documents attached to the
covering letter written under his hand, (at page 3 of Exhibit
P1), for the sole purpose of claiming and being paid a
subsidy for the importation of PMS from Brazil by the
Federal Government of
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Nigeria. The Respondent adduced evidence through the
officers of the following agencies: EFCC, Petroleum
Products Pricing Regulatory Agency (PPPRA) and the Debt
Management office (DMO) which established that the
subsidy calculated and paid to the Appellant and Brila
Energy Ltd was based on the entire documents submitted
by the Appellant, inclusive of these six forged documents.
From the un-controverted 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,
imported and supplied as claimed in the documents. The
Appellant knew that the documents at pages 19, 22, 26, 27,
29 and 30 were forged, and yet he deliberately and
intentionally presented them to the PPPRA, upon which the
subsidy of N963, 796, 199.85k was paid by the Federal
Government of Nigeria to 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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This issue is also resolved in favour of the Respondent.
Issue five - Whether the learned trial Judge rightly
admitted in evidence and relied on the internet print-
o u t c o p y o f L l o y d s L i s t o f I n t e l l i g e n c e
Report/Database (Exhibits P23-25) as well as the
hearsay testimony of PW9 who tendered same in
evidence, for the purpose of establishing the truth of
the prosecution's case/allegation that the Mother
Vessel MT Limar was not at the port of loading and
point of trans-shipment at the relevant times stated
in the bills of lading.
The manner in which the Appellant framed this issue is no
doubt already skewed/slanted to suggest that the testimony
of the PW9 is hearsay. Factually, from the Judgment of the
trial Court which subsists until set aside by a competent
Court of jurisdiction, this is not the position. It is for this
exact reason that the Appellant is making this challenge in
the Appeal now under consideration. Thus, this Court will
consider the issue as follows: whether the learned trial
Judge was right when she relied on the evidence adduced
through the PW9 and the Lloyds List of Intelligence Report,
(Exhibits P23-25) to find that the mother vessel, MT
Overseas Limar
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(submitted by the Appellant in Exhibit P1) was not at the
point of loading in Sao Sabastio in Brazil; and did not
participate in the ship to ship (STS) transfer with the
daughter vessel, MT Delphina at offshore Cotonou, also as
represented by the Appellant in Exhibit P1.
Learned Senior Counsel for the Appellant submits that in
order to prove that the 2nd Defendant did not import fuel
from Brazil PW9, an operative of the EFCC, gave evidence
which was based on information she obtained from Lloyds
List Intelligence database on the movement of vessels. It is
the Appellant's contention that the evidence of PW9 was
not the product of her personal knowledge. She testified
that the mother vessel i.e. MT Overseas Limar, was not in
Brazil on the alleged loading date, neither was it on the
West African Coast on the alleged date of transhipment to
MT Delphina. The Appellant however argues that PW9 was
neither in Brazil nor on the Coast of West Africa on the
relevant dates so as to competently testify on the presence
or absence of MT Overseas Limar at the two locations and
to conclude, on the strength of the Lloyds Intelligence
database on the movement of vessels, that the Saybolt
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document and other associated documents (at pages 26 &
28 of Exhibit Pl) were forged and uttered by the Appellant.
Relying on Section 126 of the Evidence Act, it is submitted
that the evidence of PW9 is hearsay and so inadmissible for
the purpose of proving the allegations of forgery and
uttering of the documents by the Defendants. The reasons
for this are that PW9 was never in the employment of
Lloyds Shipping Agency (the publisher of the report on
movement of vessels); she did not upload the information
on the movement of MT Limar to the database, and that as
a result, her evidence is inadmissible.
It is further contended that the officials of Lloyds Agency
who uploaded the information and who have personal
knowledge of Exhibits P23 and p25 did not testify and so
were not subjected to cross-examination on the accuracy or
otherwise of the said information which was accessed by
PW9. It is also contended that PW9 agreed under cross-
examination that the Lloyd's report is not immune from
error. The Report was also not certified by Lloyds. It is
therefore submitted that the evidence of PW9 and Exhibits
P23 and P25 were inadmissible on the ground of
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hearsay. In addition, it is contended that other pieces of
evidence are incapable of corroborating such inadmissible
evidence. Agenu v State (1992) 7 NWLR (pt. 256) 749
at 761, paras G-H is relied on.
It is further submitted that the downloaded information
accessed from Lloyd's Intelligence Database are electronic
based/computer generated. However, that the prosecution
failed to comply with the mandatory requirements of
Section 84(2) & (4) of the Evidence Act on the certificate of
trustworthiness of the computer which produced the
information that was uploaded to Lloyds Intelligence
database on the movement of vessels. Kubor v Dickson
(supra); & Omisore v Aregbesola (2015) 15 NWIR (Pt.
1482) 294 are relied on. On account of this, the Exhibits
are inadmissible and ought not to have been countenanced
by the trial Court.
It is further contended that PW9, who gave oral evidence
and tendered the documents produced by the computer,
has no personal knowledge of the information in Exhibits
P23 and P25. Therefore, that the electronically generated
documents are inadmissible. The fact that a document is
computer generated evidence does not pave way
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for its admissibility automatically without complying with
the provisions of Section 83 of the Act. Reliance is placed
on FRN V Fani Kayode (2010) 14 NWLR (Pt. 1214) 481
at 497 para G, 498 paras G-H; & 499, G-H which deals
with the admissibility of a statement contained in a Bankers
Book as secondary evidence. The Court is therefore urged
to resolve the issue in the Appellant's favour.
In response, learned Counsel for the Respondent submits
that in the booklet submitted by the Appellant for the fuel
subsidy claim on behalf of Brila Energy Limited (Exhibit
P1), the Appellant claimed that he imported the PMS from
Petrobras in Brazil and shipped it through the mother
vessel, M/T Overseas Limar, from port of Sao Sebastiao in
Brazil on November 22, 2010. Thereafter, that the mother
vessel had a ship to ship (STS) transfer with the daughter
vessel on January 27, 2011 and that the 2nd daughter
vessel, M/T Dani 1, had a ship to ship (STS) transfer with
M/T Delphina offshore Cotonou on March 1, 2011, before
M/T- Dani 1 finally discharged the cargo at Obat Terminal
on March 9, 2011. PW19 reduced the claim made by the
Appellant into a chart (at page 2 of Exhibit p38).
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It is submitted that PW9 testified that in order to ascertain
whether the vessels M/T Overseas Limar, M/T Delphina and
M/T Dani 1 were at the locations claimed by the Appellant,
the Respondent subscribed to the Lloyds List Intelligence
database to find out the position/location of these vessels
on the dates in question. The Lloyds List Intelligence
database is available to subscribers. A subscriber pays and
a user name and password are issued to enable the
subscriber access the website. EFCC subscribed to the
Lloyds List of Intelligence website after paying the
requisite fees and it was given a user name and a
password. PW9 was the Desk Officer responsible for
conducting the investigation into the location of the
vessels, using the Lloyds List Intelligence. From her
investigation, M/T Overseas Limar was in port Everglades
in the United States of America between 26th and 27th of
January and not at offshore Cotonou; that M/T Delphina
was at Tin Can Island between 15th and 17th of January,
2011; and also that M/T Dani 1 was at Tin Can Island
between 3rd and 9th of March, 2011.
PW9 downloaded her findings from the Lloyds' website in
respect of M/T
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Overseas Limar, M/T Delphina and M/T Dani 1 into her
computer and printed the copies that were admitted in
evidence as Exhibits P23, P24 and P25. The certificate of
identification in respect of the computer that was used to
download and print these documents was also admitted in
evidence as Exhibit p22.
It is submitted that the Lloyds List intelligence report is a
business record admissible under Sections 41 and 51 of the
Evidence Act 2011, which records are an exception to the
hearsay rule. It is further submitted that PW9 did not rely
on Exhibits p23 to P25 alone, as she testified orally to these
facts as well as demonstrated how she accessed
www.lloydsintelligence.com before the trial Court by
accessing the internet using her laptop, internet service
and a projector. This was in compliance with Section 87(c)
of the Evidence Act which provides for "copies made from
or compared with the original". It is submitted that the
original is what was displayed on the projector using the
internet, while the copies are Exhibits P23 for M/T
Overseas Limar, Exhibit P24 for M/T Delphina, and Exhibit
P25 for M/T Dani 1. Exhibits p23, P24 and P25 are
therefore
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secondary copies of the original within the meaning of
Section 87(c) of the Evidence Act. Section 258 of the
Evidence Act recognizes a computer record as a book, and
Section 51 of the Act recognises such record as admissible
in evidence.
It is also submitted that the testimony of PW8 confirmed
the accuracy of the Lloyds report as regards Exhibit P23;
and same applies to Exhibits P28, P29 and P30 from Daddo
Maritime, the owner of Dani 1. The testimony of PW13 and
the Exhibit P33 also support and corroborate the contents
of Exhibit P24 on the location of Delphina, as well as the
Greek documents admitted as Exhibit P41. It is therefore
submitted that the evidence of PW9 was the evidence of the
business record about the movement of ships worldwide
kept by Lloyds and made available to business
organisations or individuals who subscribed to it. Further
reliance is placed Counsel's submissions on this point
under issue two.
It is further submitted that it is not only the maker of a
document can tender it in evidence. Reliance is placed on
Abubakar v Chuks (2007) 18 NWLR (pt. 1066) 385;
Torti v Ukpabi (1984) 1 SC 370; & Obembe v Ekene
(2001) 10 NWLR (Pt.722) 677.
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On the submission that the Lloyd Report is not immune to
error, it is submitted that the fact that the report located
accurately the positions of MT Dephina and MT Dani 1
show that the report was accurate and business record.
There is no contrary evidence from the Appellant on this.
On the submission that the Respondent did not certify the
computer utilised in the production of the reports on the
movement of the three vessels, and that Exhibit P22 did not
satisfy the requirement of certification stipulated in Section
84 of the Evidence Act, reliance is placed on the decision of
the Supreme Court in Dickson v Sylva (2017) 8 NWLR
167 at 216, paras A-B. The certificate, Exhibit P22, is
thus admissible under Section 84(2) of the Evidence Act
and satisfied the requirement of Section 84(2) and (4) of
the Evidence Act since it is the computer that was used as
part of the production, in the sense that it first downloaded
the information into the computer before it was printed out.
The Court is therefore urged to resolve this issue in favour
of the Respondent.
In the Reply Brief, learned Senior Counsel largely rehashed
his submissions on the
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requirement of certification of the computer under Section
84 of the Evidence Act. It is further argued that, even if
Sections 41 and 51 of the Act apply, the fact that Exhibits
P23-P25 is a business record of Saybolt Concremat of Brazil
does not exempt it from the requirement of mandatory
certification of the devices which produced the statement.
Also, that the document can only be tendered either by its
maker, to wit: the person who supplied the information to
the Lloyds device or any other person in the employment of
Lloyds, and not PW9, an EFCC operative. Reliance is placed
on Okonji v Njokanma (1991) 7 NWLR (pt. 201) 131 at
145, paras G-H.
It is also submitted that Sections 41 and 51 of the Evidence
Act does not apply to Exhibits P23 and P25 because they
are not entries in the book of accounts of Lloyds. They were
tendered as evidence of movement of various vessels at
various times. They cannot therefore be relied upon under
the business record exception. In addition that there was
no corroborative evidence which confirms the truth of such
entries as prescribed by Section 51. First Bank of Nigeria
Plc v Mamman Nigeria Ltd (2001) FWLR (pt. 31)
2890 is relied on.
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It is also submitted that the oral evidence of PW9 and the
demonstration in Court as to how the information was
sourced from Lloyds' List using her computer via the
internet service cannot serve as corroboration of Exhibits
P23 and P25 because it violates the rule against self-
corroboration which prescribes that the evidence sought to
be corroborated and the corroborating evidence must be
separate and independent of each other. Section 34(2) of
the Evidence Act; R V Whitehead (1929) 1 KB 99;
Ughneyovwe v State (2004) 12 NWLR (pt. 888) 626; &
Ukershima v State (2003) FWLR (pt. 137) 1117 are
relied on.
It is further submitted that the information projected by
PW9 in Court is not primary information because it
projected information which had already been produced
and uploaded to Lloyds' website. Both the projection and
the Exhibits P23 and p25 are copies made from information
in Lloyds' device. Thus, the exercise in open Court is
immaterial to the status of the evidence.
Furthermore, it is contended that in the case of Dickson v
Sylva (supra), it centered on whether the electronic
projector which the Respondent applied to use in
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playing the already admitted computer generated DVD
required certificate of trustworthiness and the apex Court
held that it did not. It is therefore inapplicable to the facts
of this case where the PW9 is not an employee of Lloyds
which produced the information on the movement of
vessels and so could not have certified the trustworthiness
of the devices which produced the information uploaded to
Lloyds website, and could also not authenticate the
accuracy of the information which was not within her
personal knowledge.
Findings
It is indeed the law as provided under Section 83 of the
Evidence Act, 2011 that, in a proceeding where direct oral
evidence of a fact would be admissible, any statement made
by a person in a document to establish that fact shall only
be admissible as evidence of that fact if the conditions
contained in paragraphs (a) to (d) thereof are satisfied.
Section 84(1) is more specific on the nature of evidence
when it provides inter alia as follows-
"84(1) In any proceeding, a statement contained in a
document produced by a computer shall be
admissible as evidence of any fact stated in it of
which direct oral evidence would be
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admissible, if it is shown that the conditions in
Subsection (2) of this section are satisfied in relation
to the statement and the computer in question."
By the opening chapeau of this provision, computer
generated documents are caught by the admissibility
requirements of this provision. The relevant phrase here is
"a statement contained in a document produced by a
computer". The draftsman did not leave the meaning of the
word "computer" to conjecture. In Section 258(1), the Act
defines "computer" to mean "any device for storing and
processing information, and any reference to information
being derived from other information is a reference to its
being derived from it by calculation, comparison or any
other process". What this means is that, the Exhibits
P23-25, being computer-generated documents, could only
be admissible in evidence upon compliance with the
requirements of Section 84 (supra), and not Section 83
(supra). Therefore, the learned trial Judge was right when
she relied on the legal maxim - enumeratio unius est
exclusio alterius, which means the specification of one
thing is an exclusion of the other. Thus, I am also of the
view that when it
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comes to computer-generated documents, the provision of
Section 83 has been excluded.
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 are
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.
There is abundant evidence on record to show that the
PW9, in tendering Exhibits 23 to 25, satisfied these
conditions. PW9 testified extensively on this 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.
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Another condition for the admissibility of electronic
evidence under Section 84(4) of the Act is that an
authentication certificate of the computer/device used in
producing the documents should be produced. 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 be 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
listening to his oral testimony.
Section 84, which is similar to Section 69 of UK PACE
1984, does not require the prosecution to show that the
statement 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
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processed, stored and reproduced whatever information it
received. It is majorly concerned with the integrity of the
computer, in other words, the way in which the computer
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.
If an authentication certificate is relied on, 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 position
to give reliable evidence about the operation of the
computer. The nature of the evidence to discharge the
burden of showing that there has been no improper use of
the computer and that it was operating properly will
inevitably vary from case to case. See R v Shepard (1993)
2 WLR 102. There is no single approach to authentication
applicable across board. Instead, the most appropriate form
of authenticating electronic evidence will often depend on
the nature of the evidence and the circumstances of each
particular case. However, such evidence may also be
authenticated by direct testimony from a witness with
personal knowledge, by comparison with
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other authenticated evidence, or by circumstantial
evidence.
In the instant case, PW9 tendered Exhibit 22 authenticating
the computer she used in accessing the information from
Lloyds' Intelligence Database and producing the print-outs
of the Lloyds Intelligence List Report in the documents
admitted in evidence as Exhibits 23-25. On the submission
of learned senior counsel on behalf of the Appellant that
the Exhibit 22 did not satisfy the requirement on
certification of the computer 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 data base. For ease of reference,
Exhibit 22 attested inter alia as follows
"I Olanubi Tolulola of the Economic and Financial
crimes commission, attached to the special Team on
petroleum subsidy (STPS)... to the best of my
knowledge and belief state as follows:
1. That Lloyds List intelligence vessel Movement
reports marked as 1-6
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w a s a s s e s s e d f r o m L l o y d s w e b s i t e -
www.llyodslistintelligence.com between the 5th and
11th of June, 2012 and downloaded into an Hp laptop
computer. The computer is regularly used to store
and process information related to investigation
activities of the Commission.
2. Over the period when the document was produced,
information of this kind was regularly supplied to the
computer in the ordinary course of investigation
activities and the said computer was operating
property over that period of time.
3. I attest to the information produced as being a true
and accurate record of what was produced by the said
computer."
This is therefore in tandem with the production processes
approved by the Supreme Court in Dickson v Sylva
(2017) 8 NWLR (pt. 1567) 167, wherein Galadima, JSC
held inter alia thus
"From the above provisions, it is crystal clear that it is
only with respect to the computer that "produces" the
document, in this case the DVD (Exhibit P42B) that
ought to be certified."
It has earlier been stated in the body of this Judgment that
under Section 41 of the Evidence Act, 2011, there is an
exception to the hearsay rule that
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relates to electronic evidence when it is a statement made
in the ordinary course of business. The provision of Section
41 has already been set out previously and so it is not
necessary to repeat it here. 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. It must however be noted that for
a document to be admitted as a business record, there must
be some evidence of a business duty to make and regularly
maintain a record of that type.
It has also been canvassed by the Appellant that the pw9
was not the maker of the said document referred to as
Lloyds' List report which was tendered through her.
However, from the totality of the evidence of the pw9, it is
evident that Exhibits P23-P25 downloaded from the Lloyds'
List Intelligence database is a business record about the
movement of ships worldwide kept by Lloyds and made
available to business organizations or individuals who
subscribed to it by payment of prescribed fees. It is
therefore admissible under Sections 41 and 51 of the
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Evidence Act, 2011. Consequently, such a record is an
exception under to the hearsay rule.
It is also the contention of the Appellant that the said
Lloyds, List report 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 MT
Overseas Limar, not being an employee and/or officer of
the Lloyds organization. However, as aforesaid, 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.
Thus, I agree with the learned trial Judge that the Lloyds,
List Intelligence report admitted in evidence as Exhibits
23-25, falls within the category of a business record made
in the ordinary course of business of the Lloyds'
organization; and that Exhibit 22 (the certificate of
trustworthiness of the computer used by pw9 in producing
the Lloyd's Intelligence List report) satisfied the
requirements in
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Section 84 (2) and (4). Thus, the reliance of the trial Court
on the information contained in Exhibits 23-25 to establish
the fact that M/T overseas Limar was not at the point of
loading at port Sao Sabastio in Brazil and also did not
participate in the ship to ship (STS) transfer with M/T
Delphina at offshore Cotonou, as presented in Exhibit P1,
was proper and appropriate.
Indeed, as rightly pointed out by the Respondent, the
evidence contained in these exhibits accurately gave the
location of M/T Delphina and M/T Dani 1 as presented by
the Appellant himself in the Exhibit P1. Thus, the only area
of contention is that there was no ship to ship (STS)
transfer from the M/T overseas Limar to M/T Delphina
between 26th to 27th January, 2011 because M/T- Overseas
Limar was not at the location it was touted to be, i.e. at
offshore Cotonou, but was at Port Everglades in the United
States of America on the dates in question. Thus, giving a
lie to the Appellant's presentation in Exhibit P1 that Brila
Energy Ltd imported 13, 155.80 metric tons of PMS on M/T
Overseas Limar from Port Sao Sabastio in Brazil which was
subsequently trans-shipped into M/T Delphina at
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offshore Cotonou on the dates in question.
Finally, with regard to the submission that the Lloyds'
Intelligent report is not immune from error or footproof,
the learned trial Judge in her Judgment (at page 7454 of
the Record of Appeal) categorically stated that this alleged
evidence from the PW9 is not reflected in the electronically
recorded and transcribed Record of the trial Court. I also
did not see it in the Record of Appeal. The submissions
thereon by both parties are consequently discountenanced.
Therefore, for all the reasons afore-stated, I resolve issue
five also in favour of the Respondent.
Issue six - Whether the learned trial Judge rightly or
wrongly admitted in evidence and accorded 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 of fuel
by the 2nd Defendant and non-STS transfer of fuel by
the mother vessel MT Overseas Limar to the 1st
daughter vessel Delphina.
Under this issue, it is the submission of learned senior
counsel for the Appellant that the Documents in Exhibit
P41
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in respect of the transactions between Brila energy Ltd
(2nd Defendant) and Marvin Shipping Agency concerning
the chartering of M/T Delphina were originally in Greek
Language and were translated into English Language; and
the said bundle of documents was certified by the EFCC. It
is contended that the certification of Exhibit P41 series and
other certified true copies tendered by the prosecution do
not reflect the amount of money paid for the certification,
and so, being public documents, they are inadmissible in
evidence and ought not to have been admitted. Reliance is
placed on Tabik Investment v GT Bank (2011) 17
NWLR (pt 1276) 240 at 258 F-G; Kubor v Dickson
(2013) 4 NWLR (Pt. 1345) 534 at 577-578, paras D-D;
Omisore v Aregbesola (2015) 15 NWLR (Pt. 1482)
294.
It also submitted that the translators/interpreters of the
documents/statements in respect of the investigations from
Greek language to English language were not called to
testify for the purpose of identifying the two versions of
statements and documents. It is further submitted that the
authentication of the documents by the Nigerian Embassy
in Greece is not a substitute for the presence of the
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translator of the documents. Thus, it is contended that the
learned trial Judge wrongly applied the presumption in
Section 167 of the Evidence Act namely, that official acts
are presumed to have followed due process. It is submitted
that the failure of the translator/interpreter to testify is
fatal to the prosecution's case as it renders the documents
in Exhibit P41 inadmissible on the ground of hearsay.
Reliance is placed on FRN V Usman (2012) 8 NWLR (pt,
1301) 141 at 163, paras D-E; 160, paras B-D;
& Nwaeze v State (1996) 2 NWLR (Pt. 428) 1 at 20.
It is further submitted that since Exhibit P41 contains a raft
of e-mails allegedly exchanged between the 2nd Defendant
and Marvin shipping Agency Limited, (the alleged
charterers of M/T Delphina at the material time of
transhipment from M/T Overseas Limar), they were
electronically generated and thus compliance with the
requirements of Section 84 of the Evidence Act on the
certificate of trustworthiness of various computers/devices
which produced the electronically generated documents
was necessary. Having not been tendered, the various e-
mails were inadmissible in evidence and ought not to have
been
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admitted; and where admitted, probative value ought not to
have been accorded to them. Kubor v Dickson (2013) 4
NWLR (pt. 1345) 534 AT 577-578, paras D-D; Omisore
v Aregbesola (2015) 15 NWLR (pt. 1482) 205 at 295,
para F are relied on.
In addition, it is submitted that whereas Exhibit p41
contains witness statements under oath of prosecutors and
investigators in Greece, the deponents were neither called
as witnesses by the prosecution nor were the statements
adopted at the trial Court by their makers. This constitutes
an abandonment of the statements by the deponents and
prosecution. In the circumstance, it is contended that the
statements lack probative value and should not have been
relied on. On the finding of the trial Court that it would be
expensive and would cause delay for officers of the Greece
Ministry of Justice, prosecutors of the Greek Court and
other officials connected with the report to be brought to
Court to testify, it is submitted that this finding is
unsupported by relevant evidence. Isamade v Okei (1998)
2 NWLR (pt. 538) 455 at 468, para G; Obulor v Oboro
(2001) 8 NWLR (Pt. 714) 25 at 32, para D are relied on.
The Court is therefore urged to hold that learned trial
Judge wrongly
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admitted the documents contained in Exhibit P41 and to
disregard same. The Court is urged to resolve the issue in
Appellant's favour.
In response, learned counsel for the Respondent submits
that PW19 testified that, following the revelation by their
investigations that the Broker of the vessel M/T Delphina,
Marvin Shipping Inc., was based in Greece, the Attorney
General of the Federation and Minister for Justice sent a
request for Mutual Legal Assistance into the role played by
Marvin shipping Inc. based in Greece to the Minister of
Justice, Ministry of Justice, Transparency and Human
Rights in Greece. This request was made pursuant to the
United Nations convention against Transnational organised
crimes, in terms of Exhibit P40. When the Greek
Authorities concluded their investigations, the Greek
Government sent its report to the Nigerian Embassy in
Greece. The Nigeria Ambassador in Greece, under a
covering letter, forwarded the documents, Exhibit P41, to
the Executive chairman of EFCC. In his covering letter, he
stated that the documents attached to Exhibit p41 were
both in Greek and English Languages.
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Exhibit 41 is therefore a document which is a product of
investigation conducted by the Greek Government at the
request of the Attorney General of the Federation on behalf
of the Federal Government of Nigeria.
It is submitted that the Nigerian Ambassador to Greece
also authenticated Exhibit P41, that the document is the
translation of both the Greek and English Languages.
Reference is made to Section 168 of the Evidence Act on
the presumption of regularity of judicial or official acts. It is
submitted that the Appellant did not show that the formal
requirements for the investigation into the request of the
Federal Government of Nigeria were not complied with by
the Greek Government in the report compiled into the
booklet, Exhibit p41.
It is further submitted that the content of pages 14-15 of is
not a deposition, but a Court proceeding conducted before
the Piraeus Magistrate Court-Z Investigation Department
presided over by Judge Vasiluos Tzelepis and the Court
secretary, Theofano Zampet. The witness, Mr. Athanasios
KaeriraKidis, the representative of Marvin shipping Inc.,
appeared before the Court and gave evidence on oath. He
also made a written
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statement (pages 16-17 of Exhibit p41). It is therefore
submitted that the document is a transcript of Court
proceedings, and not just a statement on oath.
Furthermore, reliance is placed on Section 149(b) of the
Evidence Act to submit that it is the law in Greece that is
applicable to the admission of Exhibit p41. The proceedings
were conducted in Court where the witness made a
statement and was examined by the presiding Judge. The
document was forwarded through official channels by
means of 'Verbal Note' and was authenticated in Greek
Language and English Language. It is therefore submitted
that the lower Court was right to have presumed that the
document was validly produced under the relevant Laws
relying on Sections 145, 146(1) and 167 of the Evidence
Act.
In addition, the Respondent refers to the testimony of pw19
on the difficulty of locating Marvin shipping services Inc,
which was the Broker of the ship M/T Delphina, and which
was eventually located in Greece. It is contended that this
was the reason for the request for Mutual Legal Assistance
made to the Greek Government. It is submitted that the
testimony of pw19 on this issue is enough
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to infer that it will be expensive and also would occasion
delay to procure the witnesses from Greece to testify
before the trial Court. In addition, the finding of guilt of the
Appellant by the trial Court was based on other pieces of
evidence, apart from Exhibit 41.
On the submission that the Respondent did not pay for the
certification of Exhibit P41, Reliance is placed on Aminu
Sule Lamido v Federal Republic of Nigeria Appeal No.
CA/K/436/C/2013 at 21 to 22, per Abiru JCA where this
Court held that the payment of fees for certification can
only be made if there is a fee prescribed for such
certification. The Court is therefore urged to hold that the
certification of Exhibit p41 is valid.
In the Reply Brief, the submissions of counsel bordered
mostly on facts and not on new issues of law that may have
arisen in the Respondent's Brief. It is however also
submitted that the testimony of PW13 is self-contradictory,
inconsistent hearsay and unreliable. Therefore, the
Defendant was not obliged to controvert their evidence by
calling any witness. However, the trial Court is obliged to
examine the evidence to determine if it established the
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prosecution's case beyond reasonable doubt. Where the
evidence is challenged and rendered doubtful, the fact that
it is not controverted by contrary evidence will not render it
cogent or weighty. Oforlete v State (2000) 12 NWLR
(pt. 681) 415; Bendel Pilgrims welfare Board V Irawo
(1995) 1 NWLR (Pt. 369); MIN Ltd v MFKWA Ltd
(2005) 10 NWLR (pt. 934) 645 are relied on.
On the status of the documents in Exhibit P41 as Court
proceedings, it is submitted that where Court proceedings
were conducted without the Appellant being afforded the
benefit of a hearing, such proceedings conducted in Greek
language and later translated to English language violate
the Appellant's right to fair hearing, and consequently the
documents are inadmissible as against the Appellant. Also,
a Court ordinarily lacks the vires to rely on the evidence of
a witness in a previous proceeding to decide the issue
before him where such a witness has not testified before
him and proper foundation on the reason why such witness
is unable to testify has not been laid. Reliance is placed on
Sections 39 and 46 of the Evidence Act; Onu v Idu (2006)
All FWLR (pt. 328) 691 at 708 SC; & Ikenyi V
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Ofune (1985) 2 NWLR (pt. 5) 1 at 16.
It is further submitted that documents in respect of such
Court proceedings require proper certification and
tendering of same as certified true copies as prescribed by
Section 106(h) (i) of the Evidence Act. It is also argued that
the decision of this Court in Aminu Sule Lamido v FRN
(supra) is misplaced and runs contrary to the decision of
the apex Court inTabik Investment Ltd v GT Bank Plc
(2011) NWLR (pt.1276) 262 at 1608.
Findings
This issue challenges the admission in evidence of the
Exhibit p41 series, being documents made in Greece in
Greek language and subsequently translated into English
language; and the ascription of probative value to them by
the learned trial Judge. The first area of contention is that,
whereas the documents in the Exhibit 41 series were said
to have been certified as true copies by the EFCC who
received them from the Greek Government via the Embassy
of Nigeria in Greece, the document does not disclose the
amount of money paid for the certification. It is argued that
this is in contravention of the provisions of the Evidence
Act on the requirements of certification of public
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documents. It is submitted that the documents were
therefore inadmissible in evidence and should be
disregarded. The law regulating the certification of public
documents is as set out in Section 104 of the Evidence Act,
2011 and it provides as follows -
"104(1) Every public officer having the custody of a
public document which any person has a right to
inspect shall give that person on demand a copy of it
prescribed in that respect together with a certificate
written at the foot of such copy that it is a true copy
of such document or part of it as the case may be."
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
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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 must pay the prescribed fees
before same are issued.
A close scrutiny of the Exhibit P41 series discloses that
they bear all the requirements for certification, save the
evidence of payment of fees for certification. However, the
evidence before the trial Court is that the documents
emanated from the EFCC, having received them as a direct
response to their request for assistance under the Mutual
Legal Assistance agreement between the Government of
Nigeria and the Government of Greece. They were also
tendered through an operative of the EFCC, PW19. From
the uncontroverted evidence, the request for Mutual Legal
Assistance from the Greek Government was initiated by the
EFCC through the office of the Hon. Attorney General and
Minister for Justice of the Federal Republic of Nigeria -
Exhibit p40. Excerpts from the letter state as follows -
"REQUEST FOR MUTUAL LEGAL ASSISTANCE IN
THE MATTER OF INVESTIGATIONS
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INTO THE PETROTEUM SUBSIDY FRAUD AGAINST
BRILA ENERGY LIMITED
The Federal Republic of Nigeria wishes to present its
compliments to the Republic of Greece and in the
same manner, I have the honour to make this request
for mutual legal assistance pursuant to The United
Nations Convention Against Transnational Organised
crimes ("TOC convention') adopted on 15th
November, 2000. Both Nigeria and the Republic of
Greece are parties to the TOC Convention which
enjoins all State parties to accord each other the
widest range of assistance possible, and the
international Law Doctrine of Reciprocity scheme
Relating to Mutual Legal Assistance in Criminal
Matters.
...........................
6.2 In order to do this, the Federal Government of
Nigeria would require the authorities of the
Government of the Republic of Greece to take steps
within the laws of the Republic of Greece to execute
this request in the interest of Justice, the spirit of
fighting international crimes and on the ground that
when a similar request is made from the Republic of
Greece, the Federal Government will render similar
assistance."
Thus, the response of the Government of the
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Republic of Greece to this request for assistance was sent
from the Hellenic (Greek) Ministry of Justice vide their
covering letter (at pages 55-57 of Exhibit 41) to the
Embassy of the Federal Republic of Nigeria in Greece
(covering letter at page 1 of Exhibit p41), directly to the
recipient, the EFCC. The EFCC therefore at all times had
custody of the documents, which formed part of their
investigation, up to the time they were tendered at the trial
Court and admitted as Exhibit 41.
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 to the trial Court 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 fees, as
none are prescribed. It is
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therefore in this light that the decision of this Court in
Lamido v FRN (Unrepor ted ) Appea l No .
CA/K/436/C/2013, per Abiru, JCA, is relevant. Therein, it
is 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."
(Emphasis supplied).
I therefore agree that in not paying fees to certify Exhibit
41 series for its own purposes, the Respondent did not fall
foul of the
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law. Thus, I uphold the finding of the learned trial Judge
that the documents were a direct communication between
the Embassy of the Federal Republic of Nigeria in Greece
and the EFCC, and it contains the authentication by the
EFCC that they are certified true copies of the very
documents which they received.
The second area of discomfort for the Appellant with
regard to the Exhibit 41 series is that, whilst the results of
the investigations in Greece were made in Greek language
and were subsequently translated into English language,
the translators/interpreters of the documents were not
called to testify. It is contended that the authentication of
the documents by the Nigerian Embassy is not a substitute
for the presence of the translator, and thus that the failure
of the translator/interpreter to testify is fatal the case as it
renders Exhibit 41 inadmissible on the ground of hearsay.
In the light of these contentions, I have myself examined
the said documents which make up the Exhibit 41 series. I
confirm that they are made up of documents in both
English language and Greek language. Of particular
significance is the covering letter of the Ambassador
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of the Federal Republic of Nigeria in Greece, and for
reasons of clarity, portions thereof are reproduced
hereunder-
"...I should highlight that in the effort by the Greek
authorities to get to the root of the request from the
Attorney General and Minister of Justice, Greek
Ministries, the Police and Courts in Athens, made
their inputs on the issue... The details are provided in
the attached copies in Greek and English Language."
(Emphasis supplied)
From the English translations of the relevant documents
referred to in the covering letter, it is quite apparent that
Exhibit 41 comprises of reports of investigations of several
Government Ministries in Greece such as: the Hellenic
Republic Ministry of Foreign Affairs, Hellenic Republic
Ministry of Justice, Hellenic Republic Ministry of
Mercantile Marine; Hellenic Republic Piraeus Court of
Appeal prosecutor's office; proceedings of the Hellenic
Republic Piraeus Court of First Instance; and finally proof
of Receipt of service of process by the Police at Syntagma
Police station, all in Greece. The witness statement on oath
(at pages 15-17 of Exhibit 41) which has been singled out in
this challenge is in
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point of fact a part of the proceedings of the Hellenic
Republic Piraeus Court of First Instance. The opening
statement of the proceeding states as follows
"PIRAEUS Court of First instance
Z' Investigations dept
Witness Statement Under Oath
Today, Wednesday, 2nd April, 2014 at 12.30 in
Piraeus, the witness Athanasios Kalaktides, a Greek
national, son of Vsileios and Maria, born in Piraeus
on 10/06/1967, a bearer of ID card No. X541358/2003
- issued at Palaio Faliro police station _ and resident
at 70 Firanos street, Piraeus, appeared before the
Piraeus Magistrate Court - Z' investigations
Department - Judge Vasileios Tzelepis, and Court
secretary Theofano Zampeti in respect of a summons
pertaining to Order No. 207 FDS 7/2014, issued by
the Piraeus Court of Appeal prosecutor. The case
relates to a request by Nigerian Authorities for legal
assistance. The witness who is a broker by shipping
profession, declared to swear to the Bible (Article
218, par. 1 of the Criminal Proceedings code) and in
turn he proceeded to the religious oath in accordance
with Articles 218 & 219 of the criminal Proceedings
Code. He stated the following:
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"I am the representative of Marvin shipping services
INC, under Law 89/67, the company has a branch
office in Greece, and its commercial role involves
shipping brokerage services and charting of vessels.
During the time period in question, the vessel
DELFINA was managed by IMS S.A...
.....................
The witness The Magistrate The Secretary
Signature Signature Signature"
By reason of the above-stated facts, Exhibit 41 series is
admissible in evidence by virtue of Sections 145, 146, 149
and 168(1) and (2) of the Evidence Act. By a combination
reading of these provisions, the Nigerian Ambassador to
Greece, by his covering letter not only authenticated the
fact that the documents attached to the letter were official
documents he received from the Greek Government in
direct response to the request of its partner Nigeria, in the
Mutual Legal Assistance Treaty, but also that the
translation of each of the documents in Greek into English
language were official translations of them. Also, by virtue
of the same provisions, but in particular, Section 149 of the
Act, the official record of the Piraeus Court of First
Instance, as well as all
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the official documents from the various Greek Ministries
and authorities, were duly signed, stamped and sealed. By
the above-cited provisions of our Evidence Law, these
signatures, seals and stamps are genuine and the officers
who so appended their signatures and affixed their seals
and stamps, are deemed to hold the offices so ascribed to
them in the documents.
In respect of the failure of the Respondent to call the
makers of the statements contained in the Exhibit 41 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
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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 prosecution 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. 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 41, being
correspondences via electronic mail
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otherwise known as e-mail, 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 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 any 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."
Subsequent to this, the witness issued his testimony
(witness statement on oath at pages 17-18 of Exhibit P41)
and
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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 are 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 sent
through the Embassy of Nigeria in Greece. It is therefore
also covered by the provisions of the Evidence Act.
Pursuant to all these findings, I find that the Exhibit 41
series comprised of documents made in Greek and
translated into English, were rightly admitted in evidence
by the trial Court. I therefore resolve issue six in favour of
the Respondent.
Issue seven - Whether the learned trial Judge rightly
or wrongly held that the prosecution proved beyond
reasonable doubt the offence of advance fee fraud of
the sum of N963, 796, 119.85 against the Appellant.
For the essential
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ingredients of the offence of Advance Fee Fraud, learned
senior counsel relied on the decisions Amadi v FRN
(2005) 18 NWLR (pt. 1119) 259; Onwudiwe v FRN
(2006) 10 NWLR (Pt. 988) 382; Oshin v IGP (1961)
SCNLR 40. He therefore submits that the Respondent was
required to prove - (1) a misrepresentation of fact; (2) that
the misrepresentation must be false to the knowledge of
the Defendants (3) that the Defendant must intend that a
victim acts on such misrepresentation; (4) that the victim
must be deceived by the misrepresentation; (5) that on the
basis of the deceit, the victim is made to part with funds to
the Defendants and (6) that the Defendant must have
intended to defraud the victim in making false
representation.
It is submitted that the victim of the alleged offence of
Advanced Fee Fraud is a Federal Government Agency,
PPPRA, which paid fuel subsidy to the 2nd Defendant.
Exhibit P1 contains the documents in support of the
subsidy claimed. It is contended that only six out of the
seventy-one documents attached to Exhibit P1 were alleged
to have been forged. The evidence of the witness from
PPPRA shows that subsidy is calculated using the Bill of
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lading of the mother vessel or that of the daughter vessel,
as the case may be. Thus, it is contended that the
documents allegedly forged were not vital to the calculation
of the subsidy. It cannot therefore be correct to contend
that there was any false representation by the 2nd
Defendant through the forged six documents which could
have induced PPPRA to pay the subsidy to the 2nd
Defendant. It is also submitted that the evidence of pw8
and pw14 cast doubt on the case of the prosecution; while
PW17's evidence on the importation of fuel and receipt of
the documents in Exhibit P1 from the corresponding Bank
of the supplier, Napa Petroleum, is direct, positive and
unequivocal.
In response, learned counsel for the Respondent refers to
and relies on page 1 of Exhibit P38 (the EFCC summary of
the documents presented by the Appellant) and the
testimony of pw19 on this issue; as well as the testimony of
pw13, (an eye witness of the ship to ship (STS) transfer at
offshore Cotonou from M/T Gavros and the summary of the
investigation based on the documents from General Marine
and Oil services Limited (the GMO) (at page 2 of Exhibit
p38), and the testimony of PW13
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(at pages 1 to 25 and 44 to 46 of the supplementary
Record).
From the evidence, it is submitted that the Appellant
breached the terms of the Import Permit to import PMS
under the PSF scheme for the fourth quarter 2010 (pages 7
to 8 of Exhibit P1). It is contention of the Respondent that
the source of the PMS delivered at the Obat terminal was
not from Petrobras Brazil and was not shipped through
M/T Overseas Limar, M/T Delphina and M/T Dani 1.
Instead, the PMS was sourced from M/F Gavros, M/T Ridin
and M/T Delphina as represented in Exhibit P38. The
source of the PMS discharged by Dani 1 at Obat terminal
was mainly what is referred to in the industry as
"Remaining on Board" (ROB) as testified to by PW13, an
eye witness to the trans-shipment, He also referred to the
testimony of the PW19 that it might be a stolen or round-
tripping product, i.e. a product already paid for by the
Federal Government through another importer, which
entire quantity the importer failed to discharge and then
gave same to another importer as fresh importation.
It is submitted that the Respondent having adduced
credible evidence that the Appellant did not import the
132,200 Mt
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of PMS from Petrobras in Brazil and shipped it through
M/T Overseas Limar to Offshore Cotonou, the evidential
burden shifted to the Appellant to adduce evidence on how
it sourced the "Remaining On Board" (ROB) PMS
discharged at Obat Jetty by the vessel M/T Dani 1. It is
contended that the Appellant failed to give evidence as to
the sources of the product which M/T Dani 1 discharged at
Obat Terminal; rather he relied on the false representation
made by him in Exhibit p1.
It is therefore submitted that the Appellant knowingly made
false representations in Exhibit P1 in order to deceive and
to defraud as follows: he knowingly made a false
representation that the importation is from Petrobras in
Brazil through the mother vessel M/T Overseas Limar,
M/T Delphina and M/T Dani 1, (page 1 of Exhibit p38, page
743 of Record), when at the time he approached the Bank
to finance the importation of the PMS based on the Import
Permit granted him by PPPRA (pages 78 of Exhibit P1), he
had informed the Enterprise Bank (as represented by pW14
Uchene Aikaka) that the mother vessel was M/T Heli, which
was later changed to M/T Panta.
However, from the testimony of PW13 who
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was physically present at the scene at the offshore
Cotonou, the vessel that discharged PMS into M/T Delphina
was M/T Gavros and not M/T Overseas Limar, as falsely
represented in Exhibit P1, which was the basis upon which
the subsidy of N963, 796, 199,85k was paid to the 2nd
Defendant. This piece of evidence was corroborated by the
statement of Mr. Athanasios Kairaktides of Marvin
Shipping (at pages 16-17 of Exhibit p41), as well as the
letter written on the letter-head of Brila Energy Ltd by the
Appellant (pages 140-141 of Exhibit P41). The evidence of
PW5, the representative of Inspectorate Marine Services
Ltd who was purported to have witnessed the ship to ship
(STS) transfer from MT Overseas Limar and M/T Delphina,
also attest to this. The Inspectorate Marine Services was
also purported to have issued the documents at pages 16,
22, 27 and 30 of Exhibit P1. It is therefore submitted that
the Appellant, the alter ego of Brila Energy Ltd, did not
import some 13,000mtr from Petrobras in Brazil, as falsely
represented in Exhibit p1.
It is conceded that there was no count of forgery of the Bill
of Lading of the vessel M/T Overseas Limar. However, that
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PW19 referred to the Bill of Lading of M/T Overseas Limar
in testifying that the vessel, M/T overseas Limar was not at
the port of loading. Evidence was also adduced that
established that the mother vessel was not in Brazil but in
Everglades, USA on the day on which the Appellant falsely
represented in Exhibit P1 that the same vessel loaded
132,200 metric tons of PMS at the Port of Sao Sabastiao in
Brazil.
Reliance is also placed on the evidence of PW13, an eye
witness to the ship to ship (STS) operations between
M/T Delphina and M/T Gavros, Exhibit 33, the testimony of
PW12, Exhibits P28 to P30 and the findings of the trial
Judge at page 1489 of the Record. It is submitted that all
these pieces of evidence are to the effect that M/T Overseas
Limar played no role in the importation of the PMS for
which Brila Energy Ltd was paid subsidy in the sum of
N963, 796, 199.85K. The logical conclusion from this is that
the Bill of lading falsely presented in Exhibit P1 by the
Appellant is a forged document, and that the Court is
entitled to make that presumption. Reliance is placed
onIjioffor v State (2001) 9 NWLR (Pt. 718) 371- at 384
per Ejiwumi JSC where he stated thus:
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"... in other words, the Judge is permitted to raise a
presumption from the proof of some facts the existence of
another fact without further proof of that other fact."
It is submitted that from the evidence of PW15, the Bill of
Lading of M/T Overseas Limar (at page 15 of Exhibit P1)
was used to calculate the payment of subsidy to the tune of
N963, 796, 199.85k to Brila Energy Ltd by the Federal
Government of Nigeria. The Court is therefore urged to
resolve this issue in favour of the Respondent.
In a reply on point of law, it is submitted that the
submission that the Appellant should identify the source(s)
of the products discharged into the Obat Tank Farm runs
contrary to the principle of non-shifting of the prosecution's
burden and standard of proving its case against a
defendant beyond reasonable doubt to the defendant in a
criminal trial. The law is that the guilt of the accused
should not be based on suspicion or speculation. Reliance is
placed on Igboji Abieke V State (1975) 9-11 SC 60; &
Babatola V State (1989) 7 SC (pt. 1) 94.
Rather, it is submitted that in view of the Bill of Lading (at
page 196 of Exhibit p1) which
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shows the ship to ship transfer from M/T Overseas Limar to
M/F Delphina, it was incumbent on the prosecution to
adduce admissible evidence from the owners of M/T-
Overseas Limar and M/F Delphina that there was no ship to
ship transfer of fuel. It is contended that these vital
documents and testimonies are missing in the case of the
Respondent. It is also contended that the evidence of Lawal
Ahmed under cross-examination on the authenticity of vital
documents such as the Bill of Lading of M/T Overseas
Limar, as the mother vessel, M/T Delphina, as daughter
vessel, the non-investigation of the purchase of fuel from
NAPA and the refineries whose addresses were available,
creates reasonable doubt in prosecution's case.
Findings
This issue dwells on whether, on the totality of the evidence
adduced before the trial Court, the Respondent proved the
offence of Advance Fee Fraud of the sum of N963, 796,
119.85 against the Appellant to the degree required by law,
which is beyond reasonable doubt. The charge in this
regard against the Appellant reads as follows
"STATEMENT OF OFFENCE - 1ST COUNT
Obtaining Money by False pretences contrary to
Section
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1(3) of the Advance Fee Fraud and other Related
Offences Act No. 14 of 2006.
PARTICULARS OF OFFENCE:
Rowaye Jubril and Brila Energy Limited on or about
the 20th day of May, 2011 at Lagos within the Ikeja
Judicial Division with intent to defraud obtained the
sum of nine hundred and sixty three million, seven
hundred and ninety six thousand, one hundred and
ninety-nine Naira, eighty five Kobo (N963, 796,
199.85) from the Federal Government of Nigeria by
falsely claiming that the sum represented subsidy to
Brila Energy Ltd under the Petroleum support Fund
for the importation of 13,155,807MT or 17,393,767
litres of premium Motor spirit (PMS) which Brila
Energy Limited purported to have purchased from
Napa Petroleum Trade INC Panama and imported into
Nigeria through M/T Overseas Limar (Mother vessel),
M/T Delphina (1st Daughter vessel) and M/T Dani 1
(2nd Daughter Vessel) which pretence you knew to be
false."
Having already affirmed the findings of the trial Court that
counts 2 to 13 which charged the Appellant and Brila
Energy Ltd for forgery and uttering of the two Saybolt
documents and the four documents purporting that
Inspectorate Marines
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Services carried out inspections during the trans-shipment
operations between the mother and daughter vessels in
Brazil and at offshore Cotonou, the only issue to be
resolved here is whether, the presentation of these forged
and uttered documents by the Appellant, in conjunction
with the other documents that made up Exhibit P1, induced
and deceived the Federal Government of Nigeria, acting
through its agency, the PPPRA, into paying the said sum as
subsidy for imported PMS on the Import Permit granted to
Brila Energy Ltd.
It is the contention of the Appellant that out of the seventy-
one documents presented to the PPPRA for the payment of
subsidy, (which bundle of documents, also containing the
covering letter written by the Appellant, were admitted in
evidence as Exhibit P1), only six of them were found to be
forged and uttered. It is argued that there was no evidence
that PPPRA was induced solely by these six documents to
pay the subsidy. The Appellant relies on the evidence of
pw17, an officer of the PPPRA wherein he stated that
subsidy is calculated using the Bill of Lading of the mother
vessel or that of the daughter vessel. Thus, it is submitted
that
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the documents said to be forged and uttered were not vital
to the calculation of the subsidy. It is therefore submitted
that since the Appellant was not charged with forgery and
uttering the Bills of Lading submitted in Exhibit P1, there
was no false representation by Brila Energy Ltd through
the six forged documents, which could have induced the
PPPRA to pay subsidy to the company.
As beguiling and as persuasive as this argument may
appear to be, it is certainly not borne out by the totality of
the evidence adduced before the trial Court as reflected in
the Record of Appeal. It is an undisputed fact that the
Appellant presented all of 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 therein through the vessels and from the ports of
loading and discharge documented therein, and so was
entitled to be paid subsidy 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 13,200 metric
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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 in Apapa Lagos,
Nigeria. However, upon an in-depth investigation by the
EFCC, the documentation submitted to the PPPRA did not
stand up to scrutiny as most of the documents were
discovered to be contrived and out rightly false. A few
instances will suffice.
By the "Permit to import PMS" under the Petroleum
Support Fund (PSF) Scheme (contained at pages 7-8 of
Exhibit P1) which was granted the Appellant on October, 8,
2010, it is expressly stated therein inter alias follows:
"with reference to the expression of interest by your
company to participate in the importation of Premium
Motor spirit (PMS) in Q4, 2010, I am directed to
convey approval for your company to import 15,000
MT of PMS within the period...
3. Kindly note that this permit is issued under the
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following terms and conditions: ...
vi. The Agency should be furnished with documents of
all import transactions prior to the submission of
NOR for the Vessels. The documents must include:
a. Evidence from financing bank showing the amount
paid on the transaction and verifiable with the CBN.
b. Copy of letter of credit for the transaction or
verifiable Bill of exchange if transaction is governed
by Bills of collection (cash transaction will be
disallowed).
c. Final invoice relating to the transaction/along with
the proforma invoice.
vii. Kindly note that where any misrepresentation
whatsoever is established on documents tendered for
PSF claims, the Agency is not liable to settle such
claims aside the fact that the defaulter could be
p r o s e c u t e d o u t r i g h t l y f o r c r i m i n a l
misrepresentation." (Emphasis supplied)
By his covering letter in presenting the bundle of
documents attached to Exhibit P1 titled "Payment claim for
import of 13, 243, 447 MT under the PSF scheme for 4th
Quarter, 2010" in purported satisfaction of the Import
Permit dated March 23, 2010 (at page 3 of Exhibit P1), the
Appellant, who signed as the Managing Director/CEO of
Brila
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Energy Limited, stated inter alia as follows:
"Kindly find attached our payment claims for PMS
import cargo as follows..."
From this payment claim, the Appellant attested to the
genuineness of the documents which he presented in the
Exhibit P1 as evidence that Brila Energy Ltd had fulfilled
and complied with the conditions in the Import Permit by
importing the quantity of PMS disclosed in the documents
in the manner therein stated and so was entitled to the
payment of subsidy by the Federal Government of Nigeria.
The Appellant, in purported satisfaction of the conditions in
the Import permit, submitted a letter from Spring Bank
(later Enterprise Bank plc) to PPPRA (at page 4 of Exhibit
Pl) wherein the Bank confirmed that it had financed the
importation of PMS for Brila Energy Ltd. It further gave a
few details of the operation thus:
"We write to inform you that Spring Bank Plc
financed the importation of 13,271.083 metric tons of
Petroleum Motor spirit (PMS) for Brila Energy
Limited... by Ship to Ship transfer into "MT
DELPHINA" Offshore Cotonou "Ex OVERSEAS
LIMAR". (Emphasis supplied)
Now it is the contention of the Appellant
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that the Bank placed the import order and paid to NAPA
Petroleum Inc. as the shipper, which then engaged
M/T Overseas Limar as the mother vessel to import the
cargo from Brazil to Offshore Cotonou (page 14 of Exhibit
P1). Consequently, the Appellant submitted Bills of Lading
(at pages 15, 16 and 17 of Exhibit P1) showing that
33,295.64 metric tons of PMS were shipped in apparent
good order and condition by Petroleo Brasieliro S/A-
petrobas aboard M/T Overseas Limar at Port Sebastio in
Brazil, as the mother vessel, which trans-shipped
13,251,763 metric tons into M/T Delphina by ship to ship
(STS) transfer at offshore Cotonou, which then trans-
shipped 13,225.82 metric tons to M/T Dani 1 by ship to ship
(STS) transfer at offshore Cotonou. The signatories of the
Bills of Lading were as follows: for M/T Overseas Limar, the
Master of the ship as agent on November, 22, 2010; for
M/T Delphina, the Master of MT Delphina on January 27,
2011; and for M/T Dani 1, the Master of M/T Dani 1 on
March 1, 2011.
The Appellant further submitted another document titled
"Certificate of Origin" (at page 18 of Exhibit P1) which
certified the following information:
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" T H I S I S T O C E R T I F Y T H A T T H E
UNDERMENTIONED CARGO DELIVERED BY
PETROBAS PER M/T: "OVERSEAS LIMAR"
CONSIGNEE: TO THE ORDER OF SOCIETE GENERAL
PARIS PORT OF DISCHARGE: WEST AFRICA FOR
ORDERS
THIS PRODUCT FROM SAO SEBASTIO BRAZIL..."
As rightly submitted by the Appellant, the Bills of Lading
signed by the Masters of the various ships did convey the
impression that the PMS was imported and loaded into M/T
Overseas Limar, as the mother vessel, at the port of loading
in Port Sao Sebastio in Brazil, and subsequently trans-
shipped sequentially into M/T Delphina and M/T Dani 1, as
daughter vessels, at offshore Cotonou, in that order.
However, other documents submitted by the Appellant in
further affirmation/substantiation that Brila Energy Ltd
imported the quantity of PMS as presented by the Bills of
loading, did not stand up to scrutiny.
For instance, the "Certificate of Quantity" which purports
to have certified the measure of PMS on board M/T-
Overseas Limar in Brazil on November 22, 2010, and the
"Gasoline Analysis" which purports to disclose the test
performed on the PMS on board the M/T Overseas Limar
(pages 26 and 29 of Exhibit P1), both issued by
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Saybolt Concremat, were forged and uttered (see my
earlier findings under Issues 2 and 4 above). Likewise, the
"Certificate of Quantity" and "Certificate of Quality" issued
by Inspectorate Marine Services. Nig. Ltd (at pages 27 and
30 of Exhibit p1), were also forged and uttered (see my
earlier findings under issues 3 and 4 above). Again, PW7,
the Managing Director of MGI Inspections Ltd denied that
his company engaged Inspectorate Marine Services to
inspect the operations between M/T Overseas Limar, M/T
Delphina and M/T Dani 1 in the ship to ship transfer at
offshore Cotonou. However, as a co-Director with the
Appellant on the Board of the company known as Port
Cargo Experts Ltd, he engaged a Freelance Contract
Surveyor in the person of PW8 for the operation between
M/T Dani 1, M/T Delphina and M/T Overseas Limar.
However, PW8 himself testified that he was only engaged
by Port Cargo Experts Ltd to carry out an inspection
operation on behalf of Brila Energy Ltd in a ship to ship
transfer from M/T Delphina to M/T Dani 1 at offshore
Cotonou and to Obat Terminal to discharge the products.
He categorically denied being engaged to carry out any
operation for Brila
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Energy Ltd on board M/T Overseas Limar and M/T
Delphina at offshore Cotonou. He also denied giving Brila
Energy Ltd any documents purportedly authenticated by
Inspectorate Marine Services in respect of such an
operation.
From the evidence of PW17, the Country Manager of
Saybolt Nigeria, a Division of Corelab Nigeria Ltd, and
Exhibit P7, as well as the evidence of PW5, the Branch
Manager of Inspectorate Marine Services Nigeria Ltd, both
Saybolt Brazil and Inspectorate Marines Services, named
as the inspectors on board the named vessels in the
documents submitted by the Appellant, never inspected and
witnessed the ship to ship transfer from the two vessels as
indicated in the documents. Therefore, these documents
which should have served as checks and balances and
should have been a confirmation of the quantity and quality
of the PMS imported, failed to confirm the information
contained in the Bills of Lading presented by the Appellant
for the payment of subsidy.
In addition, the Lloyds Intelligence report (Exhibits 23-25),
coupled with the cogent evidence of PW9 and PW17 in this
regard, on the location of M/T overseas Limar at the time it
allegedly
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loaded the PMS and at the time it was supposed to have
transshipped the quantity of PMS into M/T Delphina as
contended by the Appellant, further puts a huge question
mark on the authenticity or, at the very least, the veracity
of the information contained in the three Bills of lading
submitted by the Appellant. The Lloyds List Intelligence
Report on the location of M/T Overseas Limar (Exhibits
23-25) discloses that, at the time (in January 2011) that the
Appellant said the vessel was at offshore Cotonou
participating in a ship to ship transfer with M/T Delphina, it
was actually in Everglades in the United States of America,
from whence it departed to Venezuela. Also, the chart in
Exhibit 38 traces the movement of the vessels as submitted
in Exhibit P1 by the Appellant, as well as their movements
as traced from the documents submitted by General Marine
oil Services (referred to as GMO), and the documents
submitted by M/T Dani 1.
PW14, the Deputy General Manager of Enterprise Bank plc
which financed the importation of PMS granted to Brila
Energy Ltd by PPPRA, testified that the Bank appointed
GMO as a warehousing agent to monitor/inspect the
discharge of
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the cargo. The Bank received information from Brila
Energy Ltd that the operation was to be carried out
between the vessels M/T Gavros, M/T Panta and
M/T Delphina. General Marine oil Services (GMO) however
informed the Bank that they did not monitor the final
discharge of the cargo into the Obat storage facility at
Apapa, Lagos.
The evidence of PW13, an erstwhile Cargo Inspector with
General Marine Oil Services (GMO), and the documents
from GMO and M/T Dani 1, clearly disputes the assertion of
the Appellant that any trans-shipment of about 13,200
metric tons of PMS took place between M/T overseas Limar
into M/T Delphina, and from M/T Delphina into M/T Dani on
the stated dates at Cotonou offshore. Exhibit 33, in
particular, issued by GMO is very significant. It supports in
every material particular the evidence of its surveyor,
PW13. GMO was appointed by Enterprise Bank plc
(formerly Spring Back Plc), the Bankers of Brila Energy
Ltd, as representing both Spring Back Plc and Brila Energy
Ltd as a warehousing agent to superintend the loading and
discharge operations of the cargo (PMS) on board the
vessels. It sent its warehouse agent, General Marine
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Services (who superintended the ship to ship transfer of
13,242.644 metric tons of PMS between M/T Gavros, as the
mother vessel and M/T Delphina, as the daughter
(receiving) vessel on 22-10-2-011 at Cotonou offshor:e.
Thereafter, M/T Delphina discharged the cargo into three
daughter vessels as follows:
(a) on 28-28.01.2011 discharged 4,989.239 metric tons to
M/T pantelis;
(b) on 30-31.01.2011 discharged 4,954.982 metric tons to
M/T Aline Maya; and
(c) on 18-20.02.2011 discharged to M/T Dani 13,207.446
metric tons.
Again, in Exhibits 28, 29, 30 and 30A, Daddo Maritime
services Ltd, the owners of M/T Dani 1 which was
chartered for the importation/transportation of petroleum
products, supplied details of all the voyages to/in Nigeria
by M/T Dani 1 from January to December, 2011, including
the certified true copies of the documents relating to the
voyages. These documents confirmed the information in
Exhibit P38 (the EFCC chart) that M/T Dani 1 received a
total of 10,302.375 metric tons of PMS from the under-
listed vessels as follows:
(i) 3, 952.045 metric tons from M/T Aidin on 18-02-2011;
(ii) 3,119.267 metric tons from M/T
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Gavros on 14-02-2011; and
(iii) 3,243.066 metric tons from M/T Delphina on
20-02-2011.
Thereafter, M/T Dani 1 discharged the product on board as
follows:
(a) 2,013.234 metric tons to M/T Fulmar on 21-02-2011;
(b) 6,911,970 metric tons at Obat Jetty/Depot; and
(c) An unspecified amount at Fatgbems Jetty/Depot
The evidence contained in these documents un-earthed by
EFCC during its comprehensive and in-depth investigations
from companies/persons said to have been intricately
involved in the shipping operations which ultimately led to
the claim for the payment of subsidy by the Appellant,
entirely contradicts the Appellant's submission that the
13,200 metric tons PMS it supplied to the Federal
Government based on the Import Permit issued by
PPPRA was sourced (as alleged) from Napa Petroleum and
imported through M/T overseas Limar loaded at port Sao
Sebastio in Brazil, to M/F Delphina and to M/T Dani 1.
Consequently, the entire presentation of the Appellant and
Brila Energy Ltd in the documents attached to Exhibit P1 to
the effect that, in fulfillment of the Import Permit issued to
it by PPPRA, it imported the given quantity of
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PMS through the under-listed vessels on the dates stated :
1. 33,295 metric tons on board the M/T overseas Limar on
22-11-2010;
2. 13,271.083 discharged to M/T Delphina on 27-01-2011;
3. 13,245.143 discharged to M/T Dani on 01-032011; and
4. 13,155.807 metric tons discharged into the Tank Farm at
Obat Jetty Depot on 09-03-2011; has been proved to be
totally false. Consequently, even the Bills of Lading now
touted by the Appellant as genuine documents upon which
the PPPRA relied upon to pay the subsidy, (as stated by
PW17), are false documents which tell lies about
themselves; and the fact that the Appellant was not
charged with forging and uttering these documents does
not detract from this. Indeed, in view of the conditions
contained in the Import Permit (reproduced earlier), and
which were unreservedly accepted by the Appellant, the
Appellant contravened the terms and conditions of the
contract by the false representations made by him in
substantiation of his claim for the payment of subsidy, and
thus rendered himself personally liable to be prosecuted for
such criminal misrepresentation. For ease of reference, the
condition in the
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Import permit stated inter alia thus -
"vii. Kindly note that where any misrepresentation
whatsoever is established on documents tendered for
PSF claims, the Agency is not liable to settle such
claims aside the fact that the defaulter could be
p r o s e c u t e d o u t r i g h t l y f o r c r i m i n a l
misrepresentation." (Emphasis supplied)
Based on all the above, inclusive of the well-articulated and
comprehensive analysis of the avalanche of evidence
adduced before the trial Court by the learned trial Judge on
this issue, in the particular the evaluation of evidence
contained at pages 1486-1493 of the Record, I am of the
considered view that based on the totality of the evidence
adduced, the Respondent proved the offence of Advanced
Fee Fraud in respect of the sum of N963, 796, 119.85
against the Appellant to the degree required by law, which
is beyond reasonable doubt.
It is noteworthy that the case against the Appellant and
Brila Energy Ltd was largely based on documentary
evidence (comprising of forty-three (43) documents) which
was buttressed and substantiated by the oral evidence from
no less than twenty witnesses called by the prosecution.
The learned trial
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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 said that astonishingly, in the face of this flood of
evidence, the Appellant and Brila Energy Ltd decided to
keep mum, adducing no evidence, whether oral or
documentary, to contradict or impugn the evidence laid
before the trial Court by the prosecution. This, of course is
their inalienable and absolute 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. See
Section 135(1) and (2) of the Evidence Act in conjunction
with the presumption of innocence in Section 36(5) of the
Constitution of the Federal Republic of Nigeria, 1999 (as
amended; Okashetu v State (2016) LPELR-40611(SC)
at 4, paras D-E; & Chianugo v State (2002) 2 NWLR
(pt. 750) 225 at 236. I think the prosecution succeeded in
proving its case to this standard and thus acquitted itself
creditably by discharging the onus of proof
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on it. I therefore resolve issue seven in favour of the
Respondent.
Issue eight - Whether the material and unresolved
contradictions in the evidence of prosecution
witnesses were sufficient to cast doubt on the guilt of
the Appellant.
It is the contention of learned Counsel for the Appellant
that the learned trial Judge ignored the material
contradictions in the evidence of the prosecution witnesses
and instead, chose the part of the evidence that appeared
to support the case of the prosecution to convict the
Appellant. It is submitted that in respect of the offence of
obtaining money by false pretences premised on the
contention that Brila Energy Ltd did not import the fuel and
as such was not entitled to the money received as fuel
subsidy, the evidence of PW4, PW6, pw7, pw8, pw9, pw10
and pw11 are contradictory on the issues of (i) non-
importation of fuel by 2nd Defendant, and (ii) the ship to
ship transfer in offshore Cotonou. It is also contended that
the evidence of PW4, PW5, PW14 and PW17 are
contradictory on the author/makers of the six documents,
allegedly forged.
For the offence of forgery and uttering forged documents to
defraud the
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Government, it is contended that the evidence of the
prosecution witnesses on the makers and origin of the
purported forged documents are contradictory and
inconsistent because, while some witnesses testified that
the Appellant is the maker of the documents, others
admitted that all the documents were made by the shipper
and delivered via DHL courier services to the Appellant's
Bank through the foreign bank of the Shipper. In respect of
the Inspection Marine Services' company stamp on four of
the documents, PW5, who earlier testified that his
company's stamp on the shipping documents were forged,
admitted under cross-examination that his signature was
not on any of the documents and his colleague in the office
Mr. Uzo, who dealt with the Appellant on the transaction,
was not contacted before he gave a negative reply to the
EFCC. Thus, the possibility of the company signing and
stamping the documents was not eliminated. Reliance is
placed onAhmed V State (1999) 7 NWLR (pt. 613) 641,
Mohammed JSC; Ibeh v State (1997) 1 NWLR (Pt.
484) 632 per Ogundare JSC; & Johnbull Arhabone v
State (2014) LPELR-22609(CA). The Court is therefore
urged to resolve
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this issue in favour of the Appellant.
In response, it is submitted by learned Counsel for the
Respondent that the nature and particulars of
contradictions in the evidence of pw4, pw7, pw8, pw9,
pw10 and PW11 were not stated, i.e. whether they were
based on the oral testimonies of the witnesses or based on
the documentary evidence. It is contended that the
overwhelming evidence adduced by the Respondent is that
the Appellant was involved in the forgery of these
documents or he procured someone to do it. Reference is
made to Section 7 of the Criminal Code of Lagos State,
Cap. C17, which provides for who is a principal offender.
On the issue of the stamp of Inspectorate Marine Services
on the documents at pages 19, 22,27 and 30 of Exhibit P1,
reliance is placed on the earlier submission that even if the
company's stamp was placed on these documents, without
the company officially engaged to perform the inspection
operation, it would still be forgery. PW5, a staff of
Inspectorate Marine Services, could testify on behalf of the
company. It is therefore submitted that there is no
contradiction in the evidence of the Respondent.
In respect of the submission that the
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document at pages 19, 22, 27 and 30 of Exhibit P1 were
shipping documents and that PW5 is not competent to give
evidence, it is submitted that from the evidence of pw5,
pw7 and pw13, the shipping company required the services
of surveyors and inspection companies to prepare such
documents. They were not documents made by the Ship
Captain. Instead, the calculations and tests in the
documents were purportedly made by Inspectorate Marine
Services Nigeria Ltd. PW5 was therefore competent to
testify on behalf of the inspection company.
It is further submitted that PW8, the freelance surveyor
engaged by GMO denied ever witnessing the operation
between the vessels M/T Overseas Limar and M/T
Delphina. Thus, there was no contradiction in the evidence
of pw8.
In respect of the testimony of PW14 on the question of the
importation of PMS where he stated that the shipping
documents were forwarded to Enterprises Bank through
DHL Courier Service by the correspondence Bank (Union
Bank UK), it is submitted that he also testified that the
maker of the shipping document was the seller. It is
however contended that PW14 clarified that his evidence
was based
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on the standard practice in the trade; and that he had no
personal knowledge on how the documents in the instant
case were made. It is also contended that contrary to the
submission of the Appellant, no letter purportedly written
by the seller, NAPA to Enterprise Bank and allegedly
forwarded to the EFCC, exists. Also, that like PW14, PW17
(from Enterprise Bank) testified that his testimony about
the making of the document was based on the standard
practice in the industry and that he had no personal
knowledge on how the documents used in this case were
made. The Court is therefore urged to hold that the
evidence of PW14 and PW17 did not create any reasonable
doubt in the case of the Respondent.
Findings
In order to water down the strength of the evidence
adduced by the Respondent, learned senior counsel for the
Appellant has submitted that the evidence was replete with
contradictions. However, with due respect, Senior Counsel
only made sweeping statements about the contradictions
existing in the evidence of a number of witnesses in
relation to the offences charged and in relation to some
documents without condescending upon the particulars. Be
that as it
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may, I am of the view that learned Counsel for the
Respondent has highlighted the relevant pieces of evidence
of the witnesses referred to which adequately answers the
alleged but non-existent contradictions in the evidence of
the witnesses before the trial Court.
On my own part, upon a careful consideration of the
alleged conflicting evidence, I do not find any material
conflicts. A resume of the evidence is that, in an attempt to
prove the execution of the Import Permit granted Brila
Energy Ltd, the Appellant and the Brila Energy Ltd
presented documents which turned out to be false. From
the evidence of the PW5, the documents referred to which,
it is contended, were made by the Shipper and/or the Ship
Captain contrary to the evidence of the witness, clearly
disclosed on its face that the Shipping Company required
the services of surveyors and inspection companies to
prepare such documents. The documents portrayed that
the calculations and test in the documents were
purportedly made by Inspectorate Marine Services Nigeria
Ltd, which was denied by the company, notwithstanding
the stamp of the company thereon. The circumstances were
adequately explained
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by the PW5 of how the possibility of the company having
undertaken the exercise was nil/zilch, and so needs not be
repeated here. PW5 was therefore competent to testify on
behalf of Inspectorate Marine Services Nig. Ltd in this
regard.
As regards the evidence of PW8, I am hard-put to decipher
any contradiction in his evidence. For, as rightly submitted
by the Respondent, he was a freelance surveyor engaged by
Port Cargo Experts who denied ever witnessing the
operation between the vessel M/T Overseas Limar and
M/T Delphina. He gave the extent of what he surveyed at
offshore Cotonou until the vessel Dani 1 sailed into
Nigerian waters, where he did not also witness the
discharge into the Obat Tank Farm. His evidence on this
was neither contradictory nor was it inconsistent with the
evidence of the other witnesses, except with regard to the
quantity transferred into M/T Dani from M/T Delphina. The
circumstances surrounding this latter piece of evidence
was however explained by PW7 in the relationship between
the Appellant and port Cargo Experts, the company which
engaged PW8; the Appellant being both a Director on the
Board of Port Cargo Experts as well as
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being the Managing Director of Brila Energy Ltd,
suggesting at the very least, a conflict of interest. The
evidence of the PW8 must therefore be taken with a pinch
of salt, which the learned trial Judge evidently did.
Also, in relation to the importation of PMS by Brila Energy
Ltd where it is contended that PW14 and PW17 stated that
the shipping documents were forwarded to Enterprise Bank
through DHL Courier Service by the correspondence Bank
(Union Bank UK) from the seller, Napal Petroleum Inc.,
they further qualified this by saying that their evidence was
based on the standard practice in the trade; and that they
had no personal knowledge on how the documents, in this
particular instance, were made (pages 837 and 1092 of the
Record of Appeal). Again, I am at a loss to see the material
contradictions that would devalue the case of the
Respondent against the Appellant in this regard.
In addition to which, PW19, the head of the investigation
into the case by the EFCC, gave a detailed account of the
extensive efforts made through the pW10 to reach the
purported seller of PMS to Brila Energy Ltd, id est Napal
petroleum Inc., and to invite it to a
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meeting with the marketers, to no avail. Indeed, a letter of
invitation was returned un-delivered suggesting that such a
company did not exist. Also, the Appellant himself did not
deem it fit to adduce any evidence to establish the fact of
the importat ion and supply through the sa id
supplier/shipper in the face of plentiful evidence that no
such importation of the product took place.
Thus, what has been described as contradictions, if any, are
not fundamental contradictions with regard to the status of
the false presentation made by the Appellant, which
directly induced the Federal Government to pay Brila
Energy Ltd subsidy on PMS that was not imported in the
manner as represented in the documents submitted by the
Appellant.
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.
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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
contrad ic t ions . Be that as i t 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.
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
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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. See Ekezie v State (2016)
LPELR-40961(CA) 9-10, paras F-D; Maiyaki v State
(2008) LPELR-1823(SC) at 34, Paras A-B; Babarinde v
State (2012) LPELR-8367(CA) at 72, paras C-D;
Ebeinwe v State (2011) 7 NWLR (Pt. 1246) 402; Eke v
State (2011) 3 NWLR (pt. 1235) 589; Attah v State
(2010) 10 NWLR (pt. 1201) 190; Akpa V State (2008)
14 NWLR (pt. 1106) 72; & Olayinka v State (2007)
NWLR (Pt. 1040) 561.
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Going forward and even assuming that there were some
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.
In Theophilus v State (1996) 1 NWLR (pt. 423) 139 at
155, paras A-B, the Supreme Court explained the position
of the law thus:
"It is not every trifling inconsistency in the evidence
of the prosecution witnesses that is fatal to its case. It
is only where such inconsistencies or contradictions
are substantial and fundamental to the main issues in
question before the Court and therefore necessarily
create some doubt in the mind of the trial Court that
an accused is entitled to the benefit therefrom."
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This point was reiterated by Rhodes-vivour, JSC in Egwumi
v State (2013) 13 NWLR (Pt 1372) 525 at 555, paras
D-F thus
"when two or more persons are called as witnesses to
say what they saw on a particular day there are bound
to be discrepancies in their testimonies. The Court is
only concerned with testimony on material facts and
not peripherals that have no bearing on the substance
in issue."
To cap up this issue, it is well to be reminded of wise words
from the learned Jurist of high repute, 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."
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In reiterating the position of the Supreme Court on this
issue, in the more recent case of Uche v State (2015)
LPELR-24693(sc) 32-33, paras B-A, Nweze, JSC followed
up in these words
"Hence, testimonies of witnesses can only be said to
be contradictory when they give inconsistent accounts
of the same event. That explains why the law takes
the view that for contradictions in the testimonies of
witnesses to vitiate a decision, they must be material
and substantial. That, such contradictions must be so
material to the extent that they cast serious doubts
on the case presented as a whole by the party on
whose behalf the witnesses testify, or as to the
reliability of such witnesses... This is so because it
would be miraculous to find two persons who
witnessed an incident giving identical accounts of it
when they are called upon to do so at a future date. If
that were to happen, such accounts would be treated
with suspicion, as it is likely that the witnesses
compared notes. In effect, minor variations in
testimonies seem to be badges of truth... In any
event, Courts have taken the view that witnesses may
not always speak of the same facts or
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993(
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events with equal and regimented accuracy."
Thus, whether the six forged and uttered documents were
prepared by Saybolt concremat in Brazil Inspectorate
Marine Services or by the Shippers of the vessels in
question is not really material. What is material is that the
companies which were said to have been involved in the
trans-shipment operations in respect of the ship to ship
(STS) transfer of the alleged imported PMS from Brazil to
offshore Cotonou and who purportedly signed the said
documents confirming such an exercise, denied doing so
and were proved not to have done so; in addition to which
they specifically disowned the signatures, stamps and seals
on the offending documents, thus making them contrived
and false. Based on all the above, it is my considered view
that the so-called contradictions in the Respondent's
evidence were not material contradictions that would affect
the value or diminish the weight of evidence against the
Appellant. Again, I resolve issue eight in favour of the
Respondent.
Issue nine - Whether the learned trial Judge rightly or
wrongly admitted and acted on irrelevant and highly
prejudicial evidence of Appellant's
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reputation/business relationship as Director and
Shareholder of Inter oil Nigeria Limited and Ports
and Marine Cargo Experts Limited.
It is further the submission of learned Senior Counsel for
the Appellant that, on the strength of the documents
tendered by the prosecution, the trial Court had inferred
the Appellant's guilt from his relationship with and
Directorship of Ports Cargo Experts Limited and Interoil
Limited; that from Forms CAC 7, the Appellant is a Director
of the two companies. Therefore, that the report of ports
Cargo Experts Limited on transhipment of fuel from MT
Delphina to MT Dani is false and self serving and that Ports
Cargo Experts Limited "was working at the behest of the
Defendant for unholy purposes by reason of the affinity
with the Defendants."
It is submitted that there was no evidence of conspiracy or
unholy purpose between the Defendants and Ports Cargo
Experts Limited. Reliance is therefore placed on Sule v
Habu (2011) 7 NWLR (pt. 1246) 339 at 373, para B; &
Yusuf v Adeyemi (2009) 15 NWLR (Pt. 1165) 616 to
submit that a Court should not make adverse/damaging
findings/remarks against a non- party to the proceedings
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before it. It is argued that the Appellants reputation as a
Director of the two companies is irrelevant to the issues
placed before the trial Court, namely whether the Appellant
forged and uttered specific documents.
It is further submitted that the oral evidence of PW18 and
PW20 on the payment for petroleum products by NAPA into
the account of Brila Energy Ltd in respect of products
supplied by Interoil Limited, as well as the absence of
export licenses are irrelevant and therefore inadmissible as
the issue before the trial Court was not the business
relationship between the Defendants and Interoil Ltd, nor
was it whether the 2nd Defendant and Interoil limited
lacked an export license to export petroleum products,
neither was there a charge in respect of unlawful
exportation of petroleum products by Interoil Limited or
the 2nd Defendant.
Therefore, it is submitted that the trial Court ought not to
have relied on this inadmissible evidence as the platform
for her decision that Defendants forged and uttered
documents which they utilised to fraudulently obtain fuel
subsidy by false pretences. The Court is urged to resolve
this issue in favour of the Appellant.
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In response, it is submitted by learned Counsel for the
Respondent that, in respect of Port Cargo Experts Limited,
the Respondent tendered the document relating to its
Directors because the Appellant is one of its Directors and
the Appellant appointed Port Cargo Experts as one of the
Surveyors to superintend the ship to ship transfer. The
testimony of PW7 showed the role played by the Appellant
in the day to day operations as regards the ship to ship
transfer involving the purported importation. It was
therefore in anticipation that the PW8 might be a tainted
witness given that he was employed by the company in
which the Appellant had controlling interest and he was
involved in its management, that the Respondent placed all
the facts in respect of the company and PW8 before the
trial Court so as to enable it make the right evaluation
based on the evidence adduced before it.
In respect of Interall Ltd, the evidence adduced through
pW18 was that Napa Petroleum Inc., the purported seller of
the PMS to the 2nd Defendant, was sending funds to 2nd
Defendant purportedly for the export of petroleum products
such as AGO, Jet A1 and PMS. He
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CA)
identified Exhibit P37 being commercial invoices and credit
telex showing inflow or receipts of funds into the account of
the 2nd Defendant, Brila Energy Ltd. The Appellant is a
Director who is also involved in the day to day management
of both Interall Ltd and Brila Energy Ltd. It is submitted
that it is unusual for the exporter of PMS and other
petroleum products to Nigeria, at the same time to be
buying the same products from its customers. In addition,
investigation revealed (at page 2 of Exhibit P43) that the
Federal Ministry of Trade and Investment Garki, Abuja did
not issue Export Clearance permits to either Messrs Brila
Energy Ltd or Interall Ltd for the exportation of Automobile
Gas Oil (AGO) Premium Motor Spirit (PMS) and Jet A; and
they were not among the Federal Government approved list
of Petroleum Marketing Companies. This evidence was
buttressed by the testimony of PW20, the Chief Officer in
charge of Import permits in the Department of Petroleum
Resources (DPR), and that of pW19, an operative of EFCC.
It is therefore submitted that the transaction between Brila
Energy Ltd and Interrall Ltd (wherein the Appellant is the
alter ego in both)
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purportedly involving the export of petroleum products,
were illegal transactions. It is contended that it is a 'similar
facts evidence' which, under Section 12 of the Evidence
Act, are relevant and admissible. The Court is therefore
urged to hold that it was proper for the Respondent to have
adduced evidence on the transaction involving Brila Energy
Ltd and Interall Ltd on the one part, and Napa Petroleum
Inc. on the other, because they are similar facts evidence
and therefore relevant.
In a reply on point of law, it is submitted that there is no
legal basis for the submission on the use of Section 12 and
similar facts evidence to support the trial Court's decision
as nowhere in the Judgment did the trial Court rely on
similar facts evidence. On the contrary, the trial Court
based its Judgment on suspicion and speculation which
were fuelled by irrelevant evidence of Appellant's
directorship of two other companies.
It is submitted that in embracing highly prejudicial
evidence, the trial Court and the Respondent ignored the
principle of law laid down in Makins V Attorney General
of New South Wales (1894) AC 57 at 67 on the
exclusion of similar facts
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evidence. The Privy Council laid down the rule on prima
facie exclusion of similar fact evidence in criminal cases
thus:
"It is undoubtedly not competent for the prosecution
to adduce evidence tending to show that the accused
has been guilty of criminal acts other than those
covered by the indictment for the purpose of lending
to the conclusion that the accused is a person likely
from his record or character to have committed the
offence for which he is being tried."
Reliance is also placed on Emeka v State (1998) 7 NWLR
(pt. 559) 556 at 580. It is submitted that where
evidence/dissimilar fact evidence is acted upon by the
Court, the Defendant is entitled to an acquittal. In addition,
the latin maxim res inter alia sactaalterinocere no dabet i.e.
a man ought not be prejudiced by what has taken place
between others, should not have been ignored by trial
Court.
Findings
It is true that the fact in issue before the trial Court was
whether or not the Appellant obtained subsidy by false
pretences, forged and uttered specific documents. The
legality of the transaction between Napa Petroleum Inc.,
Interall Ltd and the 2nd Defendant in respect of the
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993(
CA)
export of PMS was not the issue. The Appellant's
directorship of Interall Ltd and the fact that 2nd Defendant
allegedly exported petroleum products out of Nigeria
without approval/license was also not in issue. However,
much as this was mentioned by the trial Judge, it did not
form a part of the reasons for Appellant's conviction.
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 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 Sao
Sebastio in Brazil which was trans-shipped into M/T
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 Appellant 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 Brila
Energy Ltd being paid subsidy, was false. Consequently,
irrespective of the evidence of this
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993(
CA)
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 culpable in respect of the offences charged.
It is therefore evident, as readily admitted by the
Respondent, that the introduction of evidence in respect of
the relationship of the Appellant with port Cargo Experts
and Interall Ltd was done abundanti cautela in anticipation
that PW8 might be a tainted witness, given that he was
employed by port cargo Experts, a company in which the
Appellant had controlling interest and was a Director.
Nonetheless, the comments and observations of the learned
trial Judge in that regard could, at best, be considered an
obiter dictum which, contrary to the submission of learned
Senior Counsel for the Appellant, did not affect the case
already established against the Appellant by a suffuse of
other evidence. I therefore resolve this issue also in favour
of the Respondent.
Issue ten - Whether the failure of the learned trial
Judge to consider the evidence of prosecution
witnesses which are in favour of the innocence of the
Appellant and
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cast doubt in the prosecution's case did not result in
miscarriage of justice.
It is the contention of learned Senior Counsel for the
Appellant that the trial Court failed to accord full
consideration to the Appellant's case, especially evidence
which is favourable to him. Reference is made to the
evidence of the pW14 where he stated that the fuel was
imported and that Enterprise Bank had no evidence that
the fuel was purchased locally; that the shipping
documents were forwarded to Enterprise Bank through
DHL Courier Service by the corresponding Bank, Union
Bank UK; that the maker of the shipping document was the
seller of the fuel, NAPA. It is contended that the evidence
also revealed that Enterprise Bank wrote to NAPA and
NAPA responded to the Bank's inquiry, which response was
forwarded to the EFCC, the prosecuting agency. Since
EFCC did not tender the letter in evidence, it is submitted
that the trial Court ought to have invoked Section 167(d) of
the Evidence Act against the prosecution to presume that
EFCC withheld the response because it is adverse to its
case. Reliance is placed on UBA Plc v GS Ind. (Nig) Ltd
(2011) 8 NWLR (Pt. 1250) 590 at 621, paras C-E.
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It is further submitted that the evidence of PW14 and pW17
under cross-examination created reasonable doubt on the
case of the prosecution with respect to the offences of
forgery, uttering and Advance Fee Fraud. This is because
pW14 testified that the Bank had no evidence that the fuel
was not imported, but sourced locally; while PW17 stated
that the seller of the fuel normally collates the shipping
documents and forwards them to the buyer. It is argued
that these pieces of evidence, which were favorable to the
Appellant, were ignored by the trial Court and this led to a
miscarriage of justice. It is submitted that an accused
person or a defendant who decides to rest his case on that
of the prosecution where the prosecution's case is
manifestly weak or has been so discredited as a result of
cross-examination, is entitled to the benefit of doubt as his
guilt has not been established. Adesakin v State (2012)
LPELR-7883(CA); & Adamu v State (2014)
LPELR-22696(SC); & Shurumo v State (2010) 19
NWLR (pt. 1226) 73 at 107 per Rhodes-Vivour JSC are
relied on.
It is contended that the trial Court, instead of considering
the
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weakness, inconsistencies, and discrepancies in the
prosecution's case, wrongly found the Appellant guilty,
along with the 2nd Defendant, by focusing on the perceived
weakness in the case of the Appellant. The trial Judge also
failed to countenance the Appellant's constitutional right to
remain silent throughout his trial and that he has no
obligation to give evidence to shed light on the
discrepancies in the prosecution's evidence.
Learned Counsel for the Respondent did not respond to the
Appellant's submissions under this issue.
Findings
Be that as it may, the facts elicited under cross-examination
from the pw14 and Pw17, which was that the fuel was
imported and that Enterprise Bank had no evidence that
fuel was purchased locally; and that the shipping
documents in this regard which were sent to the Bank via
courier service by Union Bank UK, do not, without more,
vitiate the entire body of evidence adduced by the
Respondent of obtaining money by false pretences, forgery
and uttering of documents.
As was found by the learned trial Judge, it was the
Appellant who voluntarily and deliberately compiled and
submitted the bundle of documents attached
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993(
CA)
to Exhibit p1 to the PPPRA in proof of his 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 made the presentation in Exhibit p1 of his own
free-will. However, this presentation and some of the
documents were found to be false, forged and uttered.
In addition, the EFCC denied ever receiving the alleged
document of Napa petroleum (from Enterprise Bank),
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.
On the contention of the Appellant that the learned trial
Judge should have invoked the presumption in Section
167(d) of the Evidence Act against the Respondent for
failing to produce the letter from Napa
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993(
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Petroleum sent to it by Enterprise Bank, it was
unwarranted since the EFCC denied ever receiving such a
letter, and the Appellant did not consider it worth his while
to cause a 'Notice to produce' the document to be issued
and served on the Respondent. If the Appellant had
considered the letter sufficiently important to his defence,
he should have taken proactive steps to produce it before
the trial Court to establish his defence to the Charge.
Having not done so, he cannot now be heard to complain.
For these reasons, I resolve issue ten also against the
Appellant.
Issue eleven- whether the sentences imposed by the
Court below on the Appellant who has no criminal
record is an issue given the circumstances of the
case, is excessive.
This issue complains that the sentence of ten years
imprisonment imposed on the Appellant for Advance Fee
Fraud and eight years for forgery and uttering respectively
is excessive. It is contended by learned Senior Counsel for
the Appellant that, at all material times, the Appellant
acted on behalf of Brila Energy Ltd, the 2nd Defendant that
benefitted from the fuel import license and fuel subsidy.
Thus, that the
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CA)
Appellant's liability was joint and vicarious. Also, that the
record shows that Appellant has no criminal record.
It is argued that a punishment which keeps the Appellant
outside circulation for ten years is manifestly excessive in
the circumstance of the case, bearing in mind that the
Appellant is a first time offender. The Court is therefore
urged to reduce the sentences drastically, in the unlikely
event that the conviction is upheld. Finally, the Appellant
urged the Court to allow the Appeal and to set aside the
convictions and sentences imposed on the Appellant.
In response, it is submitted by learned Counsel for the
Respondent that the punishment of ten years imprisonment
for the offence of obtaining the sum of N963, 796, 199.85k
by false pretence and 8 years for forgery and uttering of
the documents involved in counts 2 to 13 are reasonable,
considering the web of fraud and deception made by the
Appellant through Exhibit P1. He rehashed the evidence in
this regard. Based on these, it is submitted that they are
conscious and deliberate acts of deception and fraud, as
found by the trial Court. This Court is therefore urged to
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affirm the decision of the trial Court on the sentence
imposed on the Appellant. Finally, the Court is urged to
affirm the Judgment of the lower Court and to dismiss the
Appeal.
Findings
It is apparent that the plea of learned Senior Counsel for
the Appellant for a reduction of the sentence on the ground
that it is excessive is mainly based on the fact that he is a
first offender who will be put out of circulation for a long
period of time. Learned counsel for the Respondent holds a
contrary view.
Sentencing may be defined as the judicial determination of
a legal sanction to be imposed on a person found guilty of
an offence. It means the prescription of a particular
punishment by a Court to someone convicted of a crime.
Sentencing generally aims at the protection of the society
through the prevention of crime or reform of the offender,
which may be achieved by the means of elimination,
deterrence or reformation/rehabilitation of the offender.
The justification is that, imposing the penalty will reduce
future incidences of such offences by preventing the
offender from re-offending or correcting the offender so
that the criminal motivation or
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inclination is removed; or by discouraging or educating
other potential offenders. See Usman v State (2015)
LPELR-40855(CA) at 40-41, paras D-B.
It has been established that an Appeal Court does not alter
a sentence on the mere ground that, if the learned Justices
of the Court had tried the Appellant, they might have
imposed a different sentence. For an Appeal Court to
interfere, the sentence must be manifestly excessive in
view of the circumstances of the case or be wrong in
principle. SeeUwakwe V State (1974) 9 SC 25.
The factors which guide the Court in the exercise of its
jurisdiction to review a sentence include -
(a) The gravity of the offence;
(b) The prescribed punishment for the offence;
(c) The prevalence of a particular of crime in a locality; and
(d) The circumstances of the offence to see if there are
grounds of mitigating the punishment.
The sentencing power of a Judge is predicated on his
discretionary powers, which must be seen to have been
exercised judicially and judiciously. See Zacheous V State
(2015) LPELR-24531(CA) at 49, paras A-E; Isang v
State (1996) 9 NWLR (Pt 473) 458; & Igboanugo v
State (1992) 3 NWLR (Pt. 228) 176.
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In most cases, the law fixes an upper limit and leaves a
Judge with the power to fix the sentence appropriate within
the limit, which may vary from a caution and discharge, a
binding over order, a fine or imprisonment, depending on
the Judge's view of the circumstances of the case.
However, the Judge is also bound to consider factors such
as the gravity or otherwise of the offence, the prevalence of
the offence, whether the convict is a first offender, and the
prevailing attitude of the populace to the offence. See
Zacheous v State (supra); & Onilikwu v COP (1981) 2
NLR 49. Thus where the law prescribes a maximum
sentence for an offence, the Court has a discretion to
impose less than the maximum prescribed by taking into
consideration extenuating factors such as the age of the
convict being a first offender, etc. See Amoshima V State
(2011) 14 NWLR (pt. 1268) 530 at 554 per Onnoghen,
JSC.
The Appellant was convicted for the offence of obtaining
money by false pretences contrary to Section 1(3) of the
Advance Fee Fraud and other Related Offences Act, 2006,
Forgery contrary to Section 467(2) (k) of the Criminal Code
Cap.C17 Laws of
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Lagos State; and Uttering contrary to Section 468 of the
Criminal Code Cap,C17 Laws of Lagos State. In respect of
the offence of obtaining money by false pretences, the
punishment prescribed under the law is conviction to
imprisonment for a term of not more than 20 years and not
less than seven years without an option of fine. For the
offence of forgery, the Law prescribes 3 years
imprisonment; and for Uttering, the Law prescribes 3 years
imprisonment.
I have stated the offences for which the Appellant was
convicted. Before passing sentence, the trial Judge
observed as follows:
"I have taken into consideration the statement that
the Defendants are first time offenders. I have also
noted the remorse of the 1st Defendant/Convict as
Defence Counsel has said."
Based on these considerations, a reduced sentence of 10
years out of the prescribed maximum of 20 years and
minimum of 7 years, was passed on the Appellant for
obtaining the sum of N963, 796.199.85k under false
pretences.
For the offence case of forgery, Section 467(2) (k) of the
Criminal Code Law prescribes a maximum of 3 years
imprisonment; while for the offence of uttering, Section
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468 of Code also prescribes a maximum of 3 years
imprisonment. The Appellant was charged for six counts of
forgery and six counts of uttering. Thus, for each of the six
counts of forgery, the prescribed punishment is 3 years;
while for each of the six counts of uttering, the prescribed
punishment is also 3 years imprisonment. By a simple
arithmetical calculation, the cumulative maximum penalty
prescribed by the relevant Laws for the six counts of
forgery is 18 years; and for the six counts of uttering, it is
also 18 years.
However, it is apparent that the learned trial Judge, in
consideration of the plea for a reduced sentence on the
ground that the convict is a first offender, sentenced the
Appellant to a total of 8 years imprisonment (instead of the
maximum of 18 years) for the six counts of forgery in
counts 2,4,6, 8, 10 and 12; and a total of 8 years
imprisonment (instead of 18 years) for the six counts of
uttering in Counts 3, 5, 7, 9, 11 and 13 of the charge, with
an order that the sentences should run concurrency.
Hence, it is evident that a minimum of the sentences
prescribed by Law was given for each of the 12 count of
forgery and uttering.
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As already stated, in sentencing, the trial Judge has a
discretion to exercise, and an appellate Court will not
lightly interfere with such exercise unless good reason is
shown. I am however not persuaded to disturb this
sentence since no good reason has been advanced to
warrant interference with the learned trial Judge's exercise
of discretion which, based on the meagre materials placed
before the trial Court in the allocutus was, in my humble
view judicious. I therefore fail to see how the sentence
imposed on the Appellant is manifestly excessive or wrong
in principle, given that the sentence is well within the lower
limit prescribed by the various applicable Laws. Before I
end, it must be said that the offences for which the
Appellant has been convicted are grave, especially the
offence of Advance Fee Fraud which has resulted in
depriving the Federal Republic of Nigeria of close to N1
Billion as an un-earned fuel subsidy paid to Brila Energy
Ltd. The unpatriotic actions by oil Dealers and Marketers
lead to a depletion of the scarce resources of this country,
causing untold hardship to citizens who are also forced to
waste valuable time and resources due
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to frequent bouts of fuel scarcity, which has the result of
affecting the economy of the country negatively. This issue
of payment of fuel subsidy paid for petroleum products not
imported and/or supplied, due to bogus claims has become
prevalent in the society and has, no doubt impacted
negatively on our fragile economy.
It must be disheartening to all right thinking Nigerians that
the rampant, atrocious and egocentric crime has unleashed
dire consequences on the integrity and image of the
country. This has both short and long term effects on the
society and the nation as a whole. Therefore, although the
punishment prescribed by law for the crime being
imprisonment without an option of fine as well as
restitution, may appear harsh and draconian, it is hoped
that it will deter like-minded persons from embarking on
such criminal ventures. Thus, for the reasons given, I
resolve this issue also in favour of the respondent.
As a consequence of all the above, this Appeal lacks merit.
It fails and is dismissed.
Accordingly, the judgment of the Lagos State High Court of
Just ice in Charge No. ID/196C/2012, between
Rowaye Jubril & Brila Energy Limited, delivered on March
16, 2017 by Okunnu, J., is affirmed.
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ONYEKACHI AJA OTISI, J.C.A.: I was privileged to
read in advance, a draft copy of the lead Judgment just
delivered by my learned Brother, Jummai Hannatu Sankey,
JCA in which the appeal herein was dismissed. The issues
distilled for determination have been, in distinctive manner,
painstakingly resolved, and I am in agreement. I will only
make few comments in support.
Limited liability companies are separate legal entities
which are enabled to conduct business in their own right,
with its legal rights and liabilities distinct from their
shareholders or officers. The locus classicus on the nature
of separate legal personality of a limited liability company
is the case of Salomon v Salomon & Co. Ltd (1897) A.C.
22. See also A.I.B. Ltd v Lee & Tee Industries Ltd
(2003) LPELR-9171(CA); Zest News Ltd v Senator
Mahmud Waziri (2003) LPELR-6238(CA). See Section
65 of the Companies and Allied Matters Act, 1990. One of
the primary reasons for incorporating a limited liability
company is to shield the individual shareholder(s) or its
officers from liability.
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The shareholders or officers are usually not personally
liable for the debts and actions of the company simply by
reason of being its shareholder or officer. The Courts would
however not hesitate to set aside this protective veil of a
corporation if the corporate form is abused.
One established circumstance when the veil of
incorporation would be lifted to reveal the persons behind
the veil is when the company in being used for an improper
purpose, such as when it is used to commit a fraud or
wrong. The law would go behind the veil of incorporation in
this circumstance, to expose and apprehend the individual
member of the company whose act or conduct is criminally
r e p r e h e n s i b l e ; O y e b a n j i v S t a t e ( 2 0 1 5 )
LPELR-24751(SC). The lifting of the veil would reveal the
individual member or officer of the company who would be
held accountable. Contributing to the decision in Oyebanji
v State (supra), Kekere Ekun, J.S.C said, pages 41 - 42 of
the E-Report:
"The circumstance in which the "veil of incorporation" of a
company may be lifted was succinctly stated in the case of:
Alade V. ALIC (Nig) Ltd. &. Anor. (2010) 19 NWLR
(Pt.1226) 111 @ 130 E-H & 142
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C-E where this Court held thus: Per Galadima, JSC at 130
E-H: One of the occasions when the veil of incorporation
will be lifted is when the company is liable for fraud as in
the instant case. In FDB Financial Services Ltd. V.
Adesola (2002) 8 NWLR (Pt.668) 170 at 174, the Court
considering the power of a Court to lift the veil of
incorporation held thus: "The consequence of recognizing
the separate personality of a company is to draw a veil of
incorporation over the company. One is therefore generally
not entitled to go behind or lift this veil. However, since a
statute will not be allowed to be used as an excuse to justify
illegality or fraud it is in the quest to avoid the normal
consequences of the statute which may result in grave
injustice that the Court as occasion demands have a look
behind or pierce the corporate veil." See further Adeyemi
V. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 33
at 51." Per Muntaka-Coomassie, JSC at I42 C-E "It must be
stated unequivocally that this Court, as the last Court of the
land, will not allow a party to use his company as a cover to
dupe, cheat and or defraud an innocent citizen who entered
into a lawful
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contract with the company only to be confronted with the
defence of the company's legal entity as distinct from its
directors."
The Supreme Court in Mma Inc. v Nma (2012)
LPELR-20618(SC), per Galadinma, JSC, at pages 48 - 49
of the E-Report, succinctly related the nature of the
company in this manner:
"A company is only a juristic person, it can act through an
alter ego, either its agents or servants. Evidence of PW1 is
given in that capacity. See KATE ENT. LTD. v. DAEWOO
NIGERIA LTD (1985) 2 NWLR (Pt.5) 116 on what a
legal status of a Company is. This Court held in that case
that:
"4.1.14...... At Common Law such company is a persona
ficta and can only act through its agents or servants. See
Lennards Carrying Co. v. Asiatic Petroleum Co. Ltd.
1915 AC 705 per Viscount Haldane L.C. at pp.713 -
714 and Bolton (Engineering) Co. Ltd. vs. Graham &
Sons Ltd. (supra) at p.172 per Denning L. J. who observed
that;
"A company may in many ways be likened to a human body.
It has a brain and nerve centre which controls what it does.
It also has hands which hold the tools and act in
accordance with directions from the centre. Some of the
people in
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the company are mere servants and agents who are nothing
more than hands to do the work and cannot be said to
represent the mind or will. Others are directors and
managers who represent the directing mind and will of the
company, these managers are the state of the mind of the
company and are treated by the law as such."
Where the director or manager of a company engages in
fraudulent activity in the name of the company, the veil of
incorporation will certainly be lifted to ascribe liability for
the criminal conduct. If particular statute so prescribes, the
identified officer of the company, as well as the company
itself shall be held accountable. See Section 10(1) of the
Advance Fee Fraud and Other Related Offences Act, 2006.
The Appellant was the Managing Director of the 2nd
defendant. His actions revealed that he had acted as the
alter ego of the 2nd defendant and indeed on its behalf. The
veil of incorporation was therefore rightly lifted to expose
and prosecute criminal activity. The Appellant was
consequently rightly prosecuted alongside the 2nd
defendant. I see no reason to disturb the conclusions of the
learned trial Judge in this regard.
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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. Section 37 of the
Evidence Act, 2011 provides that:
Hearsay means a statement
(a) oral or written made otherwise than by a witness in a
proceeding; or
(b) contained or recorded in a book, document or any
record whatsoever, proof of which is not admissible under
any provision of this Act, which is tendered in evidence for
the purpose of proving the truth of the matter stated in it.
Section 38:
Hearsay evidence is not admissible except as provided in
this Part or by or under any other provision of this or any
other Act.
The meaning and nature of hearsay evidence
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was described in Arogundade v State (2009)
LPELR-559(SC) by the Supreme Court, per Onnoghen,
JSC (as he then was) at page 23 of the E-Report in this
manner:
"In the case of Subramaniam vs Public Prosecutor,
(1956) 1 WLR 965 at969, heresay 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".
From the above, it is clear that the purpose for which a
statement made by a person to the witness is tendered in
Court determines its admissibility since if the intention of
introducing the evidence is to establish the truth of the
statement/evidence it would be hearsay and inadmissible
but would be admissible if the purpose or intention is to
establish the fact that the statement was made by the
person concerned."
In Ojo v Gharoro (2006) LPELR-2383(SC) at page 16 of
the E-Report, Tobi, JSC,
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described hearsay evidence as follows:
"When a third party relates a story to another as proof of
contents of a statement such story is hearsay. Hearsay
evidence is all evidence which does not derive its value
solely from the credit given to the witness himself, but
which rests also, in part, on the veracity and competence of
some other person. See Judicial Service Committee v.
Omo (1990) 6 NWLR (Pt.157) 407. A piece of evidence
is hearsay if it is evidence of the contents of a statement
made by a witness who is himself not called to testify. See
Utteh v. The State (1992) 2 NWLR (Pt. 223) 257."
See also: Utteh v State (1992) LPELR - 6239(SC); FRN
v Usman (2012) LPELR-7818(SC).
Although hearsay evidence is generally inadmissible, the
provisions of the Section 38 of the Act make it clear that
the law regarding hearsay is not cast in iron. There are
exceptions to the rule. The main exceptions to the hearsay
rule are contained in Part IV in the Evidence Act, 2011.
One of the exceptions is in respect of records made or kept
in the course of regularly conducted activity of a business,
organization, occupation or calling, whether or not for
profit.
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Relevant thereto are the provisions of Sections 41 and 51 of
the Act which provide as follows:
Section 41 :
A statement is admissible when made by a person in the
ordinary course of business, and in particular when it
consists of any entry or memorandum made by him in
books, electronic device or record kept in the ordinary
course of business, or in the discharge of a professional
duty; or of an acknowledgment written or signed by him of
the receipt of money, goods, securities or property of any
kind; or of a document used in commerce written or signed
by him; or of the date of a letter or other document usually
dated, written or signed by him:
Prov ided that the maker made the s tatement
contemporaneously with the transaction recorded or so
soon thereafter that the Court considers it likely that the
transaction was at that time still fresh in his memory.
Section 51:
Entries in books of accounts or electronic records regularly
kept in the course of business are admissible whenever
they refer to a matter into which the Court has to inquire,
but such statements may not alone be sufficient evidence to
charge any person with liability.
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The phrase in the ordinary course of business underscores
a requirement of routineness and repetitiveness employed
in keeping of traditional or typical business records. On the
said proviso to Section 41 which requires for the
admissibility of the statement made contemporaneously
with the transaction recorded or so soon thereafter, I agree
with the learned author, Sir T.A. Nwamara in Discovery,
Disclosure and Admissibility of Electronic Evidence in
Nigeria at page 141 thereof that:
"The addition of the words "or so soon thereafter" means
that the recording of the statement may not always be
strictly synchronous to make the record admissible but
there must be a clear and immediate approximation in
terms of the same relative period and space."
Section 51 covers entries made in account books or
electronic records made in the ordinary course of business.
The phrase regularly kept is not synonymous with correctly
kept. The accounts or electronic record must have been
kept in accordance with certain fixed or customary method
or system. If the records are found to be regularly kept,
though not to correctly kept, it may affect the weight to be
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attached to the entries therein but not the admissibility of
the records. By the provisions of Section 51, such
statements may not alone be sufficient evidence to charge
any person with liability. There must be corroborative
evidence to prove the items therein.
The evidence before the lower Court was that the EFCC
had requested for certain information available from
records kept by the company, Saybolt Nigeria, by letter,
Exhibit 6. Saybolt Nigeria had its sister company as Saybolt
Concremat in Brazil. Both companies had their parent
company Saybolt domiciled in Netherlands. The evidence of
PW17 that all three companies were connected in their
business concern was not impugned. Electronic records of
business activities made in the ordinary course of business
and entered contemporaneously with the transaction
recorded or so soon thereafter does not constitute hearsay
evidence. PW17 gave detailed evidence on how the record,
Exhibit P7, which constituted record kept in the ordinary
course of business by Saybolt Brazil was made available. By
virtue of the provisions of Sections 41 and 51, the said
Exhibit P7 did not constitute hearsay evidence.
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Being computer generated evidence, the next crucial
hurdle was whether the said record, Exhibit P7 , complied
with the further provisions of Section 84 of the Evidence
Act 2011. Exhibit P7 may not be hearsay but it must comply
with the provisions of Section 84. The pre-conditions for
admissibility of electronically generated evidence is
provided for in Section 84. In challenging the credibility of
Exhibit P7, the Appellant has contended that the
Respondent failed to tender a certificate of trustworthiness
of the computer used in printing the documents in
compliance with Section 84(2) and (4). Section 84 provides:
(1) In any proceedings, a statement contained in a
document produced by a computer shall be admissible as
evidence of any fact stated in it of which direct oral
evidence would be admissible, if it is shown that the
conditions in Subsection (2) of this Section are satisfied in
relation to the statement and the computer in question.
(2) The conditions referred to in Subsection (1) of this
Section are
(a) that the document containing the statement was
produced by the computer during a period over which the
computer was used regularly to store
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or process information for the purposes of any activities
regularly carried on over that period, whether for profit or
not, by anybody, whether corporate or not, or by any
individual;
(b) that over that period there was regularly supplied to the
computer in the ordinary course of those activities
information of the kind contained in the statement or of the
kind from which the information so contained is derived;
(c) that throughout the material part of that period the
computer was operating properly or, if not, that in any
respect in which it was not operating properly or was out of
operation during that part of that period was not such as to
affect the production of the document or the accuracy of its
contents; and
(d) that the information contained in the statement
reproduces or is derived from information supplied to the
computer in the ordinary course of those activities.
(3) Where over a period, the function of storing or
processing information for the purposes of any activities
regularly carried on over that period, as mentioned in
Subsection (2) of this Section was regularly performed by
computers, whether
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(a) by a combination of computers operating over that
period; or
(b) by different computers operating in succession over that
period; or
(c) by different combinations of computers operating in
succession over that period; or
(d) in any other manner involving the successive operation
over that period, in whatever order, of one or more
computers and one or more combinations of computers, all
the computers used for that purpose during that period
shall be treated for the purposes of this section as
constituting a single computer; and references in this
section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a certificate
a. identifying the document containing the statement and
describing the manner in which it was produced; or
b. giving such particulars of any device involved in the
production of that document as may be appropriate for the
purpose of showing that the document was produced by a
computer; or
c. dealing with any of the matters to which the conditions
mentioned in Subsection (2) above relate, and purporting
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to be signed by a person occupying a responsible position
in relation to the operation of the relevant device or the
management of the relevant activities, as the case may be,
shall be evidence of the matter stated in the certificate, and
for the purpose of this subsection it shall be sufficient for a
matter to be stated to the best of the knowledge and belief
of the person stating it.
(5) For the purposes of this section
a. information shall be taken to be supplied to a computer if
it is supplied to it in any appropriate form and whether it is
supplied directly or (with or without human intervention)
by means of any appropriate equipment;
b. where, in the course of activities carried on by any
individual or body, information is supplied with a view to its
being stored or processed for the purposes of those
activities by a computer operated otherwise than in the
course of those activities, that information, if duly supplied
to that computer, shall be taken to be supplied to it in the
course of those activities;
c. a document shall be taken to have been produced by a
computer whether it was produced by it directly or (with or
without human
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intervention) by means of any appropriate equipment.
The provisions of Section 84 which state conditions for
admitting in evidence any electronically generated
document, are central in determining the admissibility of a
document emanating from a computer. The main objective
of these provisions is to authenticate and validate the
reliability of the computer which generated the evidence
sought to be tendered. It was necessary to prove that a
computer was operating properly and was not used
improperly before any statement in a document produced
by the computer could be admitted in evidence. Evidence in
relation to the use of the computer must therefore be called
to establish compliance with the conditions set out in
Sec t i on 84 (2 ) . I n Kubor v Dickson (2012)
LPELR-9817(SC), the Supreme Court, per Onnoghen, JSC,
affirmed that computer-generated evidence or documents
which did not comply with the pre-conditions laid down in
Section 84(2) were inadmissible. My views expressed in
Sylva & Anor v INEC & Ors (Unreported) Appeal No:
CA/A/EPT/281/2016 delivered on June 24, 2016, which
was affirmed by the Apex Court in Dickson v Sylva & Ors
(2016)
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LPELR-41257(SC) at page 15 of the E-Report, remain
relevant, as follows:
"In this digital age when different creations can be
achieved electronically, the reason for the requirement of
authentication or certification of the gadget or computer
used in producing and processing the electronically
generated documents is not farfetched. The party seeking
to rely on such evidence must be able to show that the data
and information contained in the electronically generated
document is truly what it claims to be.
The pre-conditions for admissibility set down by Section 84
are to establish this fact. The relationship between the
computer and the information is crucial. The electronic
evidence must be produced from a computer or gadget that
is inherently reliable and has been in operation over the
relevant period. There is no doubt that with present and
even future technological advances, the pre-conditions
attached to admissibility of electronically generated
evidence by Section 84 may no longer be sufficient to
authenticate the reliability of electronic evidence. However,
these challenges are not in issue herein. One constant is
that a computer or gadget will
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only reproduce what has been fed into it. The computer or
gadget will demonstrate or play what it receives. This is the
reason why there is no further need for certification of the
computer or gadget to be used to demonstrate or to play an
already properly admitted electronically generated
evidence, which had complied with the pre-conditions of
Section 84."
The burden of proving that there had been no improper use
of the computer and that it was operating properly could be
discharged without calling a computer expert. It may be
discharged by calling someone familiar with its operation in
the sense of knowing what the machine was required to do
and who could say that it was doing it properly. In other
words, oral evidence may be given of the working of the
computer in line with the provisions of Section 84(2). See:
R v Shephard [1991] 93 Cr.App.R.139, in which the
provisions of Section 69 of the U.K. Police and Criminal
Evidence Act, 1984 (now repealed by Section 60 of the U.K.
Youth Justice and Criminal Evidence Act 1999) were
considered. Section 84 of the Evidence Act, 2011 is
similarly worded with the said Section 69 of the U.K. Police
and Criminal
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Evidence Act. 1984. In Dickson v Sylva (supra), the
Supreme Court, per Nweze, JSC, at pages 23 -24 of the E-
Report said:
"Interpreting provisions similarly worded like Section 84
(supra), the defunct House of Lords [per Lord Griffiths] had
this to say in R v. Shepherd [1993] 1 All ER 225, 231,
paragraphs A-C, [HL], Documents produced by computers
are an increasingly common feature of all businesses and
more and more people are becoming familiar with uses and
operation. Computers vary immensely in their complexity
and in the operations they perform. The nature of the
evidence to discharge the burden of showing that there has
been no improper use of the computer and it was operating
properly will inevitably vary from case to case. The
evidence must be tailored to suit the needs of the case. I
suspect that it will very rarely be necessary to call an
expert and that in the vast majority of cases it will be
possible to discharge the burden by calling a witness who is
familiar with the operation of the computer in the sense of
knowing what the computer is required to do and who can
say that it is doing it properly. [Italics supplied for
emphasis]
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In actual fact, Section 84 (supra) consecrates two methods
of proof, either by oral evidence under Section 84(1) and
(2) or by a certificate under Section 84(4). In either case,
the conditions stipulated in Section 84(2) must be satisfied.
However, this is subject to the power of the Judge to
require oral evidence in addition to the certificate. As the
eminent Lord Griffith explained in the said case [R v.
Shepherd]: 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
[Italics supplied for emphasis]"
Thus, proof that the computer used to generate evidence is
reliable can be provided in two ways:
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either by calling oral evidence, under Section 84(2) or by
tendering a written certificate, under Section 84(4). The
uncontroverted evidence of PW17 before the trial Court
supplied the details required by Section 84(2). The
computer generated evidence, Exhibit P7, tendered by
PW17 was therefore admissible and rightly relied upon by
the learned trial Judge.
For these reasons and for the more comprehensive reasons
given in the lead Judgment, I find no merit in this appeal.
The appeal is also dismissed by me. The decision of the trial
Court is hereby affirmed.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of
reading in advance the lead judgment which has just been
delivered by my learned brother, Sankey, JCA, and I agree
with the reasoning and conclusion therein.
For the purpose of emphasis, I will add a word or two of
mine. There is no doubt that the law as established since
the case of Salomon v Salomon & Company Ltd (1987)
AC 22 is that an incorporated Company has a direct and
separate legal personality from its members and officials.
The consequence of recognizing the separate personality of
a company is to draw a
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veil of incorporation over the company. One is generally not
entitled to go behind or lift the veil for the purpose of
attaching liability to its officers. This doctrine of the law
has been codified in Sections 37 and 65 of the Companies
and Allied Matters Act. However, since a statute will not be
allowed to be used as an excuse to justify illegality or fraud,
it is in the quest to avoid the normal consequences of the
statute which may result in grave injustice that the Court
as occasion demands may have a look behind or pierce the
veil of incorporation to see those behind the veil. One of the
instances where the veil of incorporation may be lifted is
where the company is liable for fraud. SeeAlade v Alic
(Nig) Ltd (2010) 19 NWLR (Pt. 1226) 111 and
Oyebanji v State (2015) LPELR-24751.
Section 10(1) of the Advance Fee Fraud and Other Fraud
Related Offences Act provides an occasion for the lifting of
the veil of incorporation of a company to see and hold
criminally liable the natural person who instigated an
offence by a company under the said Act along with the
company. See Nwude v FRN (2016) 5 NWLR (Pt 1506)
471.
The offences for which the
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appellant and his company stood trial for and were
convicted of were under the said Act and so that brought
Section 10(1) of the Act on stage.
These is also no doubt that the appellant was/is the "alter
ego" of the company. By the doctrine of alter ego the Court
disregards corporate entity and holds individual
responsible for acts knowingly and intentionally done in the
name of the corporation. This is done where the individual
disregarded the entity of the corporation and made it a
mere conduit pipe for the transaction of his own private
business. Liability springs from fraud perpetrated not on
the corporation but on third persons dealing with thee
corporation. See Oyebanji v State supra.
As has been demonstrated in the lead judgment, the
appellant and his company forged and uttered documents
to mislead the PPPRA into paying it the sum of
N963,796,119.85 as fuel subsidy for PMS purportedly
purchased from Brazil and shipped on board the vessel MT
Overseas Limar where no such importation took place. This
case therefore presented a classical instance for the
application of the doctrine of alter ego and the lifting of the
veil of incorporation.
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It was the contention of appellant's senior counsel that
Exhibit P7 was inadmissible on the ground, inter alia, that
being computer-generated documents the certificate of
authentification required by Section 84(4) of the Evidence
Act 2011, was not tendered. If is now established that the
requirement of Section 84(2) and (4) of the said Act can be
satisfied by oral evidence of a person familiar with the
operation of the computer as to its reliability and
functionality. See R v Shephard (1993) AC 380 and
Dickson v Sylva (2017) 8 NWLR (Pt 1567) 167, when
the Supreme Court held that:
"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".
The evidence of PW17 satisfied the required of this to
law.''
The evidence of the witness in this regard was all that was
needed to satisfy Section 84(2) and (4) of the Evidence Act
as the requirement therein is in respect of the computer
used in downloading the information.
The four documents the subject of counts 2, 4, 6, 8, 10 and
12 which were alleged to have been
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forged and were attached to Exhibit P1 were conclusively
proved to be forged by the evidence of PW5, a
representative of the company who purportedly issued
them. The witness denied that the company issued the
documents or did the job of inspections of ship to ship
transfer of PMS as claimed in these documents. The
documents told lies about themselves and were used by the
2nd defendant to secure payment from the PPPRA. The trial
Court therefore rightly concluded that they were forged
and also rightly convicted the appellant for their forgery as
he knowingly presented them for payment. See Agwuna v
AG Federation (1995) 5 NWLR (PT 396) 418.
It is for the above reasons and the more comprehensive
reasons ably marshaled in the lead judgment of my learned
brother that I agree that the appeal lacks merit and I also
dismiss it.
I abide by the consequential orders made in the lead
judgment.
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Appearances:
Prof. Taiwo Osipitan SAN and Lawal Pedro SANwith him, Wale Ilesanmi, Esq., Toyeeb Sanni Esq.,Chidayo Okeowo Esq., Adewunmi Abioye, Esq.,and Koyinsola Osipitan, Esq. For Appellant(s)
S.K. Atteh Esq., with him, K.M.A. Olusesi, Esq.,and T.J. Banjo For Respondent(s)
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