By Efe Duku, Esq.
In her seminal work, ‘China’s Gilded Age: The Paradox of Economic Boom and Vast Corruption’, Yuen Yuen Ang projects a novel two-dimensional matrix of corruption with four distinct corruption variants, including ‘grand theft’. According to Ang’s thesis, grand theft occurs where the elite class audaciously siphon, embezzle, loot or otherwise corruptly remove huge sums of financial resources from public or corporate treasuries for themselves. Nigeria is specifically and shamefully named in Ang’s work as a global leader in grand theft.
Ang’s researched perspective on corruption in Nigeria corroborates a pervasive thinking in Nigeria that corrupt public leaders and officials and their counterparts in our corporate system generally see and treat public or corporate resources within their fiduciary control as their private estate or entitlements, and therefore corruptly target and misappropriate the resources to satisfy their primitive avarice.
Somehow, the corrupt think the law licenses them to freely enjoy their loots due to real and perceived systemic weaknesses and, more particularly, what they see as near impossible burdens placed on prosecutors to prove crimes alleged against them. On this, they are often very quick to simplistically point to the provision of section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) (“1999 Constitution”) as their impregnable shield of defence. This is a serious mistake.
For some context, Section 36(5) of the 1999 Constitution provides that: “Every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty provided that nothing in this Section shall invalidate any law by reason only that the law imposes upon any person the burden of proving particular facts”. While often trumpeting the herculean and fixed legal burden of proof placed on the State to prove the guilt of a “person who is charged with a criminal offence”, those who engage in grand theft disingenuously pretend that the proviso in this provision that places on them an equally arduous but preponderating evidential burden to prove “particular facts” of their presumed innocence is either not there or inchoate. This is the pith and marrow of the case of Gabriel Daudu v Federal Republic of Nigeria (2018) LPELR-43637(SC) where the Supreme Court of Nigeria, per Aka’ahs, JSC, unanimously and boldly stated with admirable clarity that “[t]he burden lies on an accused person to explain properties he acquired which are disproportionate to his known legitimate earnings.”
By this decision in Daudu, the Noble Lords of the Supreme Court clarified that the purport of section 36(5) of the 1999 Constitution is that every accused person is presumed innocent until proven guilty, but the defendant must discharge any evidential burden placed upon him by any law to prove particular facts of his innocence. In other words, it is not enough to simplistically say, ‘he who alleges must prove’, as often trumpeted by some corrupt elite and their sympathisers. It is not enough to loot the public till and trust in legal technicalities or what may appear as some form of benevolent coverings of the law. Far from it. A huge, dynamic evidential burden rests on defendants who are alleged to have corruptly enriched themselves from the public treasury to prove their source of wealth. That is the law in Nigeria, and it is good law.
Let us briefly consider some key facts and evidential issues in the case. Daudu was an appeal to the Supreme Court against the judgment of the Court of Appeal holden in Abuja which affirmed the Appellant’s conviction by E. Ekwo, J. of the Federal High Court sitting in Lokoja. The Appellant, Mr. Gabriel Daudu, a former Caretaker Chairman of Ogori/Magongo Local Government Area of Kogi State, was found guilty by the trial court on 75 counts in a 208-counts charge of money laundering in contravention of the then Money Laundering (Prohibition) Act, 2004 (later Money Laundering (Prohibition) Act, 2011, but now Money Laundering (Prevention and Prohibition) Act 2022). The charge was brought against the Appellant by the Economic and Financial Crimes Commission (“EFCC”) pursuant to a petition by a socio-cultural association of indigenes of the Local Government who felt the Chairman was living larger than his legitimate income could afford.
Of particular relevance here is the fifth issue formulated by the Appellant for determination at the Supreme Court. There, Daudu invited the apex court to determine whether the Court of Appeal was right in affirming the trial court’s decision to admit and ascribe probative value to ‘uncertified’ documentary evidence and, if not, what would be the effect of expunging them from the case? In other words, if the said documents were expunged from the records, would his conviction still stand? Among others, the Appellant specifically contended that –
(a) that since it was not enacted and in force as of 2008 when the charge was filled, the Court of Appeal erred in upholding the decision of the trial court to apply the Evidence Act, 2011 to computer-generated documents which were admitted in evidence in the case, thus bringing the issue of exception to the general rule against retroactive operation of statutes into play;
(b) statements of accounts/computer-generated statements of accounts of the Appellant and the Local Government generated by their banks, formally obtained by the EFCC and tendered by the Commission at the trial as evidence did not satisfy the threshold of admissibility in terms of certification in section 84(1), (2) and (4) of the Evidence Act, 2011 and ought to have been expunged from the records of the court;
(c) the EFCC’s reports of investigation into the alleged offence of money laundering by the Appellant detailing unexplained lodgments into and withdrawals from Daudu’s and the Local Government’s bank accounts, and related suspicious bank transactions by the appellant/his proxies were wrongly admitted in evidence through a witness who was not their maker and therefore ought to have been expunged from the records, but lower courts failed to do so;
(d) official records of the Local Government, which were not certified by the Local Government Area as the appropriate authority, were wrongly admitted in evidence and the Court of Appeal sustained that error; and
(e) the finding of the trial court that the totality of the appellant’s evidence was not credible was perverse having not flowed from a proper evaluation of the said evidence.
As already indicated, in the end, the Supreme Court preferred the Respondent’s case to that of the Appellant, and consequently held that –
(a) as a procedural, adjectival law, the Evidence Act, 2011 was properly applied to the case by the trial court to guide the admissibility of the bank-generated documents as affirmed by the Court of Appeal, and so, the Appellant’s contrary argument that it should have been the law as at the time the charge was filed was misconceived;
(b) bank statements obtained by the EFCC and its investigation reports were properly admitted in evidence through a witness who did not make them, being documents arising from the ordinary course of EFCC’s business which, as custodian, is entitled to deliver under section 104(3) of the Evidence Act, noting that “[t]he submission of the appellant that PW6, not being a party to the documents could not tender them and that the documents amount to documentary hearsay was misplaced”;
(c) it is presumed that before the banks surrendered the computer-generated documents tendered to the EFCC, they must have certified that the contents of the statement of accounts were correct – implying that there is ‘inherent’ certification or authentication as to their content which dispenses with the requirements of section 84 of the Evidence Act, 2011;
(d) the records of the Local Government that were certified by the EFCC (instead of the Local Government) did not contribute to the Appellant’s conviction as they were rightly discountenanced by the trial court; and
(e) as concurrently decided by the courts below, the Appellant’s evidence was not credible, as several documents tendered by him were in conflict with the oral testimony given by and for him.
In view of the foregoing and more, the Supreme Court found no merit in the appeal, accordingly dismissed it, and affirmed the Appellant’s conviction.
In reaching its decision in this matter, the Supreme Court extensively considered issues regarding documentary evidence, including computer-generated evidence, in proving or disproving facts alleged by the State against a defendant. The apex court rightly drew a distinction between ‘legal burden of proof beyond reasonable doubt’ which rests and stays with the prosecution in a criminal trial process, as opposed to the ‘evidential burden of proof’ which constantly shifts from the prosecution to the defendant depending on where the pendulum of evidence swings in the proceedings, whether civil or criminal. By resting the evidential burden on the defendant depending on the facts-led swinging of the pendulum, the law sensibly ensures that a defendant responds appropriately to key factual issues in his or her trial, especially where undue, unmerited self-enrichment is in issue.
By its judgment in this case that has given unqualified traction and clarity to the nation’s anti-corruption policies and regime in general, the Supreme Court unanimously approved that, by the letters and spirit of the Money Laundering Act, the correct position of the law (as intended by Section 36(5) of the Constitution) is that a bounden evidential burden is placed upon a defendant to satisfactorily explain the source(s) of his wealth to the court if it is shown that he is in possession of more wealth than he has legitimately earned, otherwise appropriate penal sanctions would accrue. This is an ominous warning to treasury looters, especially reckless political office holders, who are in the habit of primitively acquiring wealth that defies sensible explanations or assets at costs that far above their legitimate earnings to desist. Maybe they should be reminded that it was a mere socio-cultural association that initiated this case with a simple petition. Such associations are everywhere in Nigeria, and watching.
