Nature of Predicate Offences in Relation to Money Laundering Charge
In the Supreme Court of Nigeria
Holden at Abuja
On Friday, the 2nd day of December, 2022
Before Their Lordships
Musa Dattijo Muhammad
Chima Centus Nweze
Uwani Musa Abba Aji
Mohammed Lawal Garba
Helen Moronkeji Ogunwumiju
Justices, Supreme Court
SC.1171C/2018
Between
CAPTAIN EZEKIEL BALA AGABA APPELLANT
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT
(Lead Judgement delivered by Honourable Uwani Musa Abba Aji, JSC)
Facts
Sometime in 2015, the Economic and Financial Crimes Commission (EFCC) carried out an investigation into the activities of the Appellant who was the then Executive Director, Maritime Safety and Shipping Development at the Nigerian Maritime Administration and Safety Agency (NIMASA), in relation to a fraud perpetrated at the Agency. The investigation revealed that the Appellant was involved in the fraud, and further to this, the Appellant and five others were arraigned before the Federal High Court, Lagos, on a 22 count charge ranging from conspiracy to commit money laundering, money laundering, and inducing the Federal Government of Nigeria to approve and deliver to (NIMASA) the sum of N795,200,000.00 (Seven Hundred and Ninety Five Million, Two Hundred Thousand Naira) under false pretence. At the trial, the Respondent called 12 witnesses and tendered several exhibits – Exhibits P1-P77, in proof of its case. At the close of the prosecution’s case, the Appellant made a no case submission in respect of the specific allegations of money laundering brought against him and refused to enter a defence to the evidence adduced against him by the Respondent. The trial court overruled the no case submission made by the Appellant. Dissatisfied, the Appellant filed an appeal before the Court of Appeal. In its judgement, the Court of Appeal allowed the appeal in part with respect to counts 21 and 22, and ordered the Appellant to enter his defence at the trial court with respect to counts 1-20 which were in relation to the offences of conspiracy to commit the offence of money laundering and money laundering of various sums of money on various dates as stated in the charge filed at the trial court.
Dissatisfied with the decision of the Court of Appeal ordering him to enter his defence at the trial court on the allegations contained in counts 1-20, the Appellant appealed to the Supreme Court.
Issue for Determination
The Apex Court considered the following issue in its determination of the appeal:
Whether the Court of Appeal was right in dismissing the Appellant’s appeal, and to have used the elements of the offence of conversion to hold that a prima facie case of money laundering had been established against the Appellant to warrant opening his defence to the counts 1-20 at the trial court.
Arguments
On this issue, it was the submission of counsel for the Appellant that both the Appellant and the Respondent had joined issues on the nature of the offence established at the trial court by the Respondent which was to the effect that the evidence adduced by the prosecution witnesses at the trial only sought at best to establish the offence of conversion rather than the offence of money laundering for which the Appellant was charged and tried. He argued that the Court of Appeal was wrong to have held that a prima facie case was established against the Appellant sufficient to warrant opening his defence to the allegations in counts 1-20, without construing the nature of the evidence adduced by the Respondent and its legal effect on the jurisdiction of the trial court. He submitted that going by the record of appeal, the Court below ought to have come to the conclusion that the Respondent having failed to adduce further evidence in support of the offence of conspiracy to commit the offence of money laundering from which the elements of the main offence of money laundering could be distilled as against the offence of conversion or stealing from which the offence was predicated; then the Federal High Court lacked the jurisdiction to try the Appellant for the predicate offence of conversion/stealing which is an offence under the Criminal Laws of Lagos State. He referred the court to FRN v YAHAYA (2015) LPELR-24269 (CA).
Counsel for the Appellant further submitted that it is immaterial that the charge against the Appellant was brought under the Money Laundering Act which cloaks the Federal High Court with exclusive jurisdiction, however what was important at the stage of considering the no case submission was whether the elements of the offence of money laundering for which the Appellant was charged in counts 1-20 were established from the evidence adduced at the trial, to warrant calling on the Appellant to enter his defence.
Conversely, counsel for the Respondent argued that the Appellant was charged with conspiracy to convert and conversion of proceeds of unlawful activity contrary to the provisions of the Money Laundering (Prohibition) (Amendment) Act, 2012; and considering the evidence of the Respondent’s witnesses and the several exhibits tendered by the Respondent at the trial court, the Respondent had made out a prima facie case against the Appellant to necessitate him to enter his defence. He further argued that the predicate offence that is referred to in section 15 (1) of the Money Laundering (Prohibition) (Amendment) Act, 2012, like any other unlawful act, includes the offence of criminal conversion or stealing prescribed under sections 383-390 of the Criminal Code Act. He submitted that apart from proving the elements of the offence of conspiracy against the Appellant, the Respondent also made out a prima facie case of conversion against the Appellant in counts 2, 4, 6, 8, 10, 12, 14, 16, 18 and 20 of the charge and there was prima facie admission by the Appellant that the various sums of money allegedly converted were either handed over to the Appellant in US dollars or personally converted to his own use or to the use of his cronies. He urged the court to dismiss the appeal.
Court’s Judgement and Rationale
The Apex Court, in its determination of the issue before it reproduced the provision of the Section 15(1-3) of the Money Laundering (Prohibition) (Amendment) Act, 2012 and held that it is clear that the particulars and ingredients of conversion/stealing are well defined and contained under Section 15(1() & (2) of the Money Laundering (Prohibition) (Amendment) Act, 2012. The Court held further that the law insists that a charge of the offence of money laundering must be accompanied by a predicate offence and prior proof of the predicate offence is a sine qua non to the proof of the offence of money laundering. Predicate offences cannot be separated, as far as proving money laundering is concerned, and therefore, they become a part and parcel of the offence of money laundering. The Apex Court agreed with the submission of the Respondent’s counsel that the offences of criminal conversion or stealing under Sections 383-390 of the Criminal Code Act are predicate offences as regards laundered funds and held further that once money laundering is involved, any predicate offence is fused to the money laundering charge, so as to confer jurisdiction on the court handling the money laundering case. Thus, where the offence of conversion or stealing is a predicate offence, the Federal High Court has the requisite jurisdiction to try the Appellant. The Court made reference to the decision of the Court of Appeal in FRN v YAHAYA (2015) LPELR-24269 (CA) (PP. 29 PARA C) to the effect that a predicate offence is an offence whose proceeds may become the subject matter of any of the money laundering offences and an action that provided the underlying resources for another criminal act, such that the Federal High Court has the exclusive jurisdiction to try any predicate offence created under any law together with a charge of money laundering before it.
The Court reiterated that the offence of conversion/stealing which the Appellant’s counsel termed a predicate offence and argued is different from the charges against the Appellant, is indeed, imbued and well situated in Section 15(1() & (2) of the Money Laundering (Prohibition) (Amendment) Act, 2012 under which the Appellant was charged. Finally, the Apex Court held that it is clear that Exhibits P1-P77 admitted by the trial court linked the Appellant who was the Chairman of the Committee for the Implementation of International Ship and Ports Security with his cronies, to have used companies to pull out funds from the Committee’s accounts without NIMASA’s authority, and transfer to various Bureau de Change operators and individuals, which were used to acquire properties. The Court of Appeal was thus, right to hold that the Appellant has a case to answer and should enter his defence at the trial court.
Appeal Dismissed.
Representation
E. D. Onyeke, Esq. for the Appellant.
A.B.C Ozioko, Esq. for the Respondent.
Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)
