By O. G. Chukkol
Let us first ask ourselves few questions as a necessary prelude to this discourse.
Is there limit to the amount of money, whether local or foreign currency, that one can keep at home or move around with? Must one keep his money in the bank? Is it a criminal offence to keep large sum of cash in a house or move around with same? What if I am found with millions or even billions at home, am I bound to give explanation to anyone? This article seeks to address these questions.
In the case of EFCC V Thomas (2018) LPELR-45547(CA), Thomas sent someone with millions of dollars cash to Abuja from Lagos. At the airport, EFCC seized the money and arrested the person sent with the money. When Thomas claimed his money from the EFCC, he was arrested. Thomas filed an action for the enforcement of his right to own property. High Court gave judgement in his favour and the said judgement was affirmed on appeal. The Court of Appeal while delivering judgement held thus:
“The act of keeping money at home or other places of choice is not a named offence in any law in this country. The Anti Money Laundering Act does not have such provision and the E.F.C.C. Act also has nothing in that direction. Furthermore, there is also no known offence for travelling with money legitimately earned within the country. The requirement of declaring sums beyond a threshold is only when you are travelling outside the country. Travelling from Lagos to Abuja is still within the territorial jurisdiction of the country known as Nigeria.”
Based on the above decision of the Court of Appeal, it means under our corpus juris (body of laws), a Nigerian has the unfettered right to keep any amount he has in his house or move around with it. He can keep it under his pillow, bed, inside his car etc. No one is bound to keep his money in the bank and no one shall be arrested or prosecuted for keeping a large sum of cash at home.
However, let me quickly state that the right to keep ones money at home is to be exercised within certain limits. Because:
•••Making or accepting cash payment exceeding 5million is a criminal offence if it is not done through a financial institution. See section 1 of the Money Laundering Act and the case of ATOYEBI v. FRN (2017) LPELR-43831(SC)
•••spraying money, dancing, marching or writing on or squeezing it is a criminal offence. See section 21 (2)&(3) of CBN Act, 2007.
•••converting or transferring resources or property derived directly or indirectly from drugs related offences or any other crimes or illegal acts with aim of concealing or disguising the illicit origin of the resources or Property is a crime. see section 15 of the Money Laundering Act and UDEOGU v. FRN & ORS (2016) LPELR-40102(SC).
••• Etc
This leads us to the next but vexed point:
WHAT IF THE MONEY FOUND IN POSSESSION OF A PERSON IS SUSPECTED TO BE ILLEGITIMATE OR BEYOND THE PERSON’S EARNING?
Our administration of criminal justice system in Nigeria is adversarial in nature. This is rooted in the operation of section 36(5) of the constitution which is to the effect that a person is presumed innocent until proven guilty. By that provision, the duty is always on the prosecution to prove the guilt of an accused person. Is not for an accused person to prove his innocence.
It should be noted that generally there are two types of burden of proof. Viz:
•••Legal burden of proof and
•••Evidential burden of proof.
Legal burden of proof does not shift at all. It rests squarely on the prosecution throughout a trial whereas evidential burden of proof does shift.
Legal burden of proof refers to the duty on the prosecution to prove the guilt of an accused person beyond reasonable doubt. Evidential burden on the other hand refers to the duty of adducing evidence in support of one’s case. Here once the prosecution establishes a prima facie case that can sustain a charge, the burden of adducing evidences shifts to the accused person to disprove the case of the prosecution.
Some few days ago the case of DAUDU v. F.R.N. (2018) LPELR-43637 (SC) was everywhere in the media with diverse captions but all pointing to a single direction to the effect that in Money Laundering and corruption cases, the Defendant has to establish the legitimacy of a money found in his possession. Of course this is very true. But People stretched the words and intention of the noble justices of the Supreme Court to a bizarre extent. They went as far as suggesting that the Supreme Court meant the state has no duty to prove the guilt of the accused once found in possession of pecuniary resources or property beyond his means.
With the greatest respect, this is a height of misconception informed by the failure to read the judgement of the court as a whole. Besides; the court merely gave life to an existing law, to wit, section 20(2) of the Money Laundering Act. We have similar provisions in other legislations like section 19(5) of the EFCC Act, section 319A of the Penal Code, sections 132 and 136 of the Evidence Act, 2011 etc. These provisions are strictly limited only to evidential burden as explained earlier.
The Supreme in Daudu V FRN (supra) never intended to turn law to its head nor intended to repeal or nullify the presumption of innocence entrenched in section 36(5) of the constitution. Furthermore, it was not the intention of the Court to introduce an inquisitorial system of administration of justice which requires a person to prove his innocence. Besides, it does not have power to do so. What the Court did was to restate the law as it relates to evidential burden of proof in money laundering cases. Evidential burden is based on public policy and the need for an accused person to at least say something in respect of the charge against him. In fact by section 137 of the Evidence Act, 2011, such explanation is to be on balance of probability. That is to say, once his explanation is the most probable, the case of the prosecution shall fail.
The position as it is today is that, when a person is found with money far beyond his legitimate income, the prosecution must still have to charge him to court, open its case, call witnesses, tender documents and establish a prima facie case before the accused person enters his defence; else the accused can be discharged and or even be acquitted if he files a no case submission. A person cannot be guilty simply because he is in possession of pecuniary resources or property beyond his legitimate income. Presumption of innocence is constitutional and same has not been amended by the National assembly
Strictly Legal Precedents
