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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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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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

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& 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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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...

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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;

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(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

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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

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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

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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

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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;

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(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

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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

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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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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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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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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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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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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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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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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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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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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