The decision of the Supreme Court of Nigeria in the recent case of DAUDU v. FRN (2018) 10 NWLR (Pt.1626) 169, 183 E -F (2018) LPELR-43637(SC), has generated so much debate and divergent opinions and interpretations. While some lawyers and politicians

appear to believe that it has substantially changed the coloration and established position of our criminal justice system, others believe it has merely reinforced and restated the position of the law, and did not upstage or overturn it.

Same Judgment, different interpretations. In the light of these conflicting views therefore, it becomes expedient to try and see what the Apex Court has decided. Therein lies the necessity and relevance of this paper.

In the case under consideration, the Supreme Court of Nigeria is reported to have declared that “the burden lies on an accused person to explain properties he acquired which are disproportionate to his KNOWN legitimate earnings.”

Some lawyers have interpreted this declaration to mean that “once it is shown that one has much more than one should have had, THEN IT IS FOR ONE TO EXPLAIN,” further implying that an accused person now has the burden to prove his innocence, instead of the evidential burden of a fact within his knowledge as us usually the case; or else he would be thrown into jail.

With due respect, that’s not what the judgement has said. Besides, I do NOT think the judgement has CHANGED the adversarial or accusatorial nature of Nigeria’s criminal justice system as entrenched in the provisions of the Constitution of the Federal Republic of Nigeria, 1999, dealling with the presumption of innocence of an accused persons in criminal proceedings in Nigeria. The principle is not anything new, that “one may be held to give an account if one’s amount or source of income/wealth is suspicious.” The Money Laundering (Prohibition) Act (Nigeria) is littered with provisions in this respect.

In my opinion, what the apex court has done in DAUDA v. FRN (Supra) was merely to restate the extant position of law. Now, however, it is noticed that some politicians and lawyers are trying to twist this clearly unambiguous judgement with a view to achieving some ends unconnected to the judgment and obviously unknown to law — perhaps that of wrestling rule of law and due process to the ground, to make way for the possible enthronement of individual predilections and the personal whims and caprices of leaders and prosecutors as the major or sole determinants of criminal guilt in Nigeria.

Respectfully, I have some questions for our colleagues, especially those who are parading this DAUDA V. FRN with the sole aim of importing into the judgment, what is not there in our laws:

1⃣Has the judgment in DAUDA V. FRN upturned section 35 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, which upholds an accused person’s right to be presumed innocent until his guilt is established beyond reasonable doubt? 2⃣Has the judgment changed our system of criminal justice from adversarial and accusatorial (which is the EXTANT system) to inquisitorial or inquisitional? The major object of the adversarial processes is to give every bit of benefit of the doubt to any person or persons suspected of or accused but not yet convicted. It is only in this way that we can be sure that only the guilty is punished. Hence the prosecutor or accuser must necessarily establish the guilt of the accused person by credible evidence independently and freely secured.

3⃣Has the case changed the provisions of the 1999 Constitution that insist that an accused person must not be made to suffer any infraction to/of his personal liberty unless and until his guilt is established through due process before a court of law? Note for example section 35. (1) (a)&(b) of CFRN, 1999, as amended): “Every person shall be entitled to his personal liberty and no person shall be deprived of such liberty save in the following cases and in accordance with a procedure permitted by law – (a) in execution of the sentence or order of a court in respect of a criminal offence of which he has been found guilty; (b) by reason of his failure to comply with the order of a court or in order to secure the fulfilment of any obligation imposed upon him by law;”

4⃣Has the case of DAUDA v. FRN altered or overruled the reasoning, ratio and legal principles established in clear terms by the Supreme Court in the case of CHIBUIKE AMAECHI v. INEC (2008) 5 NWLR (Pt 1080) where the Apex Court (per George Adesola Oguntade, J.S.C) had declared as follows? “I say again that convictions for offences and imposition of penalties and punishments are matters appertaining exclusively to judicial power…. An indictment is no more than an accusation… once a person is accused of a criminal offence, he must be tried in a court of law or other tribunal where the complaints of his accusers can be ventilated in public and where he would be sure of getting a fair hearing. …The jurisdiction and authority of the courts of this country cannot be usurped by either the Executive or the Legislative branch of the Federal or State Government under any guise or pretext whatsoever…. It is not a simple matter to find a citizen of Nigeria guilty of a criminal offence without first ensuring that he is given a fair trial before a Court of Law….It is simply impermissible under a civilized system of law to find a person guilty of a criminal offence without first affording him the opportunity of a trial before a court of law in the country. Even during the trial the burden to prove his guilt beyond reasonable doubt is on the accuser Indeed, it is a subversion of the law and an unconcealed attempt to politicize the investigation and prosecution of criminal offences to hold otherwise.”

5⃣Has DAUDU v. FRN altered the provisions of Article 4 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 to the effect that “no one may be arbitrarily deprived of this right?”

6⃣Has DAUDU V. FRN erased the effect of Article 7(1)(b) of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act, CAP A9, LFN, 2004 that “every individual shall have the right to have his cause heard without prejudice? Does this not comprise, as Article 7 states, the right to be presumed innocent until proven guilty by a competent court or tribunal? From all the aforesaid, it is clear that the case of DAUDA v. FRN, though a good decision, has not changed anything in our laws, neither has it introduced anything new. Accordingly, we need to be wary of the way we twist some judgements of courts and sections of laws in Nigeria to suit our vested interests. We must realize that the rule of law is *for all and for no one particular.* The process of administration of criminal justice under a civilized constitutional democracy operating the adversarial criminal justice system requires as a matter of necessity that everything is and must be done to ensure the safety of citizens and that no one is punished or made to suffer unjustly or prematurely. Further, a major part of the cardinal duties of the state or prosecutor in criminal proceedings as reinforced in the case of Enahoro v. The State (1965) 1 All NLR 125 is to be just, impartial and fair and to not persecute or victimize accused persons to achieve illegal ends. The prosecutor has an added duty to refrain from trying to obtain conviction at all cost. Hence in R. Sugarman (1936) 25 Cr. App. R. 109, the Criminal Appeal Court (UK) had warned that “the business of the state counsel is fairly and impartially to exhibit all the facts to the jury. The crown has no interest in procuring a conviction but that the right person be convicted..” Put differently, the function of the state or the prosecutor under the Constitution is not to tack as many skins of victims as possible against the wall; it is rather to vindicate the rights of the people as expressed in the laws and to give those accused of crime a fair trial (Hon JUSTICE WILLIAMS ORVILLE DOUGLAS). Justice, though due to the accuser and the society, is due to the accused also. The concept of fairness cannot be strained till it is narrowed down to a filament; we are to keep our balance true (HON JUSTICE BENJAMIN CARDOZO in Snyder v. Massachusetts, 291 U.S. 97, 122 (1934). The import of all these is that punishment for breach of any law must be done in line with procedures and processes set down by law. Therein lies the indispensability of the supremacy and applicability of rule of law. Anything short of this takes us back to the age of “might is right,” which would usher in an end to constitutionalism and decency, civility and order. It might as well be an end to the existence of an organized state. Consequently, any attempt to interpret the judgement in DAUDA V. FRN to mean that it is now the accused person that has the statutory burden/duty of proving his innocence (rather than vice versa) would leave us, one and all, at the mercy of the state and the individual whims of the state leaders, and, believe me, equally leave the leaders at the mercy of the led. Beause what’s sauce for the goose is sauce also for the gander. If a leader can do to any citizen whatever he or she (the leader) likes, likewise, citizens reserve the right to do to the leader whatever they (the citizens) wish, under the same guise. This is what had informed the following warning by Sir Thomas Moore: “if you cut all the Laws down, and you’re just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake!” Accordingly, the greatest and safest way to civility and progress for any society is for the society to embrace rule of law as its inviolable creed, to which both the leaders and the led are subject. Any action of the people, the leaders and anyone, however well intentioned, if it runs contrary to the dictates of rule of law is an anathema and constitutes a grave threat to the foundation of society, being an invitation to chaos. A society that ignores rule of law welcomes rule by arbitrariness and the subjective predilections of people in authority. Rule of law is the basis for any functional democracy. And without rule of law in a democracy, chaos becomes the norm. As Mahmoud Abbas once declared, we cannot build the foundations of a state without rule of law. Perhaps, the wise words of one-time American army general, statesman and 34th President of the USA, Dwight D. Eisenhower (1890-1969) would help to drive this point securely home: “the clearest way to show what the rule of law means to us in our everyday life is to recall what could happen when there is no rule of law.” Finally on this, the rule of law establishes principles that constrain the power of governments and public bodies, obliging each to conduct himself/herself/itself according to a series of prescribed and publicly known rules. This is why Obaseki, JSC, stated in the Military Governor of Lagos State vs. Ojukwu (2001) FWLR (Part 50) 1779 at 1802, para B-E, “the Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.” I would like to conclude this opinion by drawing, with full endorsement, from a comment made by my respected learned senior and friend, Major Ben Aburime (rtd) on the actual import of the recent decision in DAUDA V. FRN. Says he: “The SC has not overturned the constitutional provision on presumption of innocence or changed the onus, burden and standard of proof in our criminal jurisprudence. What it has decided is that once the prosecution has proved its case, the defendant has the evidential burden to negative it. The standard of that burden is minimal and once introduced, the duty to prove otherwise reverts back to the prosecution. Let’s get it clear that the SC can only interpret our laws as they stand, NOT change it. The burden of proving a case beyond reasonable doubt is on the prosecution, and it never changes. That burden and onus is different from the evidential burden demanded of the defendant in cases such as this. It is not good law to expect a defendant to prove his innocence, instead of the prosecution proving his culpability through known orthodox means….” While it is long established that evidential burden may shift temporarily, where necessary, yet the legal burden (which is on the State/prosecution) to prove the guilt of the accused beyond reasonable doubt does not and will never shift, even if or even where the accused remains mute or refuses to say anything at all in his defence. This is the position that is elucidated upon by respected Major ABURIME in the comment I referred to with unhesitant approval. What more can I say on this? It is a truism already that evidence of suspicion no matter how strong and/or evidence of the opportunity to commit the offence charged does not and cannot replace legal proof of the commission of the criminal allegation against the person charged with the offence (see Abieke and Anor. v. State (1975) N.S.C.C. 404 at 408; (1975) LPELR-8042(SC). This position is reinforced in the case of Samuel Bozin v. The State (1985) 7 SC 450 where the supreme court had declared that “suspicion, however grave does not amount to legal proof.” Finally, in another Supreme Court case, Osarodion Okoro v. The Sate (1988) SC (Part II) 83, it was held that “the protection of the accused person who is presumed to be innocent cannot be curtailed by the strength of the case founded on suspicion, however strong. A conviction must be founded on evidence establishing the guilt of an accused beyond reasonable doubt.” It is however unfortunate that all I hear in Nigeria is pretty much of people’s calling out to punish the guilty with only very few concerned to clear the innocent. This becomes much more worrisome when such emanates from legal practitioners who are expected themselves to be custodians and advocates of rule of law and due process, irrespective of their political or sectional leanings. The lawyer is not just a mere citizen, but a minister of justice, a member of an honourable, learned profession and as such is expected by Rule 1 of the Rules of Professional Conduct for Legal Practitioners in Nigeria (2007) to always to uphold and observe the rule of law and to promote and foster the cause of justice. By the very special nature of their calling, lawyers have an added responsibility to educate the public on the core demands of law of evidence, due process, and rule of law. Specifically, the lawyer has a duty to accentuate the difference between a mere “accusation/speculation,” and verified information or statement. These duties and functions lay on the lawyer a variety of legal and moral obligations towards the public for whom the existence of a free and independent profession itself is an essential means of safeguarding human rights in face of the awesome power of the state and other interests in society (Balin Hazarika: 2012). If Nigerian lawyers for whatever reasons fail in these core duties, our hope of building, sustaining and advancing true democracy and constitutionalism would become a mirage.

I rest my case.

Those who have ears, let them hear!