The administration of justice as a system tries to maintain a core balance between the search for truth, the fairness of the process and ensuring justice. To this end, one of the major cardinal principles of criminal jurisprudence is that an accused person must be presumed to be innocent until the contrary is proved by credible and legal testimony beyond reasonable doubt. If there is a single principle of criminal jurisprudence that is well rooted and jealously guarded, it is that an accused person must in every case be presumed to be innocent unless and until the contrary is established. This is enshrined in the 1999 Constitution of the Federal Republic of Nigeria, in Section 36(5). This principle forms the foundation of our criminal system, of which no departure is accommodated. In the celebrated case of Woolmington v DPP, it was referred to as the “golden thread” that runs throughout criminal law. It was held that;
“Throughout the web of English Criminal Law, one golden thread is always to be seen, that is the duty of the prosecution to prove the prisoner’s guilt…. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law and no attempt to whittle it down can be entertained” Per Viscount Sankey.
At all stages of a criminal proceeding, and under all conditions, the departure from the golden thread is not permissible. It is the rule in criminal law that a prosecution has to make out their case beyond all reasonable doubt, and until this is done, the accused is presumed innocent. In a case where an accused pleads guilty to a charge of murder, being a capital offence, the practice is thus; in view of the nature of the offence, that plea must be put aside, and a plea of not-guilty recorded for the accused. The plea ought not to be given effect to and allowed to negate the presumption of innocence in respect of the charge. Only a full-blown trial can determine whether that is the case or not. The Supreme Court in Nkie v. FRN held as follows;
“If a person charged with murder or any other offence which the law prescribes the death penalty pleads guilty to it, a plea of not guilty is to be recorded by the Court on his behalf and the case heard as if he had pleaded not guilty. In any other circumstance, his actual plea is to be recorded”.
Furthermore, a weak and false defence on the part of an accused does not disturb this presumption, for the inaccuracy or weakness of the case of the defence does not aid a shaky prosecution case. No circumstance beyond positive proof of guilt by the prosecution beyond all reasonable doubt can negate the original presumption of innocence in favour of an accused.
The Indian Supreme Court in the case of Nisar Ali v State of U.P., in overturning the decision of the Court of Appeal quoted a passage from the judgement of the Court of Appeal as follows:
“The respondent himself did not have the courage to say that he did not find them at the spot. If he were innocent, he must have come out of his house immediately on hearing the noise and must have known who was present there and who was not.”
It then went on to hold that:
“The above passage is so destructive of the cardinal principle of criminal jurisprudence as to the presumed innocence of an accused person till otherwise proved, that it has become necessary to reiterate the rule that it is the duty of the prosecution to prove the prisoner’s guilt, subject to any statutory exceptions.”
The last statement above ‘subject to any statutory provisions’ provides the most complex facet of the doctrine of presumption of innocence. This caveat is also instant in the 1999 constitution, by Section 36(5) where it stated;
“…………. Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
On the clause, ‘subject to any statutory provisions’, there has been a lot of mêlée as to its effect vis-à-vis the principle that burden of proof lies on the prosecution.
The question that is most frequently asked is, whether in the case of a statutory provision placing the burden of proving any particular fact on an accused, the burden on the prosecution is therefore lifted and whether it displaces the presumption of innocence on his behalf?
The Evidence Act provides some interesting examples. Section 135 (2) provides that: “The burden of proving that any person is guilty of a crime or wrongful act is, subject to the provisions of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in action.”
Section 139(1) in turn provides that the burden of proving any circumstance, the existence of which might afford an accused any exemption, exception, qualification or operation of law against the offence he is charged with is on the accused.
From the onset, it is hereby submitted that Section 139 does not relieve the prosecution of its duty to prove beyond reasonable doubt in anyway, neither does it shift or contemplate to shift that burden away from the prosecution. A community reading of Section 36(5) of the Constitution, Section 135(2) and Section 139(1) of the Evidence Act, clearly shows that the prosecution maintains the burden of proving his case beyond reasonable doubt, which he shares with no one, and upon the discharge of the duty, the burden of casting reasonable doubt now shifts to the accused, of which he may then raise any of the qualifications, exemptions or exceptions provided for by Section 139(1) of the Evidence Act. It is the same for many of the numerous presumptions found in the Evidence Act and in cases where the defence intends to rely on the defence of intoxication or insanity. Nwadialo in his book, while relying on the case of Areh v COP, argued that:
“The same proposition also follows from the fact that it is the prosecution which asserts the affirmative of the issue of the guilt of the accused and therefore must prove this issue and also from its burden of rebutting the presumption of innocence.”
Similarly, a statute may permit a natural presumption of fact from certain proved facts, for instance, under Section 167(a) of the Evidence Act, a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. This presumption is only permissible, and it is not to be drawn unless and until the explanation of the accused is considered and found unsatisfactory. The law in this instance follows that, where the accused offers a reasonable explanation which may be true and therefore raises a doubt of his guilt, he is entitled to an acquittal, for the presumption of innocence in his favour is not displaced. Where the law places a presumption against an accused, the degree of proof required to rebut the presumption is likened to that of civil cases; which is on the preponderance of evidence.
Daudu v FRN
The case of Daudu v FRN was met with a lot of literature. The Supreme Court had the privilege of pronouncing on Section 19(3) of the Money Laundering Act, which says if an accused person is in possession of pecuniary resources or property which is disproportionate to his known source of income, or he obtained an accretion to his pecuniary resources or property, the burden of giving a satisfactory account of how he made the money or obtained the accretion shifts to him.
The Supreme Court in its decision held that:
“Proving Money Laundering cases is a herculean task because it requires a prior establishment of the predicate offence before the money laundering aspect can be established. To obviate this problem a remedy was introduced by statutorily inferring money laundering from not only the conduct of the defendant but his lifestyle which is similar to the Proceeds of Crime Act 2002 of the UK. Even though Section 36(5) of the 1999 Constitution provides that every person charged with a criminal offence shall be presumed to be innocent until he is proven guilty, the proviso allows for shifting the burden of proof on the defendant” ………………………………….
The prosecution is relieved of the burden of having to prove that the money so found in his account or in his possession is proceeds from illicit traffic in narcotic drugs or psychotropic substances or of any illegal act. To explain the point further, where A is a fixed salary earner and suddenly his account is credited with an amount beyond his income or has property which his legitimate income cannot afford, the burden shifts to him to explain how he got the money with which he bought the property or the legitimate transaction he was engaged in for which the account was credited”.
The most prevalent argument against the decision of the Supreme Court above is that it trumps on the age-old principle of criminal jurisprudence that the onus of proof lies solely on the prosecution. I submit with due respect that this is a mis-construction of the Supreme Court’s rationale.
The prosecution at all times, has the general burden of proof in a criminal matter, that is the duty of proving the guilt of an accused is solely on the prosecution, however, there is a lower burden, known as evidential burden, which shifts from the prosecution to the accused and vice versa as the case progresses. There is also a general burden of proof of reasonable doubt on an accused, which only comes to play when the prosecution has proved its case beyond reasonable doubt. It is at this point that the burden can be said to have shifted. Section 135(3) of the Evidence Act provides that:
“If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
In Daudu v FRN (supra), it is not the contemplation of the Supreme Court to usurp the constitutionally prescribed presumption of innocence and the burden of proof of the prosecution in money laundering cases. A defendant is not expected to lead evidence before the prosecution in satisfaction of Section 19(3) of the Money Laundering Act, but once the prosecution has proved the ingredient of Money Laundering, the burden shifts to the accused to prove the legitimacy of the money in question. The burden in this case is not to proof his innocence, but to create a reasonable doubt on the case of the prosecution as provided for by Section 135(3) of the Evidence Act. Section 19(3) of the Money Laundering act and the provisions of other relevant statutes that place a burden on a defendant to prove certain facts do not remove or contemplate to remove the original burden on the prosecution to prove its case beyond reasonable doubt. It must be noted, that the burden of proof on the accused in such cases is lesser than that of the prosecution and it is enough for the accused to make out the truth of his defence in all reasonable probability but not beyond doubt.
On the 22nd of March 2021, an aide to the President communicated via a tweet that Lifestyle Audit was now legal in Nigeria. Although the legal backing of the message of the tweet is still a mystery, there were concerns as to whether a lifestyle audit would be an infringement on the constitutionally prescribed presumption of innocence. Lifestyle audit is a tool used to determine the income of a person. It involves background searches, suspect profiling, financial investigation, lifetime analysis among others.
Lifestyle audits are hinged upon the belief that the quality of one’s life and possession are an indication of their financial capacity. The Kenyan Supreme Court in the case of Kenya Anti-Corruption Commission v. Stanley Mombo Amuti opined as follows: “Any indication of incongruity between an individual’s income and their lifestyle should therefore call for investigations and possible recovery of the proceeds of corruption”.
Although I have reservations on the effectiveness of Lifestyle Audits and also maintain the concern for the possible abuse of the machinery by officials, I posit that Lifestyle Audits are not in any way an affront on the presumption of innocence. In fact, agencies like the Economic and Financial Crimes Commission (EFCC) already have similar powers under their enabling laws.
For example, Section 7 of the Economic and Financial Crimes Commission (Establishment) Act of 2004, already allows for lifestyle audit. Specifically, Section 5 of the Act provides that:
“(1) The Commission has power to – Special powers of the Commission
(a) cause investigations to be conducted as to whether any person, corporate Commission body or organization has committed any offence under this Act or other law relating to economic and financial crimes
(b) cause investigations to be conducted into the properties of any person if it appears to the commission that the person’s lifestyle and extent of the properties are not justified by his source of income;
It is the submission of the writer therefore, that Lifestyle Audits are not a breach of a person’s right of the presumption of innocence. The right is constitutional and can only be taken away by a repeal of the Constitution. Lifestyle audits allow only for investigation and questioning, and not a presumption of guilt, as the guilt of a suspect or accused can only be determined by a Court of law. As a reiteration, the Court in Auta v. The State held:
“So, the duty on the prosecution is to prove all cases beyond reasonable doubt before the Court can pronounce the guilt of the accused person.”
It has been shown that the principle of presumption of innocence is well rooted in criminal jurisprudence and it is the influence of the fundamental principle that permeates every criminal trial, rearing its head in the disposal of criminal cases, whether the prosecution by its evidence has failed to satisfy the necessary degree of proof for conviction, or it is held that suspicion is not proof, or it is shown that there is no legal proof of crime as the ingredients have not been proven, or the finding is sort to be defended by the notorious maxim that “it is better that ten guilty men should be set free than one innocent man to suffer”. It is also why any doubt in the case of a prosecution is resolved in the favour of the accused.
- Y H Rao and Y R Rao, criminal trial: fundamentals & evidentiary aspects (4th ed.) 2011, LexisNexis.
- J.A. Agaba, practical approach to criminal litigation in Nigeria (3rd ed.) 2015, Emerald publication.
- The Constitution of the Federal republic of Nigeria, 1999 (as amended). 1935 AC 462
 (2014) LPELR-22877 (SC)
 AIR 1957 SC 366,
 (1959) WRNLR 230
 (2018) 10 NWLR (Pt.1626) 169
  eKLR
 (2018) LPELR-44490(CA)
Written by: FESTUS IBUDE
Festus is the Team lead of the Dispute Resolution/Litigation Group at Omaplex Law Firm. His practice focuses on working with clients to manage crises and defend complex multiparty and multi-jurisdictional matters. He handles a diverse range of litigation matters in State and Federal Courts across the country, with interest in civil and criminal litigations. Festus also has significant experience defending class actions and election petitions.
Festus has represented private clients and government agencies in crisis management situations, including engaging with regulators and law enforcement, developing litigation strategy, and defending clients through all stages of litigation and arbitration.
He has experience of all forms of commercial dispute resolution, including substantial contract, partnership, property and corporate disputes, professional negligence, class actions, judicial review and financial services litigation.