FRN v. ATUCHE & ORS
(2022)LCN/16691(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 23, 2022
CA/LAG/CR/66/2021
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
FEDERAL REPUBLIC OF NIGERIA APPELANT(S)
And
MR. FRANCIS ATUCHE 2. MRS. ELIZABETH ATUCHE 3. MR. UGO ANYANWU RESPONDENT(S)
RATIO
THE POSITION OF THE LAW ON THE PURPOSE OF PRELIMINARY OBJECTION
Now, it is settled that a Preliminary Objection at the hearing of an appeal is an opposition to its hearing, and should be promptly raised by the Respondent’s counsel before the Learned Silk to the Appellant adopts his Oral Submissions. The purpose of a Preliminary Objection is to terminate the hearing of an appeal at the threshold. Furthermore, a Court and an Appellate Court as in this instant case are duty bound to consider the merits of the Objection to determine whether the Objection is meritorious, before proceeding to determine the main appeal. It is a cardinal principle of the Administration of Justice to let the party raising the Preliminary Objection to the hearing of the appeal, know the fate of his Application regardless of the frivolity of the Objection. PER BANJOKO, J.C.A.
THE CONDITION THAT MUST BE SATISFIED BEFORE A PRELIMINARY OBJECTION WILL BE CONSIDERED BY THE COURT
A Preliminary Objection, which complies with the Provisions of Order 10 Rule 1 of the Court of Appeal Rules 2021 with particular regard to giving the other party three clear days’ notice setting the Grounds on which the Objection is raised, has satisfied the necessary foundation for consideration by the Court. See KALAGBOR VS INEC & ORS (2008) LPELR – 4387 CA.
In LAWSON VS OKORONKWO & ORS (2018) LPELR – 46356 SC, the Supreme Court Per EJEMBI – EKO JSC stated as follows: “When this Motion was heard, Mr. Joe Agi, SAN, of Silk for the Appellant, contended that it is incompetent, having not been brought as Notice of Preliminary Objection because it challenges the competence of the appeal. This to me appears to be a distinction or objection as to the form and not the substance. In KALAGBOR VS INEC & ORS (2008) LPELR – 4387 (CA) lbiyeye, JCA, relying on this Court’s definition of what a Notice of Preliminary is, states that a Motion on Notice seeking to terminate the life of a Suit is a Notice of Preliminary Objection. Persuaded by this apt definition of what Notice of Preliminary Objection is, I hereby adopt it. He says: It is instructive – to say that a Motion by which a Respondent challenges the competence of a Suit (or Appeal) and thus the Jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a Special Procedure whereby the Respondent contests the competence of a Suit (or Appeal) and the Jurisdiction of Court, and if upheld, has the effect of terminating the life of the Suit (or Appeal) by its being struck-out. See GALADIMA VS TAMBAI (2000) 5 SCNJ (Part 1) 195 at 206. PER BANJOKO, J.C.A.
THE POSITION OF LAW WHERE THERE IS PROOF OF SERVICE ON A PARTY BY MEANS OF AFFIDAVIT OF SERVICE
The law is settled that where there is Proof of Service on the party by means of an Affidavit of Service deposed to by the Bailiff of a Court or by an Officer of the Court, the only recommended and acceptable way of rebutting this presumption is by filing a Counter-Affidavit to controvert the Affidavit of Service. The failure of the party to file a Counter-Affidavit is fatal, as it will be presumed that he was served with the Originating Process.
In this instant case, there ought to have been filed a further affidavit specifically confronting the exhibits that evidenced the fact that all attempts to serve the Respondents were rebuffed and also that service was not effected on the officer in charge of the correctional facility where he was detained.
Section 168 (1) of the Evidence Act 2011 provides as follows:
“When any Judicial or Official Act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
In EMEKA VS OKOROAFOR (2017) 11 NWLR (PART 1577) PAGE 410, the Supreme Court held as follows:
“An Affidavit of Service deposed to by the Bailiff of a Court stating the fact, place, mode and date of service and describing the process or documents served shall be prima facie proof of the matter stated in the affidavit. The presumption of regularity in this regard is rebuttable. A Defendant who intends to challenge the affidavit of service deposed to by the Bailiff must file an Affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.” See also IBWA VS SASEGBON (2007) 16 NWLR (PART 1059) PAGE 195, FATOKUN VS SOMADE (2003) 1 NWLR (PART 802), NWACHUKWU VS STATE (2002) LPELR – 2084 SC, AKEEM VS STATE (2017) LPELR – 42465 SC, TORRI VS NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR – 8142 SC, CHIEF LEO DEGREAT MGBENWELU VS AUGUSTINE N. OLUMBA (2016) SC, ELC 2313 AT PAGE 1 AND EUNICE ONWUBUYA & 3 ORS VS EMMANUEL O. IKEGBUNAM (2019) SC, 78 NSCQR AT 493.” PER BANJOKO, J.C.A.
WHETHER OR NOT SERVICE OF COURT PROCESS IS TIED TO A COURT’S JURISDICTION
It is settled that the Service of Court Process is intimately tied to the Court’s Jurisdiction. It is the fulfillment of this condition that clothes the Court with the Jurisdiction to hear a suit. The purpose of Service is to notify the Respondent of the pending appeal so that he can be able to defend the Judgment of the trial Court. Failure to serve a Party is a fundamental defect that robs the Appellate Court of Jurisdiction. The party not served is entitled Ex Debito Justitiae to have the proceedings of that Court and any Judgment emanating therefrom, set aside. Lack of Service where required, deprives the Court of the competence and jurisdiction to hear the Suit.
See ODEY VS ALAGA (2021) 13 NWLR (PART 1782) PAGE 1, AKINLOYE VS ADELAKUN (2000) 5 NWLR (PART 657) PAGE 182, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR, NWABUEZE VS OKOYE (1988) 4 NWLR (PART 911) PAGE 664, HABIB NIG BANK VS OPOMULERO (2000) 15 NWLR PART 690 PAGE 315, ALHAJI ODUTOLA VS INSPECTOR KAYODE (1994) 2 SCNJ 21. PER BANJOKO, J.C.A.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Lagos State delivered on the 16th June, 2021 by Hon. Justice L. A. Okunnu in Charge No ID/154C/2011, as seen at Pages 48 – 288 of the Record of Appeal.
The Appellant who was the complainant at the trial Court, by an Amended Information, accused the Respondents of many Counts of Conspiracy to Steal and Stealing various Sums of Money said to be the Property of Bank PHB Plc., by the Grant of Fictitious Loans in the Total Sum of N18,200,000,00 (Eighteen Billion, Two Hundred Million Naira). They were also accused in other Counts of Stealing Money from this Bank and using the money to buy its Shares for certain named Companies. There were also allegations of Conspiracy to Steal, and of Stealing concerning two of the Companies that were made against all the three Respondents, contrary to the provisions of Section 516 of the Criminal Code of Lagos State.
The 1st Respondent was the Managing Director and Chief Executive Officer of the Bank while the 3rd Respondent was the Chief Financial Officer of the Bank. The 2nd Respondent is the wife of the 1st Respondent.
At the conclusion of trial, in its Final Judgment, the Trial Court convicted the 1st and 3rd Respondent on Counts 1 – 11, 14 – 20, 23 and 24 and discharged and acquitted them of Counts 12, 13, 21, 22 and 26 of the Amended Information.
The 2nd Respondent was discharged and acquitted of all the Counts for which she was charged.
The Appellant, unhappy with the Decision of the Trial Court filed a Notice of Appeal dated 9th September, 2021 on Eleven Grounds, namely: –
Ground 1
The Learned Trial Court erred in law when in discharging the 2nd Respondent of the Offences in Counts 23, 25 and 27 of the Charge; it held that the Prosecution failed to prove its case against her. (Nine particulars were listed on this ground.)
Ground 2
The Learned Trial Court erred in law when notwithstanding the unchallenged evidence before the Honourable lower Court as to the 2nd Respondent’s majority shareholding in Ghazali Yakubu Investment Limited and AFCO Associates Limited, it held that the 2ndRespondent “…Succeeded in casting reasonable doubt on the case made out against her.” (Four particulars were listed on this Ground)
Ground 3
The Learned Trial Judge erred in law when it held that:
“…With respect to the case against the 2nd Defendant, I reiterate that the Prosecution failed to prove its case to the requisite standard. I find that even though she benefited from the ownership of some shares that had been paid for with stolen money, there is nothing, after all, that ultimately proves that she was ever actively involved in the running of the affairs of the particular beneficiary Companies that she part-owned, and nothing that ultimately proves that she had actual knowledge of the sources of funds used to purchase those Shares, such as to make it plain and clear to the reasonable man that she was a real participant in the scheme of fraud.” (Seven Particulars were listed on this Ground)
Ground 4
The Honorable Trial Court erred in Law when in discharging the 2nd Respondent of the Offences of Conspiracy it held that:
“…The Case of Conspiracy to Steal as made out in Count 23 of the Charge will succeed against the 1st and 3rd Respondents with respect to the Company, Ghazali Yakubu Investment Ltd, only. (Five Particulars were listed on this Ground)
Ground 5
The Learned Trial Court erred in law when it held that:
“…As for the shares purchased for the AFCO Associates Limited…. there is yet nothing that shows clearly that it came from any of the five loan accounts that form the subject matter of my Jurisdiction in this Case (Four Particulars were listed on this Ground)
Ground 6
The Honorable Lower Court erred in law when notwithstanding its holding that the 2nd Respondent benefitted from the proceeds of the Crime by way of dividend warrants, it proceeded to hold that:
“…. The fact of her part-ownership of the two Companies in question and the fact of her having derived gain from the proceeds of the Crime in issue in this case will not, without more, translate into a guilty mind.” (Five Particulars were listed on this Ground)
Ground 7
The Honorable Court erred in law when in discharging the 2nd Respondent in the Case of Stealing it held that:
“I do not see that the Prosecution ultimately succeeded in proving that she knew about the scheme of fraud that led to the use of money stolen from the bank to buy Shares for her Companies. Nor does the Evidence prove successfully that she participated in the scheme in the first place. There is no evidence that shows that she took a decision that the two companies in question should serve as vehicles through which Shares in the bank would come to be owned by her in a surreptitious manner.” (Five Particulars were listed on this Ground)
Ground 8
The Honourable lower Court erred in law when in discharging the 2nd Respondent held that:
“There is nothing that proves beyond reasonable doubt that she took decisions for the Companies, or acted for them as their directing mind or otherwise participated in the running of their affairs. (Four Particulars were listed on this Ground)
Ground 9
The Honorable lower Court erred in law when it held that:
“…The Prosecution failed to prove its case of stealing against the 2nd Defendant satisfactorily”. (Particulars of Ground 7 were repeated)
Ground 10
The Honorable lower Court erred in law when it held that:
“The case against the 2nd Defendant and which is contained in Counts 23, 25 and 27 of the charge, has not succeeded as the prosecution failed ultimately to prove its case against her… The case against her is dismissed and she is accordingly acquitted and discharged in each of the said three counts.” (Particulars of Ground 1 were repeated)
Ground 11
The Honorable Trial Court erred in law when in respect to Ghazali Yakubu Investment Limited it held that:
“I see that this Certificate was collected by the 1st Defendant even though Mr. Udeh was fully and solely in charge of the Company and even though the 2nd Defendant had no recollection at all of the existence of the Company….” (Four Particulars were listed on this ground)
The Appellant then sought for the following reliefs:
1. AN ORDER of this Honourable Court allowing this appeal.
2. AN ORDER of this Honourable Court setting aside the part of the decision of the Honourable lower Court discharging and acquitting the 1st and 3rd Respondents of the Offences contained in Count 26 of the Amended Information dated the 1st day of June, 2011.
3. AN ORDER of this Honourable Court setting aside the part of the decision of the Honourable Lower Court discharging and acquitting the 2nd Respondent of the Offences contained in the Counts 23, 25 & 27 of the Amended Information dated 1st day of June 2011.
4. An Order of this Honorable Court convicting the 1st and 3rd Respondents of the offences contained in Count 26 of the Amended Information dated the 1st Day of June 2011.
5. An Order of this Honourable Court convicting the 2nd Respondent of the Offences contained in Counts 23, 25 & 27 of the Amended Information dated the 1st day of June 2011.
At the hearing of the appeal, Learned Silk representing the Appellant, Dr. Kemi Pinheiro, SAN adopted the Appellant’s Brief of Argument dated and filed on the 18th February, 2022, which was deemed filed on the 25th January, 2022. Learned Silk Representing the 1st and 2nd Respondents, Chief Wole Olanipekun, SAN, adopted the 1st and 2nd Respondents’ Brief of Argument dated 14th March, 2022 and filed on the 15th March 2022. Learned Silk representing the 3rd Respondent, Chief Chris Uche, SAN, adopted the 3rd Respondent’s Brief of Argument dated and filed on the 18th March 2022, which was deemed on the 5th April, 2022.
It has been observed that ALL the Parties raised two separate preliminary objections and a preliminary point.
The preliminary point argued by the Appellant, challenged the competence of the mode employed by the 3rd Respondent in raising his Preliminary Objection, whilst the other two Preliminary Objections challenged the Jurisdiction of this Court to hear this appeal.
The issues across the two objections are as follows: –
The 1st and 2nd Respondents via a Notice of Intention to rely on Preliminary Objection, raised three Grounds of Objection as follows:
1. Non-Service of the Appellant’s Notice of Appeal on the 1st and 2nd Respondents.
2. This Court lacks the Jurisdiction to entertain this appeal.
3. By Order 10 Rule 1 of the Rules of this Court, this Court has the powers to strike out/dismiss this appeal, which is inherently incompetent.
The 3rd Respondent, on his own part via a Motion on Notice dated 18th March, 2022, raised four issues for determination in his Preliminary Objection as follows: –
a. Considering that the Notice of Appeal dated 9th September, 2021 was not personally served on the 3rd Respondent, has this Honourable Court not been robbed of the Jurisdiction to entertain the appeal against the 3rd Respondent?
b. Is the Appellant’s Notice of Appeal against the 3rd Respondent not an abuse of Court process considering that the complaints against the 3rd Respondent in the instant appeal could have been brought to the notice of this Honourable Court by the Appellant by way of a Cross-Appeal in the appeal filed by the 3rd Respondent in Appeal NO: CA/LAG/CR/661/2021 against the same judgment and for the reason that the Appellant is not consistent with its case before the Court.
c. Is the Appellant’s Notice of Appeal dated 9th September, 2021 not incompetent having failed to identify that part of the Decision of the trial Court complained against as required by the rules of this Honourable Court?
d. Considering the heading of the Appellant’s Notice of Appeal “IN THE COURT OF APPEAL/ABUJA” while invoking the Jurisdiction of this Honourable Court to hear the appeal, is the said Notice of Appeal not defective and incompetent?
The Appellant in response to the 3rd Respondent’s Motion on Notice dated 18th March, 2022 raised a sole issue as a Preliminary Point for Determination as follows:
1. Whether the Applicant is entitled to the grant of this instant Application? The contention here touches on this Court’s ability to consider and determine the Objections raised by the 3rd Respondent in the mode in which he sought to prosecute his objection.
To this end, this challenge by the Appellant would be treated first before delving into the issues raised for determination and argued by both the 1st to the 3rd Respondents.
Submissions on the Preliminary Point
The contention of the Appellant is that the Respondent has the right to challenge the competence of an appeal on certain grounds in the appeal. However, where the challenge is against certain grounds, the objection must be made via a Motion on Notice. Furthermore, where the intention of the Objection is to terminate an Appeal in its entirety, (as in the instant Case), the appropriate process will be to file a Notice of Preliminary Objection and argue same in the body of the Respondent’s Brief of Argument. Reliance was placed on the Case Authorities of CLEMENT ODUNUKWE VS DENNIS OFOMATA & ANOR (2010) 18 NWLR (PART 1225) 404, ADEJUMO VS OLAWAIYE (2014) 12 NWLR (PART 1421) 252, DANIEL VS INEC (2015) 9 NWLR (PART 1463) 113, ODUNUKWE VS OFOMATA (2010) 18 NWLR (PART 1225) 404, WOWEM VS STATE (2021) LPELR-53384(SC).
Dr. Pinheiro SAN relied on the Case Authority of ENEYO & ORS VS NGERE & ORS (2022) LPELR – 56880 (SC) to argue that the 3rd Respondent ought to have filed a Notice of Preliminary Objection and not, a Motion on Notice. Further reliance was placed on the Case Authority of ZARIA & ORS VS NATIONAL BOARD FOR ARABIC SND ISLAMIC STUDIES & ANOR (2019) LPELR48047(CA) to argue that an Objection to an appeal is incompetent if it is raised via a Motion on Notice as against a Notice of Preliminary Objection. He was of the view that the 3rd Respondent’s Motion on Notice aimed at dismissing this appeal is incompetent and urged this Court to strike out the Motion.
The Learned Silk representing the 3rdRespondent did not respond to the argument raised by the Appellant.
Resolution of the Preliminary Point
Now, it is settled that a Preliminary Objection at the hearing of an appeal is an opposition to its hearing, and should be promptly raised by the Respondent’s counsel before the Learned Silk to the Appellant adopts his Oral Submissions. The purpose of a Preliminary Objection is to terminate the hearing of an appeal at the threshold. Furthermore, a Court and an Appellate Court as in this instant case are duty bound to consider the merits of the Objection to determine whether the Objection is meritorious, before proceeding to determine the main appeal. It is a cardinal principle of the Administration of Justice to let the party raising the Preliminary Objection to the hearing of the appeal, know the fate of his Application regardless of the frivolity of the Objection.
A Preliminary Objection, which complies with the Provisions of Order 10 Rule 1 of the Court of Appeal Rules 2021 with particular regard to giving the other party three clear days’ notice setting the Grounds on which the Objection is raised, has satisfied the necessary foundation for consideration by the Court. See KALAGBOR VS INEC & ORS (2008) LPELR – 4387 CA.
In LAWSON VS OKORONKWO & ORS (2018) LPELR – 46356 SC, the Supreme Court Per EJEMBI – EKO JSC stated as follows: “When this Motion was heard, Mr. Joe Agi, SAN, of Silk for the Appellant, contended that it is incompetent, having not been brought as Notice of Preliminary Objection because it challenges the competence of the appeal. This to me appears to be a distinction or objection as to the form and not the substance. In KALAGBOR VS INEC & ORS (2008) LPELR – 4387 (CA) lbiyeye, JCA, relying on this Court’s definition of what a Notice of Preliminary is, states that a Motion on Notice seeking to terminate the life of a Suit is a Notice of Preliminary Objection. Persuaded by this apt definition of what Notice of Preliminary Objection is, I hereby adopt it. He says: It is instructive – to say that a Motion by which a Respondent challenges the competence of a Suit (or Appeal) and thus the Jurisdiction of the Court (otherwise called a Notice of Preliminary Objection) is a Special Procedure whereby the Respondent contests the competence of a Suit (or Appeal) and the Jurisdiction of Court, and if upheld, has the effect of terminating the life of the Suit (or Appeal) by its being struck-out. See GALADIMA VS TAMBAI (2000) 5 SCNJ (Part 1) 195 at 206. That is why it is provided in Order 2 Rule 9 (1) of the Extant Supreme Court Rules that: A Respondent intending to rely upon a Preliminary Objection to the hearing of the appeal shall give the Appellant three clear days’ notice thereof before the hearing, setting out the Grounds of Objection, and filing such notice together with ten copies thereof with the Registrar within the same time. Finding no difference between a Motion on Notice, which challenges the competence of an appeal and which also seeks to terminate the life of the appeal for the said incompetence, and a Notice of Preliminary Objection, except maybe mere semantics; I hereby dismiss outrightly the contention of the learned Senior Silk for the Appellant. The Respondents’ Motion on Notice filed on 6th September, 2018 is, in both intent and substance, a Notice of Preliminary within the context of Order 2 Rule 9 (1) of the Rules of this Court. It shall be treated as such.” See also GALADIMA VS TAMBAI (2000) SCNJ (PART 1) 196 AT 206.
In this instant Application, the Preliminary Point raised by the learned Silk to the Appellant, challenges the form rather than the substance of the appeal. The purpose of the 3rd Respondent’s Application is to terminate the appeal and the Jurisdiction of this Court. By the Provisions of Order 10 Rule 1 of the Court of Appeal Rules 2021, a Respondent intending to raise a Preliminary Objection has to give the Appellant three clear days’ notice, stating the Grounds for Objection. The 3rd Respondent’s Motion on Notice dated and filed on the 18th March, 2022 has complied with the provisions of Order 10 Rule 1 of the Court of Appeal Rules, and as such his Application is competent.
The case authority of ENEYO & ORS VS NGERE & ORS (2022) LPELR 56880 (SC) and other authorities cited by the Learned Silk to the Appellant can be distinguished from this instant Application.
In the case of ENEYO & ORS VS NGERE & ORS (2022) LPELR 56880 SC, the Respondent filed a Notice of Preliminary Objection challenging the Competency of a Ground of Appeal, not the Entire Appeal. Also the case of WOWEM VS STATE (2021) LPELR – 53384 (SC), the Respondent also filed a Notice of Preliminary Objection challenging the competency of some of the grounds of the Notice of Appeal, not the entire appeal, and the reason for the decision in both cases was because the purpose of a Notice of Preliminary Objection is to challenge the competence of an appeal, not the competence of some Grounds of Appeal as it was in those cases. However, in this instant case, the purpose of this Application is to challenge the Competence of this appeal and as such the case authorities cited by the Learned Silk to the Appellant are inapplicable to this instant case.
FINDING ON PRELIMINARY POINT: Consequently, the Appellant’s Preliminary point is hereby discountenanced and struck out.
Now having resolved the Preliminary Point raised by the Appellant in respect of the 3rd Respondent’s Preliminary Objection, this Court will now proceed to resolve the Preliminary Objections raised by the Respondents to determine if there is merit in them before proceeding to determine the merits of this appeal.
Submission of parties on the issue of Non-Service
In arguing his Preliminary Objection, the Learned Silk to the 1st and 2nd Respondent submitted that a Notice of Appeal is an Originating Process with respect to the initiation of an appeal in any Appellate Court in Nigeria.
He further argued that the Notice of Appeal must be personally served on the 1st and 2nd Respondent before this Court can be clothed with the Jurisdiction to entertain the Appeal. Failure to serve the Respondents with the Notice of Appeal has therefore robbed this Court of Jurisdiction and as such the Respondent is entitled to have the proceedings set aside. Reliance was placed on the case law authorities of OBIMONURE VS ERINOSHO (1966) 1 ALL NLR 215 AT 252, ADEGBOLA VS OSIYI (2018) 4 NWLR (PART 1608) 1, ODEY VS ALAGA (2021) 13 NWLR (PART 1972) PAGES 40-41 PARAS A-H, PAGES 41-41 PARAGRAPHS G-A. Further reliance was placed on: Order 25 Rule 5(1) of the Court of Appeal Rules, 2021; Order 2 Rule (3) and (4) of the Supreme Court Rules.
Contrariwise, Learned Silk Representing the Appellant, in response to Learned Silk representing the 1st and 2nd Respondent, contended that the Appellant has two Affidavits of Service deposed to by one Daniel Oluwasefunmi, a Bailiff of the High Court of Lagos State on the 1st and 3rd Respondents. A second Affidavit for the 2nd Respondent confirmed that the Respondents have been served with the Notice of Appeal. He further contended that the appropriate way to challenge or rebut the Presumption of Service is by filing a Counter-Affidavit to controvert the Affidavit of Service, and where such Counter Affidavit is not filed, the Court will not treat the issue of non-service seriously.
Arguing further, Learned Silk submitted that the Personal Service of a Notice of Appeal is alien to criminal appeals. He placed reliance on Order 2 Rule 1 of the Court of Appeal Rules 2021. Further reliance was placed on Order 1 of the Court of Appeal Rules 2021, to argue that a Legal Practitioner representing the Respondents are entitled to be served with the Notice of Appeal in Criminal Appeals and he relied on FRN VS NWOSU (2016) 17 NWLR PART 1541 PAGE 226 and urged this Court to dismiss the Objection of the Respondents.
In the same vein, Learned Silk representing the 3rd Respondent also contended that a Notice of Appeal is an originating process, which initiates an appeal in an Appellate Court. He further submitted that service of an Originating Process is very crucial to the Jurisdiction of the Court and as such, it is a fundamental step that cannot be waived by the Parties as Service of the Originating Processes on the Parties confers Jurisdiction on the Court. He added that the Notice of Appeal must be personally served on the Respondent and contended that the 3rd Respondent was not personally served with the Notice of Appeal. He was of the view that failure of the Appellant to effect personal service of the Notice of Appeal has robbed this Court of Jurisdiction and as such this Court does not have the Jurisdiction to entertain the appeal. Reliance was placed on IWUNZE VS FRN (2014) LPELR – 22254 (SC), NCS BOARD & ORS VS OGUNSINA (2022) LPELR – 56415 (CA), ADEGBOLA VS OSIYI (2018) 1 ALL NLR 215 AT 252; Order 2 Rule 1 of the Court of Appeal Rules 2021.
In response to the submissions of the Learned Silk to the 3rd Respondent, the Learned Silk to the Appellant contended that there was an Affidavit of Service by the Bailiff of the High Court of Lagos State confirming the Service of the Notice of Appeal on the 2nd Respondent. He added that the appropriate way of challenging the Presumption of Service by the Party concerned, is by filing an Affidavit or Counter-Affidavit as the case may be to controvert the Affidavit of Service and where such Affidavit is not filed, the Court will not treat the Issue of Non-Service seriously. Reliance was placed on FATOKUN VS SOMADE (2013) 1 NWLR PART 802 PAGE 431.
He further contended that Personal Service of a Notice of Appeal is alien to Criminal Appeals. He interpreted the Provisions of Order 2 Rule 1(a) of the Court of Appeal Rules 2021 and Order 1 of the Court of Appeal Rules 2021 to argue that Service of a Notice of Appeal can be effected on the Legal Practitioner representing the Respondent. He added that Personal Service takes its roots from Civil Proceedings and has no place in Criminal Proceedings and as such Service of Notice of Appeal on the Legal Practitioner representing the 3rd Respondent is sufficient service as a Legal Practitioner is deemed to be a Respondent in a Criminal Appeal. Reliance was placed on FRN VS NWOSU (2016) 17 NWLR PART 1541 PAGE 226.
RESOLUTION OF ISSUES ON NON-SERVICE
Now, the 1st, 2nd and 3rd Respondents have contended that the failure to effect Personal Service of the Notices of Appeal on them has rendered the Appeal incompetent and as such this Court is bereft of Jurisdiction to entertain this appeal. It is settled that the Service of Court Process is intimately tied to the Court’s Jurisdiction. It is the fulfillment of this condition that clothes the Court with the Jurisdiction to hear a suit. The purpose of Service is to notify the Respondent of the pending appeal so that he can be able to defend the Judgment of the trial Court. Failure to serve a Party is a fundamental defect that robs the Appellate Court of Jurisdiction. The party not served is entitled Ex Debito Justitiae to have the proceedings of that Court and any Judgment emanating therefrom, set aside. Lack of Service where required, deprives the Court of the competence and jurisdiction to hear the Suit.
See ODEY VS ALAGA (2021) 13 NWLR (PART 1782) PAGE 1, AKINLOYE VS ADELAKUN (2000) 5 NWLR (PART 657) PAGE 182, MADUKOLU VS NKEMDILIM (1962) 2 SCNLR, NWABUEZE VS OKOYE (1988) 4 NWLR (PART 911) PAGE 664, HABIB NIG BANK VS OPOMULERO (2000) 15 NWLR PART 690 PAGE 315, ALHAJI ODUTOLA VS INSPECTOR KAYODE (1994) 2 SCNJ 21.
Order 2 Rule 1A of the Court of Appeal Rules 2021 provides as follows:
“(a) Every Notice of Appeal shall, subject to the Provisions of Order 2 Rules 8, be served on the Respondent personally or by electronic mail to the electronic mail address of the Respondent; Provided that if the Court is satisfied that the Notice of Appeal has in fact been communicated to the Respondent, no objection to the hearing of the appeal shall lie on the Ground that the Notice of Appeal was not served in accordance with this Rule.”
In interpreting the above provisions, it is important to note that Order 1 of the Court of Appeal Rules 2021 defines a Respondent as follows:
“In a Civil Appeal means, any Party (other than the Appellant or Applicant) directly affected by the Appeal or Application; and in a Criminal Appeal, means the person who undertakes the defence of the Judgment Appealed against, and includes a Legal Practitioner representing such a person in the proceedings before the Court.”
The burden of proving service rests on the party that asserts that there was service.
To establish service on a party to a suit, there must be actual proof of service on the Necessary Parties. For example, the Evidence of Receipt vides the Signature of the Person personally or through his Counsel or an Affidavit of Service deposed to by the person who effected the service.
Once the party is in receipt of the Originating Process, he is expected to proceed to arrange a Defence.
An Affidavit of Service must contain details on the following: When it was served, who collected, what manner of processes and where they were served.
In this instant case, the 1st and 2nd Respondent in their Grounds of Objection alleged that they were not personally served. The 3rd Respondent on the other hand, relied on a 7-Paragraph Affidavit deposed to by one David Anari, a Litigation Officer in the Law Firm of Kevin Martin Ogwemoh Legal to establish the allegation of Non-Service. The deposition specifically relied on by the 3rd Respondent was Paragraph 5 (I – III) of his Affidavit in support. Paragraph 5 is reproduced as follows:
5. I was further informed by Felix Ayem, Esq., at the same place, date and time as stated in the above Paragraph 3 and I believe it to be true that:
i. The Appellant’s Notice of Appeal dated 9th September 2021 was not served on the 3rd Respondent as required by law.
ii. The law required that a Notice of Appeal must be personally served on a Respondent so as to properly invoke the Jurisdiction of this Honourable Court on the said Respondent.
iii. Having failed to effect service of the Notice of Appeal on the 3rd Respondent, this Honourable Court lacks the requisite Jurisdiction to entertain and determine the instant appeal in respect to the 3rd Respondent.
Conversely, the Appellant in response to the 3rd Respondent’s Affidavit in support of Motion on Notice made some depositions to establish that the 3rd Respondent was served. It also attached an Affidavit of Service to that effect. Some of the depositions are contained in Paragraphs 4, 5, 6 and 7 of the Counter-Affidavit. The depositions are reproduced as follows:
4. That the 3rd Respondent refused to acknowledge the said Notice of Appeal but same was acknowledged by the officer in charge of Administration at the Correctional Centre, one ASC Elebila, who was on duty on the 17th day of September, 2021. Now shown to me and marked Exhibit A is an acknowledged copy of the said Notice of Appeal.
5. That following the service of the 3rd Respondent’s Motion on Notice dated 18th day of March, 2022, on the 28th day of March, 2022, I again attempted to serve the Notice of Appeal dated 9th September, 2021 on the 3rd Respondent in this appeal at Kirikiri Maximum Correctional Centre
6. That the 3rd Respondent refused to acknowledge the said Notice of Appeal but same was acknowledged by the Officer in Charge of Records, one DSC Ige J. A, who was on duty on the said 28th Day of March, 2021. Now shown to me and marked as Exhibit B is an acknowledged copy of the said Notice of Appeal.
7. That I know as a fact that the 3rd Respondent is very much aware of the pendency of this instant Appeal.
The Appellant’s quoted Paragraphs are Specific Depositions contradicting the claims of the 3rd Respondent that he was not personally served. Furthermore, the Appellant also attached two Affidavits evidencing services on the Respondents but the Respondents did not further rebut these Affidavits. Salami JCA in AGBAJE VS FASHOLA (2008) 6 NWLR PART 1082, 90 AT 142 upheld the various ways of proving service, which was approved and cited by the Supreme Court in CHEMIRON INTERNATIONAL LIMITED VS STABILINI VISIONI LIMITED (2018) 74 NSCQR AT 1992, SC to be “Where it is alleged that a document was delivered to a person who denies receiving such document, proof of delivery to such person can be established by: A) A Dispatch Book indicating Receipt; or B) Evidence of Dispatch by Registered Post; or C) Evidence of Witness, credible enough that the Person was served with the document.” In this instant case, Exhibits A and B were proofs of receipt by the officers of the Correctional Facility who received the process, when the 3rd Respondent refused to collect it.
The law is settled that where there is Proof of Service on the party by means of an Affidavit of Service deposed to by the Bailiff of a Court or by an Officer of the Court, the only recommended and acceptable way of rebutting this presumption is by filing a Counter-Affidavit to controvert the Affidavit of Service. The failure of the party to file a Counter-Affidavit is fatal, as it will be presumed that he was served with the Originating Process.
In this instant case, there ought to have been filed a further affidavit specifically confronting the exhibits that evidenced the fact that all attempts to serve the Respondents were rebuffed and also that service was not effected on the officer in charge of the correctional facility where he was detained.
Section 168 (1) of the Evidence Act 2011 provides as follows:
“When any Judicial or Official Act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with.”
In EMEKA VS OKOROAFOR (2017) 11 NWLR (PART 1577) PAGE 410, the Supreme Court held as follows:
“An Affidavit of Service deposed to by the Bailiff of a Court stating the fact, place, mode and date of service and describing the process or documents served shall be prima facie proof of the matter stated in the affidavit. The presumption of regularity in this regard is rebuttable. A Defendant who intends to challenge the affidavit of service deposed to by the Bailiff must file an Affidavit denying service and detailing specific facts, which show that he could not have been served on the date, or at the time, or at the place or in the manner deposed to. It would then be for the Court to determine whether or not the party complaining was indeed served accordingly.” See also IBWA VS SASEGBON (2007) 16 NWLR (PART 1059) PAGE 195, FATOKUN VS SOMADE (2003) 1 NWLR (PART 802), NWACHUKWU VS STATE (2002) LPELR – 2084 SC, AKEEM VS STATE (2017) LPELR – 42465 SC, TORRI VS NATIONAL PARK SERVICE OF NIGERIA (2011) LPELR – 8142 SC, CHIEF LEO DEGREAT MGBENWELU VS AUGUSTINE N. OLUMBA (2016) SC, ELC 2313 AT PAGE 1 AND EUNICE ONWUBUYA & 3 ORS VS EMMANUEL O. IKEGBUNAM (2019) SC, 78 NSCQR AT 493.”
In this instant appeal, there were Counter-Affidavits filed by the Respondents denying that they were served with the Notice of Appeal personally. Since they failed to challenge the Exhibits A and B, tendered in rebuttal by Learned Silk for the Appellants, they cannot turn around and claim that they were not personally served.
Consequently, the argument of the Respondents that they were not personally served with the Notice of Appeal and therefore this Court has been robbed of Jurisdiction is discountenanced.
This issue of Non-Service is resolved in favour of the Appellant and against the Respondents.
Now, having resolved the common issue of service between all the Respondents, this Court shall now proceed to determining the other specific issues raised solely by the 3rd Respondent on its merits.
Submission of Silks on the 3rd Respondent’s Motion
The 3rd Respondent via a Motion on Notice dated and filed 18th March, 2022 claimed for the following reliefs, which amounts to the 2nd Preliminary Objection:
1. AN ORDER striking out or dismissing the Appellant’s appeal for constituting a gross abuse of Court process for want of jurisdiction of the Court of Appeal to determine the appeal.
2. AND FOR such or other orders as this Honourable Court may deem fit to make in the circumstances of this case.
The Grounds of the Objections are as follows:
1. The Notice of Appeal dated 9th September, 2021 was not properly served on the 3rd Respondent, which has robbed the Honourable Court of the Jurisdiction to entertain the appeal against the 3rd Respondent.
2. The Appellant’s Notice of Appeal against the 3rd Respondent constitute Gross Abuse of Court Process in that the complaint against the 3rd Respondent could have been brought to the Notice of this Honourable Court by the Appellant by way of Cross-appeal or a Respondent’s notice in the appeal filed by the same judgment. The Appellant is not consistent with its Case before the Honourable Court.
3. The Appellant’s Notice of Appeal dated 9th September, 2021 has failed to identify that part of the Decision complained against as mandatorily required by the Rules of this Honourable Court.
4. Heading the Appellant’s Notice of Appeal “IN THE COURT OF APPEAL ABUJA, while invoking the Jurisdiction of this Honourable Court to hear the Appeal has rendered the said Notice of Appeal defective and incompetent.
The Application is supported by a 7 Paragraph Affidavit deposed to by one David Anari, a Litigation officer in the Law Firm of Kelvin Martin Ogwemoh Legal and a Written Address.
In opposition to the 3rd Respondent’s Motion on Notice, the Appellant filed a Nine-Paragraph Affidavit deposed by one Daniel Oluwaseyifunmi, a Bailiff in the High Court of Lagos and a Written Address. The Learned Silk to the 3rd Respondent in arguing his Preliminary Objection raised four issues for determination, which had been stated above.
Learned Silk to the 3rd Respondent submitted that the Appellant’s Notice of Appeal constitutes an Abuse of Court process. He added that a party cannot approbate and reprobate on the same Case as the Silk to the Appellant praised the Judgment of the trial Court but still went ahead to condemn the judgment of the trial Court in another breath. He was of the view that the Appellant ought to have filed a Cross-Appeal against the Judgment of the Trial Court as the 3rd Respondent had initiated an appeal against the Judgment of the trial Court. He added that filing a separate appeal when the 3rd Respondent had already filed an Appeal to which the Appellant was a party, would amount to a Multiplicity of Appeals before this Court and as such constitutes an abuse of judicial process. Reliance was placed on CUSTOMARY COURT OF APPEAL BENUE STATE VS TSEGBA & ORS (2017) LPELR – 44027, OKWUDIMONYE VS FRN (2021) LPELR – 54873 CA, ASABORO & ANOR VS PAN OCEAN OIL CORPORATION (NIG) LTD & ANOR (2017) LPELR – 41558 (SC), ELIOCHIN (NIG) LTD VS MBADIWE (1986) 1 NWLR (PART 15) PAGE 47, EJURA VS IDRIS & ORS (2006) LPELR – 5827 CA.
He further contended that the Notice of Appeal was grossly incompetent and fundamentally defective and as such this Court lacks the jurisdiction to entertain the appeal and hear the appeal. The contention of learned Silk is that the Appellant failed to comply with the rules of this Court, which provides that a Notice of Appeal must identify that part of the decision appealed against. Reliance was placed on ORDER 17, RULE 3 (1) of the Court of Appeal Rules 2021, EMOKPAE VS STANBIC IBTC PENSION MANAGERS LTD (2021) LPELR – 53383 (SC), GIDEON & ORS VS STATE (2016) LPELR – 40322 (CA), MV PEACE & ORS VS FRN (2019) LPELR – 47870 (CA), CHINDA VS INEC & ORS (2019) LPELR – 47902 (CA); AJI VS DANLELE & ORS (2015) LPELR – 40362 (CA).
Learned Silk also argued that the Appellant’s Notice of Appeal was also incompetent as the Notice of Appeal filed by the Appellant to commence this appeal, was intended to be filed at a different Court of Appeal division. He relied on DIAMOND BANK PLC. VS ALOYSIUS (2021) LPELR – 55672 (CA) and urged this Court to strike out the Notice of Appeal with substantial costs.
Contrariwise, in opposition, this Application, Learned Silk representing the Appellant submitted that an Abuse of Court Process on the basis of multiplicity of proceedings could only be proven and established by factual and documentary evidence and knowledge of the party. Reliance was placed on IBWA VS SASEGBON (2007) LPELR-8246 (CA).
It is the contention of the learned Silk that this Court cannot speculate on the existence or otherwise of 3rd Respondent appeal against the Decision of the High Court of Lagos State on the 16th day of June, 2021, and that the Appellant was very much aware of its existence at the time they filed its Notice of Appeal dated the 9th day of September, 2021.
He added that Criminal Appeals are Sui Generis i.e. they are in a Special Class of their own. In the 3rd Respondent’s appeal, the Appellant is the 1st Respondent while the 1st Respondent is the 2nd Respondent. The 2nd Respondent in the instant appeal is not a party to the 3rd Respondent’s appeal. What this simply means is that the parties in both appeals are different and as such it would have been practically impossible for the Appellant to invite the 2nd Respondent into the 3rd Respondent’s appeal. Putting it in other words, it would have been impossible for the Appellant to initiate its appeal against all three (3) Respondents in the appeal initiated by the 3rd Respondent. Clearly, the same party test, which is a critical element of abuse of Court process, is absent in the instant case. Reliance was placed on TOMTE NIG LTD VS FHA (2009) 18 NWLR PART 1173 PAGE 358.
He added that the Appellant’s Right to Appeal to this Court against the decision of 16th June, 2021 is derived from Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). If the Constitution has given the Appellant such right to appeal, he was of the view that no Statute, Law or Rules of Court can deprive the Appellant of such right. What this simply means is that the practice and or procedure to file a Notice of Cross-Appeal cannot deny the Appellant its Constitutional right to appeal. The Appellant cannot be compelled to raise its complaints against the decision of the High Court of Lagos State on the 16th day of June, 2021 in the 3rd Respondent’s appeal.
Further, it was argued that the Appellant may only be required to file a Notice of Cross-Appeal in the 3rd Respondent’s appeal, if there was a pronouncement in relation to the 3rd Respondent’s complaints in the 3rd Respondent’s appeal, which if left to remain or stand, would be of a disadvantage to the Appellant in relation to the 3rd Respondent’s appeal. Reliance was placed on the case authority of EJURA VS IDRIS & ORS (2006) LPELR – 5827 (CA). In the instant case, the complaint of the Appellant does not fall within the complaint of the 3rd Respondent in the 3rd Respondent’s appeal, in a manner as to mandate the Appellant to file a Cross-Appeal.
In response to the argument of the 3rd Respondent that the Appellant ought to have initiated a Respondent’s Notice in the 3rd Respondent’s appeal against the decision of the trial Court, learned Silk contended that a Respondent’s notice will only be necessary where the Respondent agrees with the judgment appealed against but at the same time wants the judgment to be varied or affirmed on other grounds.
He further reacted to the argument of the 3rd Respondent that this Court ought to have struck out the Notice of Appeal on the grounds that the Notice of Appeal did not identify the part of the judgment appealed against. Learned Silk relied on Order 17 of the Court of Appeal Rules 2021 to argue that there is no requirement for the Appellant in a Criminal appeal to identify or state whether it was the whole or part of the decision of the lower Court it is complaining of. In line with Order 17 Rule 3(i) of the Rules of Court, the Appellant as Prosecutor utilized Form 5, as attached to the Second Schedule to the Rules. Nowhere in the said Form 5, was the Appellant required to identify the part of the judgment appealed against, which is at variance with Order 7 Rule 2 of the Court of Appeal Rules 2021, that requires the Appellant in his Notice of Appeal, to set out the grounds of appeal, stating whether it was the whole or part of the decision of the lower Court that is complained about. He argued that the case authorities of EMOKPAE VS STANBIC IBTC PENSION MANAGERS LTD (2021) LPELR-53383 (SC) AND CHINDA VS INEC & ORS (2019) LPELR-47902 (CA) do not apply to this case and as such do not constitute a binding precedent. Further reliance was placed on BABATUNDE VS PAS & T.A LTD (2007) 13 NWLR PART 1050 PAGE 113. He urged this Court to jettison the 3rd Respondent’s argument and contention in respect of the Appellant’s failure to identify the part of the judgment appealed.
In reaction to the 3rd Respondent’s argument that the Notice of Appeal was incompetent on the grounds that it was headed “Court of Appeal, Abuja,” learned Silk asked rhetorically as to whether this Court will ask if the Notice of Appeal was filed in the proper Court. He contended that the Notice of Appeal was filed at the Registry of the lower Court and that a wrongly headed Notice of Appeal is competent. He placed reliance on UZOEGWU & ORS VS MADUKA & ORS (2015) LPELR – 40685 CA, CHINDA VS INEC (2019) LPELR – 47905 (CA), ODOM & ORS VS PDP (2015) 6 NWLR PART 1456 PAGE 527.
RESOLUTION OF THE 3RD RESPONDENT’S REMAINING ISSUES ON PRELIMINARY OBJECTION
On the issue as to the competence of the Notice of Appeal, the 3rd Respondent had contended that the Notice of Appeal is incompetent, as it does not identify the decision appealed against.
Now, Order 17 Rule 3 (1) and (2) of the Court of Appeal Rules 2021 provides as follows:
“(1) A person desiring to appeal to the Court against any judgment. Sentence or order of the lower Court, whether in the exercise of its Original or of its Appellate Jurisdiction, shall commence his Appeal by sending to the Registrar of the Lower Court, a Notice of Appeal or Notice of Application for Leave to Appeal or Notice of Application for Extension of Time within which such Notice shall be given, as the case may be, in the form of such Notice respectively set forth as Forms 1, 2, 3, 4, 5 or 7 in the Second Schedule to these Rules.
(2) A person sending any Notice or Notices under this Rule shall answer the questions and comply with the requirements set forth in Sub-rule 1 above.”
By the provisions of Order 17, an Appellant is required to file his Notice of Appeal or Leave to Appeal or an Application for an Extension of time within which to Appeal. There is nowhere in this above-stated provision where the Appellant is required to identify the part of the Decision Appealed against. However, Order 7 Rule 2 (1) of the Court of Appeal Rules 2021 provides as follows:
“All appeals shall be by way of rehearing and shall be brought by Notice (hereinafter called “the Notice of Appeal”) to be filed physically or electronically in the Registry of the lower Court, which shall set forth the Grounds of Appeal, stating whether the whole or part only of the Decision of the lower Court is complained of (in the latter case specifying such part) and shall state also the exact nature of the relief sought and the names and addresses of all Parties directly affected by the appeal, which shall be accompanied by a sufficient number of copies for on such Parties.”
The interpretation of Order 7 Rule 2 of the Court of Appeal Rules 2021, is that all Civil Appeals must state whether the whole or part only of the Decision of the lower Court is being complained of.
It is pertinent to note the Principle of Law, which states that the express mention of specific things is the exclusion of other things. That is Expressio unius est exclusio alterius – the expression of one thing is to the exclusion of another thing. Thus things not mentioned in a statute is a clear intention that they are not intended to be included. See PDP & ANOR VS INEC & ORS (1999) LPELR-24856(SC), SHINKAFI & ANOR VS YARI & ORS (2016) LPELR-26050 (SC), PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS VS MIGFO (NIG) LTD & ANOR (2012) LPELR-9725 (SC) AND BUHARI & ANOR VS YUSUF & ANOR (2003) LPELR-812(SC).
From the interpretation of Order 17 Rule 3, it is clear that it was not the intention of the draftsmen of the Court of Appeal Rules to mandate the Appellant in a Criminal Appeal to state whether it is appealing the whole or part of the decision of the lower Court it was complaining of. Furthermore, Order 17 Rule 3 of the Court of Appeal Rules 2021 also prescribed the form for filing the Notice of Appeal. It is worthy of note to state that Form 5 of the Notice of Appeal as prescribed in Order 17 Rule 3 is different from the Form 5 of the Notice of Appeal as prescribed in Order 7 Rule 2. The forms can be seen in the Second Schedule to the Rules.
Now, in this instant case, a review of the Notice of Appeal drafted by the Appellant shows that the Notice of Appeal was drafted in compliance with Form 5 pursuant to Order 17 Rule 3 of the Court of Appeal Rules. The argument of the learned Silk representing the 3rd Respondent that the Appellant did not comply with the unambiguous rules of this Court is misconceived. Order 7 Rule 2 being relied on by the 3rd Respondent, is inapplicable to this instant case, as this appeal is a Criminal Appeal and the Procedure for filing a Criminal Appeal is different from that of a Civil Appeal.
The overriding guide in Criminal Appeals is that by the Rules, under Order 17 Rule 5, a proviso is stated that the Court may in the interest of justice and for good and sufficient cause shown, entertain an appeal, if satisfied that the intending Appellant has exhibited a clear intention to appeal to the Court against the decision of the lower Court.
Therefore, this contention is resolved in favour of the Appellant and against the 3rd Respondent.
Finally, the learned Silk representing the 3rd Respondent had contended that this Extant Notice of Appeal is incompetent because it was wrongfully headed.
Now, the question is whether in law, a wrongly headed Notice of Appeal is incompetent.
Order 1 Rule 4 of the Court of Appeal Rules 2021 provides as follows:
“The Forms set out in the First and Second Schedules to these rules, or Forms as near thereto as circumstances permit, shall be used in all cases to which such forms are applicable.”
The form relevant to this appeal is Form 5 in the 2nd Schedule of the Court of Appeal Rules. It is headed as follows:
CRIMINAL FORM 5
IN THE COURT OF APPEAL
NOTICE OF APPEAL
The Notice of Appeal in this instant case was wrongfully headed “IN THE COURT OF APPEAL HOLDEN AT ABUJA” as against “IN THE COURT OF APPEAL HOLDEN AT LAGOS”. It is however clear that from the body of the Notice of Appeal, particularly, the First Paragraph, that the Appellant intended to appeal to this Court. The defect as to the heading of the Notice of Appeal is not a fundamental vice that will vitiate the appeal. Thus it is not fatal to the Notice of Appeal. It will therefore be wrong to strike out the Notice of Appeal as canvassed by the learned Silk to the 3rd Respondent simply because the Notice of Appeal was wrongly headed and addressed to the wrong Court. See OWUNALI VS STATE (1982) 9 SC 48, CLEV JOSH LTD VS TOKIMI (2008) 13 NWLR (PART 1104), SURAKATU VS NIGERIAN HOUSING DEVELOPMENT SOCIETY (1981) 4 SC 26. In AKPAN EKPEWIB VS THE STATE (1982) SC NSCQR AT PAGE 385; 6 SC AT 1, it was stated that the appeal should be heard on its merits, despite been improperly headed. The issue is that the Parties were not in any way prejudiced by this wrong heading and were not mistaken as to the proper venue for the action, this Court would consider the error not to be fatal to the hearing on the merits of the appeal.
FINDING:- Furthermore, Order 7 Rule 2 of the Court of Appeal Rules provides that a Notice of Appeal must be filed in the Registry of the lower Court, hence the submissions of the learned Silk to the 3rd Respondent is of no consequence and is hereby discountenanced.
Now, abuse of Court Process is the improper use of the Legal Process. There is said to be an abuse of Court process when a party improperly uses the Judicial Process to the irritation and annoyance of his opponent and the efficient and effectual Administration of Justice. See R-BENKAY NIGERIA LTD VS CADBURY NIGERIA LTD (2012) LPELR-7820(SC), NWOSU VS PDP & ORS (2018) LPELR-44386(SC), DINGYADI & ANOR VS INEC & ORS (2010) LPELR-40142(SC), TOMTEC NIGERIA LTD VS FHA (2009) LPELR-3256(SC), ALHAJI AMEEN SULEIMAN MOHAMMED & 1 OR VS ALHAJI ABUBAKAR MOHAMMED GWARZO (2021) ELC AT 3565; SC. His Lordship Per ONNOGHEN JSC in TOMTEC NIGERIA LTD VS FHA (2009) LPELR-3256(SC) stated the essential elements of an abuse of Court process as follows:
”…The circumstances in which an Abuse of Judicial Process can be said to exist have been stated in a number of decisions of this Court including Saraki VS Kotoye (1992) 9 NWLR (PART 264) 156 at 188-189 to include the following: – “(a) Instituting a Multiplicity of Actions on the same Subject Matter against the same opponent on the same issues, or a multiplicity of action on the same matter between the same parties even where there exists a right to begin the Action. (b) ‘Instituting’ different Actions between the same parties simultaneously in different Courts even though on different Grounds. (c) Where two similar Processes are used in respect of the exercise of the same right, for example a Cross-Appeal and a Respondent Notice. (d) ‘Where an Application for Adjournment is sought by a party to an action to bring an Application to Court for leave to raise Issues of fact, already decided by Courts below. (e) Where there is no iota of law supporting a Court process or where it is premised on frivolity or recklessness.” Applying the elements to this instant appeal, in order to satisfy the element of an Abuse of Court process, the following needs to be proved:
1. There must be Multiplicity of Actions
2. The Subject Matter and the issues must be the same
3. The parties must be the same
In this instant case, the 3rd Respondent had filed a Notice of Appeal in Appeal No: CA/L/661/2021 challenging the decision of the trial Court. The 3rd Respondent is the Appellant in that appeal while the Appellant in this instant appeal is the Respondent. The Subject Matter that gave rise to the appeal was the conviction of the 3rd Respondent for Conspiracy and Stealing. The Appellant in this instant case is appealing the acquittal of the 3rd Respondent as well as the 1st and 2nd Respondent.
A Cross-Appeal arises where two parties to a judgment are dissatisfied with it and each accordingly appeals. The appeal of each is called a Cross-Appeal in relation to that of each other. Each appeal is an independent and separate complaint by the parties even though both appeals are heard together. If an Appellant withdraws or discontinues with his appeal, a Respondent/Cross-Appellant may proceed with his Cross-Appeal just like a Counter-Claimant in a Suit may prove his Counter-Claim where the Plaintiff discontinues his own Action. See IGWE VS KALU (2002) 14 NWLR (PART 787) 435 SC; BCE CONSULTING ENG VS NNPC (2004) 3 NWLR (PART 859) 1 CA; SBN VS MPIE LTD (2004) 6 NWLR (PART 868) CA.
An abuse of Court process will only arise where a person who files a Cross-Appeal, also files a Respondent’s Notice. Thus where two notices exist, the offending process is to be struck out.
Now, it is clear that the right of appeal against a final judgment of a Court that a party has in a criminal action, is Constitutional, and is laid down under Section 241 of the 1999 Constitution (As Amended). This right cannot be derogated from, discarded or discountenanced by any Statute, Law or Rules of Court some technicalities. Even a Cross-Appeal is an appeal and a person may decide to file his appeal separately. It is his choice. In fact, there is no appeal filed that constitutes a multiplicity of actions in relation to the Appellants’ grouse, as the complaints of the Appellant are not re-litigated or even discussed in the appeal filed by the 3rd Respondent.
The issues are also not the same as this appeal deals with the question of acquittals, whilst the appeal filed by the 3rd and in fact also the 1st Respondent, deals with the question of wrongful conviction.
Furthermore, the 1st Respondent as well as the 2nd Respondent are not Parties to the Appeal referred to and it would be impossible for the Appellant to file a Cross-Appeal in the 3rd Respondent’s appeal against all three Respondents in an appeal not filed by him. The issues, parties and complaints in the appeals are different and therefore, without further ado, this Court finds that there was no Abuse of Court Process occasioned by this appeal.
The Appellant could also not have initiated a Respondent’s Notice because he did not agree with the portions of the judgment of the lower Court regarding his active complaints in this appeal.
Therefore, the 3rd Respondent’s Notice of Appeal on the 7th of September, 2021 and the Notice of Appeal in this present appeal is dated the 9th day of September, 2021 do not constitute an abuse of Court process.
Thus, in conclusion, this Preliminary Objection challenging this instant appeal against the 3rd Respondent is hereby overruled and dismissed.
MAIN APPEAL:
The issues for determination by learned Silk representing the Appellant’s brief are as follows:
(1) Whether the Honourable Trial Court was right to discharge and acquit the 2nd Respondent of Count 23 of the Amended Information dated the 1st day of June, 2011 notwithstanding her Part Ownership of Ghazali Yakubu Investment Limited and Afco Associates Limited. — Grounds 1, 3, 4, 6, 7 & 10.
(2) Whether the Honourable Trial Court was right in discharging the 2nd Respondent of Count 25 of the Amended Information dated 1st June 2011. —Grounds 2, 8, 9 & 11
(3) Whether the Honourable lower Court was right when in discharging the Respondents of Counts 26 & 27 of the Amended Information dated 1st June, 2011 it held that the Appellant was unable to prove that the Monies for the purchase of the Shares in favour of AFCO Associates, was derived from any of the Loans subject of Counts 1-10 – Ground 5
On their own part, Learned Silk representing the 1st and 2nd Respondents formulated two issues for determination, of which the 2nd issue has already been discountenanced leaving only a sole issue for determination, which is as follows:
1. Considering the contents of Counts 23, 25 and 27 of the Amended Information and the evidence adduced at the lower Court, whether the said Court was not right when it discharged and acquitted the 2nd Respondent of the Offences in the said Counts 23, 25 and 27 of the Amended Information dated 1st June, 2011. Grounds 1,2,3,4,6,7,8,9 and 10.
2. Did the lower Court not rightly discharge the 1st Respondent of the Offence in Count 26 of the Amended Information dated 1st June 2011. Grounds 5 and 11.
On their own part, learned Silk representing the 3rd Respondent raised two Issues for Determination, namely: –
1. Whether the trial Court was right to have discharged and acquitted the 3rd Respondent in Count 26 of the Charge. Distilled from Ground 5 of the Notice of Appeal and
2. Whether the trial Court was right in failing to discharge the 3rd Respondent for the Offence of Conspiracy in Count 23, with respect to GhazaliYakubu Investment Limited, a Company, which has no Nexus with the 3rd Respondent. Distilled from Ground 4 of the Notice of Appeal.
Before proceeding into the arguments and submissions of the Silks in this appeal, this Court will examine the propriety of the 3rd Respondent’s 2nd Issue for Determination, which is stated above. The 3rd Respondent, instead of playing his role as a Respondent in observance with the Rules of Appellate Practice, turned itself into an Appellant, who has neither filed a Notice of Appeal or a Cross-Appeal. The traditional role of a Respondent is to defend a judgment being appealed against and not to challenge it. See OBI VS INEC & ORS (2007) LPELR – 24347 (SC), IMONIYAME HOLDINGS LTD & ANOR VS SONEB ENTERPRISES LIMITED (2010) LPELR – 1504 (SC), AGI VS PDP (2016) LPELR – 42568 (SC). The learned Silk to the 3rd Respondent in his second issue for determination criticized the trial Court for failing to discharge him for the offence of Conspiracy in Count 23 with respect to Ghazali Yakubu Investment Limited, a Company which had no nexus with the 3rd Respondent.
It is settled law that a person who wishes to set aside the decision of the lower Court must come by way of Notice of Appeal or Cross-Appeal. Consequently, issue 2 raised by the 3rd Respondent will be discountenanced in the determination of the instant Appeal. Consequently, Issue 2 of the 3rd Respondent’s Brief of Argument is hereby struck out.
ISSUES FOR DETERMINATION
After carefully perusing the Issues for Determination set out by learned Silks across the divide, this Court will adopt the issue canvassed by learned Silk representing the 1st & 2nd Respondent, as encompassing all issues across board, and this is as follows: –
1. Did the lower Court not rightly discharge the Respondents of the Offence in Count 26 of the Amended Information dated 1st June, 2011 (Grounds 5 and 11).
2. Considering the contents of Counts 23, 25 and 27 of the Amended Information and the Evidence adduced at the Lower Court, whether the said Court was not right when it discharged and acquitted the 2ndRespondent of the Offences in the said Counts 23, 25 and 27 of the Amended Information dated 1st June 2011.
SUBMISSION OF PARTIES ON ISSUE 1
Learned Silk representing the Appellant submitted that the Offence in Counts 26 and 27 of the Amended Information dated the 1st Day of June, 2011, on Pages 10 to 11 of the Records of Appeal Volume 1 bother on the Stealing of N2,868,750,000. 00 (Two Billion Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) being property of Bank PHB Plc., by fraudulently causing same as a loan and converting same for the purchase of 168,750,000 Units of Bank PHB Plc. Shares on behalf of Afco Associates Limited. The 1st and 3rd Respondents, being Officers of Bank PHB Plc., were charged under Count 26 while the 2nd Respondent was charged alone under Count 27. He contended that the 1st & 2nd Respondents did not dispute the Ownership of the Company.
Arguing further, learned Silk submitted that Exhibit P97 on Pages 9127 to 9130 of the Records of Exhibit is an instruction to debit the accounts of certain Companies that did not apply for Credit Facilities from Bank PHB. This Exhibit, according to the learned Silk, emanated from the 3rd Respondent. The Exhibit showed that the 3rd Respondent had instructed the transfer of the Sums of N2,868,750,000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira only to a Resolution Securities Ltd Account No: 6010716679 in Zenith Bank Plc.
He further stated that it was upon the transfer of funds to Exhibit P157 on Pages 9645 to 9649 of the Records of Exhibits Volume 29 that the Operator of the said account issued Exhibit P158 (on Page 9650 of the Records of Exhibits Volume 29) a Resolution Securities Cheque in the Sum of N2, 868, 750, 000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira only in favour of Bank PHB public offer. He urged this Court to Treat Exhibit P41 on Pages 9645 to 9649 of the Records of Exhibits Volume 29, the Shares application form of AFCO Associates for the purchase of 168, 750, 000 Units of Bank PHB Shares valued at the Sum of N2,868,750,000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira Only) as not only credible but unchallenged. He submitted that the payment for these Shares was done by Exhibit P158, (on Page 9650 of the Records of Exhibits Volume 29) a Zenith Bank cheque of Resolution Securities Ltd in the sum of N2, 868, 750, 000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira Only).
He added that Exhibit P41, which was filled and signed by the 3rd Respondent (as admitted by him on Pages 6232 to 6233 of the Records of Appeal at Volume 14) had his Staff Identity number which PW12 (on Pages 2762 to 2763 of the Records of Appeal Volume 6) identified as UA061201. He further stated that the Sum of N2, 868, 750, 000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira Only) reflects on Exhibit P97 (Pages 9127 to 9130 of the Records of Exhibits Volume 27), P157(on Pages 9645 to 9649 of the Records of Exhibits Volume 29), P158 (on Page 9650 of the Records of Exhibits Volume 29) and P41 (on Pages 9645 to 9649 of the Records of Exhibits Volume 29) to establish the unbroken chain as to the source of the funds used for the purchase of the 168, 750,000Units of Bank PHB Shares valued at the sum of N2, 868,750, 000.00 (Two Billion Eight Hundred and Sixty Eight Million Seven Hundred and Fifty Thousand Naira Only) in favour of AFCO Associates Limited.
Arguing further, learned Silk contended that DW 13 (OlorunfemiJeje of Zenith Bank Plc.) on Pages 5559 to 5563 of the Records of Appeal Volume 12 gave Evidence to the effect that Exhibit P 158 (Resolution Securities Ltd cheque no. 185 in the Sum of N2,868,750,000) in favour of Bank PHB public offer reflected in Resolution Securities Ltd Account Statement, Exhibit D134C (on Pages 8727 to 8730 of the Records of Exhibits Volume 26). He stated for the Records, that Exhibits P157 (on Pages 9645 to 9649 of the Records of Exhibits Volume 29) & D134C (on Pages 8727 to 8730 of the Records of Exhibits Volume 26) are both Resolution Securities Ltd Account in Zenith Bank Plc. While the Prosecution tendered Exhibit P157, the Defence tendered Exhibit D134C.
According to Learned Senior Counsel, the 1st Respondent admitted in the course of trial that he bought 168, 750,000Units of Bank PHB Plc. Shares valued at 2,868,750,000 (Two Billion Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira Only) in the name of AFCO Associates during the Initial Public Offer (hereinafter referred to as IPO) of 2007. He however stated that he used his incentives/entitlement from the Public Offer to pay for the shares. He added that there was no Board Resolution supporting the decision on incentives and entitlements. Reliance was placed on Section 140 of the Evidence Act to argue that the burden of proving facts that are within the knowledge of the Defendants rest on them.
Learned Silk submitted that DW12 who testified on behalf of the 2nd Respondent during the cause of his defence stated that a memo was sent to his email box by the 1st Respondent to use his entitlement to pay for the shares he bought for AFCO Associates and the Financial Company and the balance should be settled using the 1st Respondent’s accrued dividend in respect of the previous Shareholding in the name of AFCO Associates Limited. The Evidence of the 1st Respondent and the DW12 as to who the 1st Respondent gave the instruction and whether same was by a letter or electronic mail is contradictory and as such the Court cannot rely on those pieces of evidence. Reliance was placed OGUNJIMI VS THE STATE (2017) LPELR – 42768 (CA), STEPHEN VS STATE (2009) ALL FWLR (PART 49) PAGE 962, DAGAYYA VS THE STATE (2006) 7 NWLR (PART 980) PAGE 637 AT 677, GABRIEL VS THE STATE (1989) NWLR (PART 977) PAGE 545, NWANKWOALA VS STATE (2006) 14 NWLR (PART 1000) PAGE 63.
He contended that the failure of the 1st Respondent to produce Documentary Evidence in support of his assertions was fatal to his contention that the Shares bought by AFCO Associates Limited were paid through another source. He further stated that the 1st Respondent never challenged the authenticity of Exhibit P41 by Cross Examining PW2. The failure of the Respondents to challenge or cross-examine PW2 on the form used to purchase the 168, 750, 000Units of Shares in favour of AFCO Associates amounts to a concession. Reliance was placed on EGWUMI VS STATE (2013) 13 NWLR (PART 1372) PAGE 525 AT 552, OFORLETE VS STATE (2000) 12 NWLR PART 681 PAGE 415. He urged this Court to treat the evidence of the Prosecution that Exhibit P41 was the application form used to purchase the Shares in favour of AFCO Associates Limited as credible.
Finally, he stated that the trial Court was in error to have discharged and acquitted the Respondents of the offences stated in the said Counts 26 and 27 of the Amended Information, as the Prosecution was able to prove the Counts. He urged this Court to resolve this issue in favour of the Appellant.
Conversely, learned Silk representing the 1st and 2nd Respondent submitted that Appellant failed to prove the allegations in Count 26. This said count alleged that the 1st Respondent stole the sum of N2,868,750,000 by causing the said sum to be fraudulently described as a loan, and thereby converting the purported stolen sum of N2,868,750,000 for the purchase of 168, 750, 000 Units of Bank PHB Shares on behalf of AFCO Associates Limited. He went on to state that the Appellant failed to prove the elements that constituted stealing against the 1st Respondent. Reliance was placed on ODAY VS STATE (2019) 2 NWLR (PART 1655) 97 AT 113, PARAS D-E.
On the ingredient of ownership of the thing stolen and on the fact that the thing stolen is capable of being stolen, learned Silk submitted that Appellant not only failed to lead any evidence in that regard, but it was caught in a fix, because on the face of the amended information, there was a disconnection between the sums purportedly granted as false loans and the sums utilized for the purchase of Shares for AFCO Associates Limited. In particular, no evidence was led as to the identity of the company that purportedly obtained the loan of N2,868,750,000 from the bank, or that any loan in the said sum was ever granted at all. He added that the Appellant maintained the case that it was a purported fraudulent loan in the sum of N2,868,750, 000, which was utilized for the purchase of 168, 750, 000 Shares for AFCO Associates Limited. This disconnection was fatal to the charge because once the case of a loan in the sum of N2,868,750,000 was dislodged and unproven, the allegation of stealing becomes unsustainable in the first place.
Arguing further, learned Silk contended that the Appellant failed to show that the alleged sum of N2,868,750,000 used to purchase Shares for AFCO Associates Limited were proceeds of any of the purported fraudulent loans granted to the five Companies, and as such, its case as presented in Count 26 was dead on arrival and the lower Court was right to have discharged the 1st Respondent of the Count. Furthermore, the Appellant has not been able to puncture the finding of the lower Court that Appellant failed to show which of the five loans was utilized to purchase Shares for AFCO Associates Limited. He examined the Appellant’s Brief of Argument, particularly its submissions under issue three, to argue that the Appellant’s emphasis is on the ownership of AFCO Associates Limited, which ownership was duly admitted by the 1st Respondent in the course of trial at the lower Court. Thus ownership of the company was not in issue before the lower Court, and cannot constitute an issue herein, since AFCO Associates Limited was not accused of stealing. It was also not the Appellant’s case before the Lower Court that AFCO Associates Limited stole any sums of money, so its fixation on the ownership of the Company is without basis and goes to no issue as far as Count 26 of the charge is concerned.
He further argued that the law governing the determination of Jurisdiction in a Criminal Matter is to examine the status of the Charge Sheet, which contains the offence or offences alleged to have been committed by the accused person.
Reliance was placed on NGBEDE VS NIGERIAN ARMY (2021) 3 NWLR (PART 1762) 1 AT 38 PARAS A-D to argue that the Jurisdiction conferred on the lower Court by Count 26 of the Amended Information, was to interrogate the allegation that a Specific Sum of N2,868,750,000 was granted as loans, which was then used to fraudulently purchase 168,750, 000 Units of Bank PHB Shares for AFCO Associates Limited. Thus, setting the limit and extent of the lower Court’s Jurisdiction to determine whether the 1st Respondent was guilty as charged in Count 26 of the Amended Information. He also stated that the Appellant is also bound by its case made in the said Amended Information, which it failed to prove beyond reasonable doubt, making a way for the discharge and acquittal of the 1st Respondent.
According to the learned Silk, the finding of the lower Court discharging the 1st Respondent of Count 26 of the charge ought to be affirmed, being that the lower Court understanding the Jurisdiction conferred on it by Count 26, rightly found that there was a disconnect in the sums allegedly granted as loans with the sums used to purchase the Shares, which ought to have tallied mathematically.
He further stated that the Appellant was bound by the charge, having fully disclosed the essential ingredients of the offence in the charge. Furthermore, in Count 26 of the Amended Information, the Appellant did not mention any Company that the alleged sum of N2,868,750,000 was granted as a loan. At the lower Court, the Appellant led no scintilla of evidence in support of the allegation that the Bank, through the Respondents, granted any loan in the sum of N2,868,750,000. It therefore stood against logic and was bound to fail. He submitted that the decision of the lower Court can therefore not be faulted in law or in logic, because so long as the Appellant is unable to connect the loans granted to the five Companies and the sum of N2,868,750,000, the 1st Respondent had no case to answer in that regard. He stated that the submissions of the Appellant at Paragraphs 6.04 – 6.08 are irrelevant as they failed to hit the target. The Appellant has not been able to impugn the reason for the lower Court’s in discharging the Appellant of Count 26. The Appellant failed to address the specific finding of the lower Court that there was no proof that any of the loans granted to the five companies were used to purchase Unit of Shares for AFCO Associates limited. Thus, the incompatibility between the charge and the Evidence led, was a strong Legal Wicket the lower Court stood on to discharge the 1st Respondent on Count 26. He placed reliance on ONUOHA VS STATE (1989) 2 NWLR (PART 101) 23 AT 35, SUBERU VS STATE (2010) LPELR – 3120 (SC) AT PAGE 18 to argue that a Court does not have the duty to bridge the yawning gap in the case of a Party especially in a Criminal Matter.
Learned Silk referred to Count 26 of the Amended Information to argue that the nature of the charge before the lower Court demonstrates forgery was the predicate offence. Thus, if there was no fraudulent description of a loan document, there could not have been stealing and also, the fraudulent description in/of the Loan document allegedly preceded the stealing and/or formed the basis of the stealing. Therefore, the only way out for the Appellant to secure a conviction on this Count would have been to first prove the existence of the purported forged loan. He argued that the law is that, where the prosecution includes elements in a charge outside the traditional constitutive elements of the offence charged; it must, in order to ground a conviction, prove the additional elements. Reliance was placed on CHIEF OLABODE GEORGE VS FEDERAL REPUBLIC OF NIGERIA [2014] 5 NWLR (PART 1399) 1 AT 165, 168. DR. RAYMOND DOKPESI VS FEDERAL REPUBLIC OF NIGERIA & ORS (Unreported CA/ABJ/CR/1073/2020).
He argued that the implication of an allegation of fraudulent description or fraudulent creation of a Loan Document amounts to forgery. Reliance was placed on Section 363 (1) of the Criminal Code Law, C17, Laws of Lagos State 2003; AINA VS JINADU (1992) 4 NWLR (PART 233) 91 AT 106. He added that the Appellant’s submissions at Paragraph 6.09 of its Brief that 1st Respondent tendered no documentary evidence to prove that the AFCO Shares were bought with proceeds from the bonus from the IPO, is at best, premature in the circumstance because that is tantamount to shifting the onus of proof to the 1st Respondent. Since the Appellant was unable to discharge the burden of proving the allegation in Count 26, the 1st Respondent has no obligation to prove his innocence. It is the law that the burden of proof in criminal cases as to the commission of crime lies on the Prosecution, which is the party that will fail if no evidence is adduced. This onus of proving the guilt of 1st Respondent is always on the Prosecution and it never shifts. Reliance was placed on KANU VS AG, IMO STATE (2019) 10 NWLR (PART 1680) 369 AT PAGE 395, PARAS F-G. He further stated that credible, corroborated and un-contradicted evidence has more probative value than Documentary Evidence. Reliance was placed on INAKOJU VS ADELEKE (2007) LPELR-1510 (SC) PAGE 83-84, PARAS G-A. He contended that it was not the duty of the 1st Respondent in a Criminal Charge to lead evidence proving that the Board of the Bank sanctioned the bonus he earned on the Initial Public Offer, even though he did so through his uncontroverted evidence.
He argued further that the Appellant failed to address the reason for the decision of the lower Court on the discharge and acquittal of the 1st Respondent on Count 26 of the Charge. The Appellant rather chose to focus on other issues that do not strike the core finding of the lower Court as there was nothing in the evidence led by the Prosecution that showed clearly that the sum of N2,868,750,000 alleged in Count 26 came from any of the five Loan Accounts that form the subject matter of Jurisdiction in this case. Reliance was placed on STANBIC IBTC HOLDING PLC.VS FRCN (2020) 5 NWLR (PART 1716) 91 AT PAGE 131, PARAS B-D to argue that the Appellant has failed to attack the Ratio Decidendi of the lower Court. Further Reliance was placed on BAKARI VS OGUNDIPE (2021) 5 NWLR (PART 1768) 1 AT PAGE 34, PARA E, RAPHAEL & ANOR VS EZI (2014) LPELR-23328(CA), PAGE 29, PARAS. A-C.
He concluded by stating that the Appellant had failed to provide any legal basis to upturn the decision of the trial Court. The burden is always on the Prosecution to prove the guilt of the Accused; it is not the business of the 1st Respondent to prove his innocence. He can decide to keep mute from beginning of the trial right through to the end. It is for the prosecution to make out a prima facie case against him through credible evidence, which must be laid bare before the Court. Reliance was on COP VS AMUTA (2017) LPELR-41386 (SC), PAGES 24-25 PARAS D-A. He urged this Court to resolve this issue in favour of the 1st Respondent.
Similarly, learned Silk representing the 3rd Respondent submitted that the lower Court was perfectly right in discharging and acquitting the 3rd Respondent in respect of Count 26. He noted that the only connection the Appellant sought to link the 3rd Respondent in this ground is that he filled a Shares Application Form, Exhibit P41 at Page 8900, Volume 27 of the Record of Exhibits and also issued Exhibit P97, an email request for the transfer of the Sum of N2, 868, 750, 000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) at Page 9127, Volume 27 of the Record of Exhibits to an account in Zenith Bank Plc., to a Customer of Bank PHB, at the instance of the said Customer in the usual course of Banking Duty.
He further submitted that the 3rd Respondent’s role in the Initial Public Offer was limited to his role as a member of the Transaction Monitoring Committee (TMC) set up by Bank PHB Plc to monitor the preferential allotments of Shares. He further contended that the request made by the 3rd Respondents in Exhibits P95 and P97 were mere request for transfer of funds based on the Customers’ Instructions in the normal course of business of Bank PHB Plc. to the relevant Officers and Departments of the Bank, who had a corresponding duty to receive such requests in the normal and usual cause of the Bank’s Business. He noted that as at the date of Exhibits P95 and P97, the loans in question had already been created and approved by the Bank, with the accounts of the Customers fully funded or in credit.
He further noted that the requests were made to the other departments of the Bank with corresponding duties to treat the requests, and those said departments who did not raise any red flags or queries on the request, duly treated the requests. He then relied on Exhibit P145, a document co-signed by PW7, who later claimed to have raised the issue of customer instruction, and was also written by the Bank confirming the transfers, showing that the transactions were done in the normal course of business. He further added that the requests for the transfer of funds would not have been treated if the accounts of the Customers of the Bank were not funded and no “Deal Slips” issued. He further contended that the no request for transfer of funds is possible without a “Deal Slip” being first prepared and approved. A “Deal Slip” would only approve a transfer request, where the Current Account of the customer requesting a transfer or on whose behalf a request is being made, is fully funded and in credit.
It was also his contention that the Appellant struggled to make out a case against the 3rd Respondent for wrongful approval of loans, when indeed he was not in any way shown to be involved with the loan creation. He added that the 3rd Respondent was also not involved in the process of credit approval and the process of Availment Ticket Approval. It was also in evidence that the 3rd Respondent did not sign off on any loan form or approval or availment tickets as confirmed by the testimony of PW9, Ms. Phillipa Ulasi.
He further submitted that the Appellant woefully failed to prove that the said sum of N2, 868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) was taken from any of the purported contrived 5 loan accounts and/or used in purchasing the said 168,750,000 Units of Bank PHB Shares in the name of AFCO Associates Limited. He added that the alleged sum of N2,868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira), purportedly used to purchase Shares on behalf of AFCO Associates Limited, did not tally with any amount allegedly granted as loans to the five companies stated in Counts 1-10 of the Amended Information. Further, the Appellant’s witnesses could not mention any of the Companies to whom the Sum of N2, 868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) was given as loan to purchase Shares in the name of AFCO Associates Limited.
He further stated there was unchallenged evidence by the DW12 to suggest that Exhibit P41 filled by the 3rd Respondent was not even the form used in buying AFCO Associates Limited’s Shares. PW12 further corroborated the Evidence of the 1st Respondent that the total sum of N2, 868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) that was used in purchasing the AFCO Associates’ Shares, was taken from the 1st Defendant’s bonus from the Initial Public Offer (IPO) of Bank PHB.
He was of the view that suspicion no matter how strong cannot take the place of Legal Evidence or Ground a Conviction for a Criminal Offence. Reference was made to the Case Authorities of STATE VS AJAYI (2016) LPELR40663(SC) and AL-MUSTAPHA VS STATE (2013)17 NWLR (PART 1383) 350. He further submitted with respect that the fact that the 3rd Respondent was earlier found by the trial Court to have filled the Shares purchase form for AFCO Associates Limited, Exhibit P41 and also issued Exhibit P97, the email instruction for the transfer of N2, 868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira), this was not enough to convict the 3rd Respondent, most especially when the Appellant could not prove that the said Money was part of the alleged loan accounts that formed part of Counts 1-10. He was of the view that the Appellant failed to prove that said sum was from any of the alleged contrived 5 loans.
Furthermore, learned Silk representing the 3rd Respondent contended that the Appellant failed to prove any Criminal Intention on the part of the 3rd Respondent, when he filled Exhibit P41 and also sent Exhibit P97. He further stated that it was duty of the Prosecution to prove every element of the Offence as stated in the charge. Failure to prove any of the ingredients of the offence as charged, will result in the accused being entitled to an acquittal by the trial or Appellate Court. He further submitted that the Appellant’s failure to prove all these elements contained in the charge against the 3rd Respondent was fatal and the trial Court was right to have discharged the 3rd Respondent of the offence charged in Count 26 of the charge. Reliance was place on the Case Authority of FRN VS AMAH & ANOR (2015) LPELR-24563 (CA). He then urged this Court to resolve this issue in favour of the 3rd Respondent.
By way of reply to the 1st and 2nd Respondent, learned Silk representing the Appellant submitted that it is not the duty of an accused person to draw up a charge against himself or that the Prosecution ought to charge him for a particular offence. He submitted that it is only the Prosecution that has the Prerogative to file a charge, after it has carried out its investigation. Reliance was placed on YONGO VS COP (1992) 8 NWLR (PART 257) PAGE 36, CHIMA IJIOFFOR VS THE STATE (2001) 9 NWLR PT. 718 PG 371, MUMINI VS FRN (2018) 13 NWLR PT 1637 PG 568 AT 578.
He was also of the view that as long as the Prosecution did not charge the Respondent for forgery or include forgery as a predicate offence in the charge that gave rise to this appeal, then the contention of the 1st Respondent that the Prosecution ought to prove and establish the ingredients of forgery, ought to be discountenanced by this Court. Furthermore, “fraudulently describing as a loan” does not connote forgery as forgery has been defined in FRN VS ODUAH (2020) 12 NWLR PART 1737 PAGE 16 to mean false creation of a document or writing knowing it to be false and with the intent that it may be used or acted upon as genuine. He added that the Case Authority of DR. RAYMOND DOKPESI VS FEDERAL REPUBLIC OF NIGERIA & ORS (Unreported CA/ABJ/CR/1073/2020) relied on by the 1st and 2nd Respondent, does not apply to this instant appeal, as the Prosecution in that case, had included in the respective Counts the fact that the Appellant received proceeds of the unlawful activity of Colonel Mohammed Sambo Dasuki.
Learned Silk further argued that the case of the Prosecution is two pronged, and as such it is not the Appellant’s case that a loan in the Specific Sum of N2,868,750,000 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira Only) was granted to either AFCO Associates, GhazaliYakubu Investment or any Company at all. He urged this Court to resolve this Appeal in favour of the Appellant.
In reply to the 3rd Respondent’s argument, Learned Silk representing the Appellant contended that it was DW19 on Page 6518 of the Records of Appeal Volume 14 that gave evidence on this point, even though he did not work in the Treasury Operations department of the Bank, which is the department that effected the transfer out of the Bank. He was of the view that DW19’s Evidence on this point with respect falls within the class of legally prohibited evidence because DW19 stated categorically that he was not a staff of the Treasury Operations Department of the Bank and was only seeing Exhibits P95 and P97 for the first time in Court. He drew the attention of this Court to his evidence under Cross-Examination on Page 6552 of the Records of Appeal Volume 14.
He further submitted that DW19 stated on Pages 6557 of the Records of Appeal Volume 14 that being an Internal Control Officer of the Bank he was only involved in post review of transactions and had nothing to do with carrying out transaction or effecting posting. The purported “deal slip,” which was utilized to effect the transfer in P95 and P97, were never presented to the Court. The 3rd Respondent did not even deem it necessary to place before the Honourable trial Court a sample of what a “deal slip” was, believing the Honourable Trial Court will speculate about same, contrary to the position of the law that a Court does not speculate but acts on cold, hard facts and nothing more. Reliance was placed on FBN VS DAVIES (2017) LPELR-43556 (CA), UNITY BANK PLC VS RAYBAM ENGINEERING LTD (2017) LPELR-41622 (CA), ITA & ANOR VS STATE (2013) LPELR-21392 (CA). He further submitted that fact that the 3rd Respondent did not sign a Loan Document is not sufficient to extricate him for the offences for which he was charged.
He disagreed with the argument of the 3rd Respondent that the sum of N2, 868, 750, 000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira Only) was purportedly used to purchase Shares on behalf of AFCO Associates and this figure did not tally with any amount allegedly granted as loans to the five Companies stated in Counts 1 – 10 of the Amended Information. This was the basis on which the 3rd Respondent misconceived the case of the Prosecution, which the Honourable Trial Court understood and appreciated at Page 28 of the Judgment (on Page 75 of the Records of Appeal transmitted by the Appellant on the 25th day of January, 2022) when it held thus:
“But I should add that there are two circumstances of stealing in this Charge. There is the case of the fraudulent conversion of the sums of money that were described as …(loans) in Counts 2,4,6,8 and 10 of the Charge, and then there is the case of the conversion of monies fraudulently made out to be loans used to purchase Shares in the name of the beneficiary companies. The latter circumstance is what Counts 11 to 22 and 24 to 27 of the Charge are about. The former deals with the loans granted the five companies (“the loan companies”) whilst the latter scenario concerns the use of purported loaned sums to purchase Shares for the fourteen other companies (the beneficiary companies).”
He stated that the above pronouncement of the Honourable Trial Court has not been appealed against. The case of the Prosecution is two pronged and it was not the Appellant’s case that a Loan in the specific sum of N2, 868, 750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira Only).
He further submitted that the finding of the trial Court in respect of DW12’s Evidence that Exhibit P41 was not the form used to purchase the 168, 750,000 Units of AFCO Associates Shares in the sum of 2,868,750,000 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira Only) was that: –
“It was PW2 of First Registrars who had certified Exhibit P41 as a True Copy of the application form that was in the custody of the Registrar to the offer. From his evidence, I have no doubt in my mind that it was that particular application form, filled by the 3rd Defendant, with which AFCO Associates Limited’s application for shares was processed by the Registrar.”
Arguing on the findings of the trial Court, he stated that the above finding was not appealed against by the 3rd Respondent and as such remains a valid Decision. Reliance was placed on OSHODI VS. EYIFUNMI (2000) 13 NWLR PART 684 PAGE 298, NWABUEZE VS OKOYE (1988) 4 NWLR PART 91 PAGE 664. He added that lower Court’s findings were to the effect that the funds used to purchase Shares came from the vaults of the Bank and that it was not paid on the basis of some entitlement.
It is his contention that the 3rd Respondent acted beyond his scope of his “finance” duty by taking over the clerical role of filling the forms for the purchase of Shares. He relied on the Provisions of Section 383 of the Criminal Code of Lagos State 2003, to state that any person who dishonestly takes the property of another person or converts the property of another is guilty of the offence of stealing. For the offence of stealing to be established, there must therefore be a fraudulent taking or fraudulent conversion of such thing to the use of the accused or the use of any other person. Further reliance was placed on the Case Authority of ALAKE VS STATE (1991) 7 NWLR PART 205 PAGE 567. It is his contention that the Respondents took the monies of Bank PHB Plc and used the said monies by converting same to their own use. Further reference was made to Section 383 (6) of the Criminal Code of Lagos State 2003; STATE VS AJULUCHUKWU (2011) 5 NWLR PART 1239 PAGE 78, ONWUDIWE VS. FRN (2006) 10 NWLR PART 988 PAGE 382.
He further relied on the 8th Edition of Black’s Law Dictionary to define Conversion to mean: 1) The act of changing from one form to another; the process of being exchanged and 2) The wrongful possession or disposition of another’s property as if it were one’s own. He was of the view that the term “conversion” as used in the Criminal Code of Lagos State is the possession of another person’s property, which is in the form of taking. Accordingly, conversion as referred to in Count 26 has to do with the use by the Respondents. Before a person can convert money to another thing he must first and foremost take the said money. Reliance was placed on AJIBOYE VS STATE (1995) 8 NWLR PART 362 PAGE 587 AT 599.
He urged this Court to hold that the Evidence adduced at the trial by the Prosecution was sufficient to establish the Offence of Stealing
ARGUMENT OF PARTIES ON ISSUE 2
On the issue as to whether the trial Court was right to have discharged and acquitted the 2nd Respondent, learned Silk representing the Appellant submitted that the 2nd Respondent was charged alongside the 1st and 3rd Respondents for conspiracy to steal the sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited in count 23 of the Amended Information dated 1st June, 2011. He added that the trial Court was in error to have discharged the 2nd Respondent despite convicting the 1st and 3rd Respondent under this Count.
Arguing further, learned Silk contended that the Form CAC 2 and CAC 7 of Ghazali Yakubu Investment Limited and AFCO Associates Limited marked as Exhibit P78 and Exhibit P83 respectively and as seen on Pages 9077 – 9084 of the Record of Appeal Volume 27, showed that the 2nd Respondent was the majority owner of Ghazali Yakubu Investment Limited and a Director/Shareholder of AFCO Associates Limited. According to him, Exhibit P83 reveals that the ownership of AFCO Associates Limited is vested in the 1st and 2nd Respondents, both of whom possess 150,000 Units of Shares. The 1st Respondent admitted this severally during the course of trial.
Arguing further, learned Silk set out the Statement of the 2nd Respondent made to the Economic and Financial Crimes Commission (Hereinafter referred to as EFCC) (as seen as Page 9134 of Records of Appeal Volume 29) to argue that she owned AFCO Associates Limited.
He referred to Exhibit P78, the Incorporation Documents of Yakubu Ghazali Investment Limited to submit that the 2nd Respondent had 80,000 Shares out of the 100,000 Shares in the Company, while the 1st Respondent’s Sister and Mr. Udeh Victor both had Nominal Shares of 10,000 Units each. He expressed his surprise that the 2nd Respondent in her Statement to the EFCC, Exhibits P182 – P183 on Pages 9133 – 9134 of the Records of Appeal Volume 29 stated that she did not know anything about the Company and had elected not to give any evidence or explanation in the course of trial, as to how her name came about on the incorporation documents of Ghazali Yakubu Investment Limited.
He further stressed his point that the Appellant as the Prosecution had established the 2nd Respondent’s ownership of not only AFCO Associates Limited, but of Ghazali Yakubu Investment Limited. He was of the view that the Appellant’s evidence that the 2nd Respondent owned Ghazali Yakubu was more credible than the tale told by the 1st Respondent that the Company was being promoted and run by the Minority Shareholder, Mr. Victor Udeh. He further added that the 1stRespondent was not a Director or Shareholder of Ghazali Yakubu Investment Limited. Thus his knowledge of the operation of the Company, was suspect and as such, the Trial Court ought not to have held thus:
“I see that this certificate was collected by the 1st Defendant even though Mr. Udeh was fully and solely in charge of the Company, and even though the 2nd Respondent had no recollection at all of the existence of the Company.”
Learned Silk reiterated that the 1stRespondent admitted collecting the Shares Certificate of Ghazali Yakubu Investment Limited and the Prosecutorial Evidence on the Records shows that the Dividend Warrants of GhazaliYakubu Investment Limited in Exhibit P44(on Pages 8924 to 8929 on the Records of Exhibits Volume 27) were cleared into an Account which was being operated and controlled by the 1st Respondent, the Spouse of the 2nd Respondent. For emphasis, the said Dividend Warrants of Ghazali Yakubu Investment Limited on Page 8929 of the Records of Exhibits at Volume 27 have Dividend Warrant Nos: 00054691 and 00051959 in the Sum of N27,337,500.00 and N41,006,250.41 respectively. The said Dividend Warrant no: 51959 in the Sum of N41,006,250.41 was cleared into Exhibit P211as seen on Pages 9837 to 9841 of the Records of Exhibits Volume 29. Attention was drawn to one of the transactions (the 44th transaction) on the 15th day of December 2008 on Page 9838 of the Records of Exhibits Volume 29. Further, reference was made to the decision of the Honourable Trial Court on Page 7210 of the Records of Appeal Volume 16 to the effect that the 1st Respondent, who is the Spouse of the 2nd Respondent, was operating the said account.
It is his contention that the 2nd Respondent conspired with her husband, the 1st Respondent, to commit the Offence for which she was charged by making available her Company to be used to acquire shares with the proceeds of the fictitious and contrived loans.
Learned Silk wondered how the trial Court came to the conclusion that Ghazali Yakubu Investment Limited, from the evidence before the Court, was fully and solely controlled by Mr. Udeh. He submitted that the trial Court went against the settled position of the law that oral evidence cannot contradict the contents of documentary evidence. Reliance was placed on ELIAS VS FRN & ANOR (2016) LPELR40797 (CA), ISAH VS STATE (2017) LPELR-43472 (SC).
Learned Silk further contended that by ceding control of Ghazali Yakubu Investment Limited to Mr. Victor Udeh, the Prosecution has established the Offence of Conspiracy against the 2nd Respondent as contained in Count 23, of the Amended Information. He was of the view that the Offence of Conspiracy is seldom established by direct evidence, and as such the Court is at Liberty to draw necessary inferences from the peculiar facts of each case. Reliance was placed on Case Authorities of OSHO VS STATE (2019) LPELR – 47491 (CA), AKOGUN VS STATE (2018) 3 NWLR PART 1605 PAGE 137 AND AGUGUA VS STATE (2017) LPELR – 4202 (SC).
Learned Silk further contended that the trial Court having held that the Prosecution had successfully proven the Offence of Conspiracy against the 1st and 3rd Respondent for the Offence of Conspiracy, who were jointly charged with the 2nd Respondent for the Offence of Conspiracy in Count 23, the trial Court ought to have drawn the inference or the conclusion that the 2nd Respondent also conspired with the 1st and 3rd Respondents in respect of the offences in Count 23 of the Amended Information and as such, the Acquittal of the 2ndRespondent in respect of Count 23 of the Amended Information is not supported by the Evidence before the trial Court.
On the issue as to whether the trial Court was right to have acquitted the 2nd Respondent, learned Silk representing the Appellant, submitted that the 2nd Respondent was the Alter-ego of GhazaliYakubu Investment Ltd owning 80,000 Units of Shares out of the 100,000 Units indicated, and by implication is the Majority Shareholder. Thus this Court is entitled to draw a logical inference that either a Legal or Beneficial Ownership resides in the 1st& 2nd Respondents, because the name of the 2nd Respondent is on the Corporate Affairs Commission documents and she did not rebut the evidence before the Trial Court.
Arguing further, learned Silk submitted that the Dividend Warrants of Ghazali Yakubu Investment Limited on Page 8929 of the Records of Exhibits Volume 27 particularly Warrant No: 51959 in the sum of N41,006,250.41 was cleared into Exhibit P211 on Pages 9838 of the Records of Exhibits Volume 29 on the 15th day of December, 2008. Exhibit P39, Dividend Warrant Collection Schedule on Pages 8898 to 8899 of the Records of Exhibits Volume 27 shows that Ghazali Yakubu Investment Limited benefitted from the Dividend Warrant Number 51959 in the Sum of N41,006,250.41 and Dividend Warrant Number 54691 in the Sum of N27, 337, 500.00.
He added that Exhibit P97 (on Pages 9127 to 9130 of the Records of Exhibit Volume 27) is the instruction from the 3rd Respondent to debit certain accounts contained and scheduled on Page 3 of Exhibit P97. One of the instructions on Exhibit P97 is to transfer the sums of monies to Oceanic Bank Plc. He referred to Exhibits P105 & P106, which are the Futureview Securities Account in Bank PHB Plc., on Pages 9276 to 9277 of the Records of Appeal Volume 28, to state that there was a debit transaction in the Sum of N2,868,750,000.00 (Two Billion Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) in favour of Falcon Securities Account in Oceanic Bank Plc.
He further stated that Falcon Securities Account in Oceanic Bank Plc. (Now Eco Bank Limited as stated on the Exhibit) was tendered and marked as Exhibit D127A on Pages 8646 to 8676 of the Records of Exhibits Volume 26. The Said Sum of N2, 868,750,000 (Two Billion Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) reflects in Exhibit D127A, the Statement of Account of Falcon Securities Limited with Oceanic Bank Plc., (Now Eco bank Limited). It was upon the transfer of this Sum to the said Account in Oceanic Bank that Exhibit P169 (on Page 9678 of the Records of Exhibits Volume 29) in the Sum of N2,868,750,000 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira Only) was issued in favour of Bank PHB PLC. Public Offer. Learned Silk made reference to the Cheque Number 10283909 on Exhibit P169 (on Page 9678 of the Records of Exhibits Volume 29), which reflects clearly (IN THE FIFTH TRANSACTION) on Exhibit D127 A (SPECIFICALLY on Page 8651 of the Records of Exhibits Volume 26). Reference was made Exhibit P44 (on Pages 8924 to 8929 of the Records of Exhibits at Volume 27), which is the Application Form for Ghazali Yakubu Investment Limited for the purchase of 50,000 Units of Bank PHB Shares at the value of N2,868,750,000.00 (Two Billion Eight Hundred and Sixty-Eight Million Seven Hundred and Fifty Thousand Naira Only) filled and signed by the 3rd Respondent with his official telephone line as contained in Exhibits P95, P96 and P97 on Pages 9110 to 9130 of the Records of Exhibits Volume 27. This evidence was given by PW 10 and PW12 and corroborated by the 3rd Respondent in his Statement seen in Exhibit P184 on Pages 9135 to 9137 of the Records of Exhibits Volume 29.
He further referred to Exhibit P131 (on Page 9459 of the Records of Exhibits Volume 28) which is the Deposit Slip for the payment of the Sum in Exhibit P169, for the purchase of Shares in favour of Ghazali Yakubu Investment Limited, valued at N2,868,750,000.00 (Two Billion Eight Hundred and Sixty Eight Million Seven Hundred and Fifty Thousand Naira Only). It is important to state here that the figures in Exhibits D127A on Pages 8646 to 8676 of the Records of Exhibits Volume 26, P169 (on Page 9678 of the Records of Exhibits Volume 29) P131 (on Page 9459 of the Records of Exhibits Volume 28) and P44 (on Pages 8924 to 8929 on the Records of Exhibits Volume 27) ALL TALLY.
Particularly, the Cheque Number in D127A (on Page 8651 of the Records of Exhibits Volume 26), PAGE169 (on Page 9678 of the Records of Exhibits Volume 29) and P131 (on Page 9459 of the Records of Exhibits Volume 28) ALL TALLY to establish the nexus as to where the money utilized to purchase 168, 750,000 Units of Bank PHB Shares in the Sum of N2, 868, 750,000(Two Billion Eight Hundred and Sixty Eight Million Seven Hundred and Fifty Thousand Naira Only) was derived from.
Learned Silk further argued that despite the glaring and unimpeachable fact contained in Exhibit P78 on Pages 9054 – 9061 of the Records of Exhibits Volume 27 as to the Ownership of Ghazali Yakubu Investment Limited, the 2nd Respondent elected not to give Evidence to controvert her Ownership of the Company as advanced by the Prosecution. The failure of the 2nd Respondent to give evidence personally on her relationship with this Company ought to have been treated as an Admission that she owns the Company.
Learned Silk contended that the attempt of the 1st Respondent to detach the 2nd Respondent from the Ownership of the Company in the course of his evidence by alluding to the fact that Victor Udeh is the directing mind of the Company, amounts to Hearsay Evidence and as such is prohibited under Sections 37 & 38 of the Evidence Act.
He added that the 1st Respondent confirmed receiving the Dividend Warrant for Ghazali Yakubu Investment Limited. He made reference to the Records of the Cross-Examination of the 1st Respondent to state that the answers given by the 1st Respondent constitutes an Admission, which supports the case of the Prosecution that the 1st and 2nd Respondents were the Ultimate Beneficiaries of the 168, 750,000 Units of Bank PHB Plc., Shares purchased with the Sum of N2, 868, 750, 000 Units (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) on behalf of Ghazali Yakubu Investment Limited. He urged this Court to resolve this issue in favour of the Appellant.
Conversely, learned Silk representing the 1st and 2nd Respondent contended that the central theme of the Appellant’s contention in this instant appeal, against the 2nd Respondent, is that she must be guilty of the Criminal Offences of Conspiracy to Steal and Stealing, if Companies allegedly owned by her, or in which she allegedly has substantial interests, received Shares from Bank PHB. Curiously, the Appellant has not levied any allegation of wrongdoing against the Companies allegedly linked to the 2nd Respondent therein. Neither Ghazali Yakubu Investment Limited nor AFCO Associates Limited is being prosecuted for any offence that will warrant the burden of their supposed Criminal Actions to fall on their operating minds and/or hands. He further submitted that the Appellant did not credit any criminal act to the 2nd Respondent, other than allege that, being the wife of the 1st Respondent, and a Director in Ghazali Yakubu Investment Limited and AFCO Associates Limited, she must be guilty of Stealing from Bank PHB.
He further contended that the 2nd Respondent is neither a staff of Bank PHB nor was she involved in the grant of any Loan Application to any of the Companies that received the allegedly forged loans. It is not in contention that the 2ndRespondent did not instruct, or mandate the purchase of the Shares of Bank PHB for any of the Two Companies mentioned in Counts 23, 25 and 27. Submitting further, Learned Silk representing the 1st and 2nd Respondents stated that a Corporate Entity enjoys a different personality from their Promoters and Directors, and that they have the attendant rights to sue and be sued even for alleged Criminal Transgressions. Reliance was placed on Section 42 of the Companies and Allied Matters Act 2020; NEW RES. INTL LTD VS ORANUSI (2011) 2 NWLR (PART 1230) 102 AT 24 – 125, ADEYEMI VS LANBAKER (NIG) LTD. (2000) 7 NWLR (PART 663) 33 AT PAGE 51. He submitted that Exhibit P78, tendered by the Appellant, settles the fact that Ghazali Yakubu Investment Limited and AFCO Associates Limited are Entities duly registered with the Corporate Affairs Commission and by implication enjoy the Rights accorded to them by Section 42 of Companies and Allied Matters Act.
Learned Silk contended that the fact that the 2nd Respondent was a Director in either Ghazali Yakubu Investment Limited or AFCO Associates Limited, and therefore must be guilty of the offences for which she was charged, is untenable in law. He added that even if the Receipt of the Bank PHB Shares by Ghazali Yakubu Investment Limited and AFCO Associates amount to a Criminal Offence, before a Criminal Act of a Company is to be transferred to any of the Directing minds of the Company, the Person requesting for the transfer of culpability, must establish beyond Reasonable Doubt, the Specific Steps taken by such Directing Mind or Hands in the Commission of the said Crime. Reliance was placed on A.C.B. LTD VS APUGO (1995) 6 NWLR (PART 399) PAGE65.
Thus from the Constitution of the parties, the Appellant has not allocated any wrongdoing to both Ghazali Yakubu Investment Limited and AFCO Associates Limited. Furthermore, they are not parties to this appeal. It was also contended that there was no basis for the Appellant to insist on the incarceration of the 2nd Respondent, when the said Companies are in the Eyes of the Law, taken not to have committed any Offence. They are thus innocent of the Offences of Stealing, and more particularly, Receipt of Proceeds of Crime. Assuming the Shares have been proven to be held by the said Companies, these Companies validly hold the shares since they have neither been charged nor convicted for owning Shares purchased with the Proceeds of Crime. It will therefore be out of place to insist on Criminal Liability against the Respondent on the grounds that she is a Director in a Company against which, no wrongdoing has been alleged of taking the funds and utilizing them.
Learned Silk made references to Counts 24, 25, 26 and 27 of the Amended Information to argue that these Counts are at cross-purposes with one another. While Count 24 alleges that the 1st and 3rd Respondents stole the Sum of N2,868,750, 000.00 and converted the Money to their own use, to wit, purchase of 168,750, 000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited, Count 25 alleges the same exact offence and for personal use; only this time, it says that it is the 2nd Respondent that committed the offence.
Similarly, Appellant’s Count 26 alleges that the 1st and 3rd Respondents stole the Sum of N2,868,750,000.00 and also converted same to their own personal use, by using the said allegedly stolen money to purchase 168,750, 000 Units of Bank PHB Shares on behalf of AFCO Associates Limited. Furthermore, the Appellant proceeded, in Count 27, to accuse the 2nd Respondent of the same exact offence for personal use.
Instructively, while the 1st and 3rd Respondents are being charged for stealing by allegedly initiating Forged Loan Transactions, the Appellant, by charging the 2nd Respondent for the same offence, posits that contrary to the particulars of its allegations in Counts 24 and 26, it was the 2nd Respondent, in an unrelated instance of stealing that allegedly stole the said sum and converted it to the use stated; particularly since the 2nd Respondent has not been shown to issue or receive any loan from Bank PHB, and the allegations in Counts 24 – 27 could only have been carried out in one way.
Another debilitating vice which also afflicts the Appellant’s case is the fact that despite its allegation that the Respondents stole monies in respect of the two companies stated in Counts 24 to 27 by fraudulently describing them as loans, no iota of evidence whatsoever was produced by the Appellant to show that the said Companies were given any loan by the bank.
Learned Silk further submitted that it was clear that even on the face of the counts, the Appellant was unable to say without any reasonable doubt that either of the 1st and 3rd Respondents or 2nd Respondent committed the offences contained therein. The said Counts 24 and 25, 26 and 27, show that the Appellant has only presented a guessing game before the trial Court and by implication, before this Honourable Court, and is asking this Court to guess which of the Respondents committed the offence. The point must be made that in the Judgment of the lower Court, particularly at Page 241 (as seen on Page 7255, Volume 16 of the Records), the lower Court convicted the 1st and 3rd Respondents of the exact same offence in Count 24 but the Appellant now urges your Lordships to convict the 2nd Respondent of the same offence in Count 25.
The law is trite that when an Accused Person is charged for a Criminal Offence, the Prosecution must show beyond Reasonable Doubt that is in indeed the accused person that carried out the alleged Crime. Reliance was placed on OGBODU VS THE STATE (2017) LPELR – 43402 (CA) PAGE 24 to argue that this Court is bound to undertake a review of the Counts listed and investigate whether the said Count can assure the Court, that the Offences alleged therein, were carried out by any of the Respondents, particularly the 2ndRespondent. The only outcome of such an investigation would be an assurance that the Counts, on its own costs, had unwavering doubts as to the identity of the accused person that carried out the alleged Stealing contained therein. Furthermore, Counts 24, 25, 26 and 27 of the Appellant’s Amended Information presents an invitation for Speculation and the law is trite that such speculation cannot ground Criminal Liability. Reliance was placed on YINUSA VS STATE (2016) LPELR – 41384 (CA), AMADI & ORS VS THE STATE (1993) 8 NWLR (PT 314) 644 AT 663, EGBERETAMU VS STATE (2014) LPELR – 22615 (PAGE29 PARAGRAPHS A), AYENI VS PEOPLE OF LAGOS STATE (2016) LPELR – 41440 (CA) (PAGE 50 PARAGRAPHS E-E), ANYANWU VS STATE (2012) LPELR – 14196 (CA) (PARAGRAPHS 17 PARAGRAPHS), AYOADE VS STATE (2020) 9 NWLR (PART 1730) 577 AT 604, STATE VS YAHAYA (2019) 13 NWLR (PART 1690) 397 AT 430.
It is the contention of the learned Silk that there was no single shred of evidence capable of backing up or upholding such a finding on the Respondents before this Honourable Court. However, the dearth of Evidence notwithstanding, the Counts in themselves, are self-defeating, the reliefs of the Appellant on these counts are antithetical to logic and reasoning, and as such this Court is devoid of the jurisdiction to pick at random, which Accused Person to pin a Crime on, as is being urged by the Appellant herein.
Furthermore, Learned Silk contended that the Appellant failed to demonstrate Evidence to back up its allegations against the 2nd Respondent. It is his contention that the Appellant’s case at the lower Court was that the 1st and 3rd defendants forged Loan Documents for 5 Companies, mentioned in Counts 1 – 10, and used the said Loan documents to take out monies from Bank PHB. He added that the Appellant further posited that the monies taken out through those supposedly forged Loan Documents were then used to purchase the Bank PHB Shares for the Companies, and these arguments populated Counts 11 – 27. Apart from the mathematical impracticability of the Case as laid out, since in reality, the Appellant is alleging that 1st and 3rdRespondents stole about N18.2 Billion and then used the same money to purchase Shares worth over N30 Billion, no mention was made to the 2nd Respondent’s involvement in any of this supposed fabrication of forged loan documents, using the forged loan documents to purchase Bank PHB Shares or even directing that the loaned out amounts be used to buy Shares or for whatever other purpose at all.
He further stated that the Appellant relied on a total of 272 Exhibits, but not one of these Exhibits showed any interaction between the 2nd Respondent and the sums alleged to have been stolen; either while they were still supposedly kept in the vaults of the bank or afterwards, when the sums were allegedly Loaned out and used to purchase shares. There is also no Evidence before the lower Court and by extension, this Court, that the 2nd Respondent received any money in form of Loan Grants or Bank PHB Shares Purchases in her own name. The 2ndRespondent was not shown to have applied for any Loan with Bank PHB or to have approved any sum to be transferred out of Bank PHB. Furthermore, the 2nd Respondent was not shown to break into the Vault of the said Bank PHB and cart away monies therefrom. In the entirety of the trial, spanning Nine Years, 272 Prosecution Exhibits and 12 Prosecution Witnesses, there was not One Single Positive or Overt Act attributable to the 2nd Respondent, in alleged proof of her participation in the crimes alleged. There is also nothing in the Eighteen (18) Paged Appellant’s brief suggestive of any steps or actions taken by the 2nd Respondent in furtherance of a Criminal Act or Intent. He relied on GIKI VS STATE (2018) 6 NWLR (PART 1615) 237 AT PAGE 247 to argue that an Accused Person is presumed innocent until proven otherwise and the Burden of proving guilt, which does not shift, lies on the Prosecution. Reliance was placed on WILLIAMS VS STATE (1992) 8 NWLR (PART 261) 515 AT 521, ABACHA VS THE STATE (2002) 11 NWLR (PART 779) 437, AJAEGBO VS STATE (2018) 11 NWLR (PART1631) 484 AT 513, UGHENEYOVWE VS STATE (2004) 12 NWLR (PART 888) 626 AT 649, IKO VS STATE (2001) 14 NWLR (PART 732) 221, DIKE VS STATE (2022) 2 NWLR (PART 1813) 1 AT PAGE 40.
Learned Silk contended that the lower Court was very clear that there was nothing before it beyond the realm of suspicion to warrant a conviction of the 2nd Respondent. He added that there was no appeal against the clear findings by the lower Court that the allegations against the 2nd Respondent, amounts to nothing but a swarm of suspicions. He further stated that the law is trite that un-appealed findings of a Court remains valid and subsisting until it is set aside. Reliance was placed on the Case Authorities of AGAGU VS MIMIKO (2009) 7 NWLR (PART 1140) 342 AT 416, INTEGRATED REALTY LTD VS ODOFIN (2018) 3 NWLR (PART 1606) 301 AT 329 – 330, TRADE BANK PLC. VS PHARMATEK IND. P. LTD (2020) 8 NWLR (PART 1725) 124 AT 162.
He finally urged this Court to resolve this appeal in favour of the 2nd Respondent, as the Appellant has failed to demonstrate the culpability of the 2nd Respondent in Counts 23, 25 and 27 beyond Reasonable Doubt.
By way of reply, learned Silk Representing the Appellant relied on the Case Authority of OYEBANJI VS STATE (2015) 14 NWLR PART 1479 PAGE 270 AT 275 to argue that an Alter-ego of a Company may be charged for stealing, where the Company was the Conduit Pipe used to perpetuate the Fraud. He stated that both Companies (Ghazali Yakubu Investment Limited and AFCO Associates Limited) were not engaged in any business, had no administrative offices, staff or management and that they were nothing but ‘shelf companies’ available as a Platform or Conduit for illicit activities. He added that certain acts, motives or opinion of a Company are ascribed to the directing minds of the Company when the Company is used to perpetuate Fraud or a Criminal Act. Reliance was placed on FDB FINANCIAL SERVICE LTD VS ADESOLA (2000) 8 NWLR PART 668 PAGE 170, NBCI VS INT GAS NIG LTD (1999) 8 NWLR PART 613 AT PAGE 119.
Learned Silk further argued that the 1st & 3rd Respondents were charged under Section 390 (7) of the Criminal Code Law of Lagos State 2003, the 2nd Respondent was charged under Section 390 (9). The reason for this is not farfetched, as Section 390 (7) creates the Offence of Stealing of the Property of a Company by its Directors or Officers. It is undisputed from the evidence adduced at trial that the 1st and 3rd Respondents were Directors and Officers of Bank PHB Plc and as such, the Appellant could only have validly charged them under Section 390 (7). On the other hand, Section 390 (7) creates the Offence of Stealing a Property of over N1000. Clearly, that was the proper section under which the Prosecution could have charged the 2nd Respondent. Going by the Express Provisions of Section 390 (7) and (9) of the Criminal Code Law of Lagos State 2003, it would have been incompetent of the Prosecution to charge all three Respondents under the same Provision.
Resolution of Issue 1
“Statement of the Offence in 26th Count
Stealing punishable under Section 390 (7) of the Lagos Criminal Code Law of Lagos State 2003.
Particulars of Offence
That you Francis Atuche (M) whilst being the Managing Director of Bank PHB Plc. and UgoAnyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November 2007 and April 2008 within the Jurisdiction of this Honourable Court did commit an Illegal Act of Stealing the sum of N2,868,750,000.00 ((Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) being the Property of Bank PHB Plc by causing same to be fraudulently described as a Loan and converting same for your own use to wit: Using same to purchase 168,750,000 Units of Bank PHB Shares on behalf of AFCO Associates Limited.
Regarding the elements of stealing, it has been considered that:
1. The Monies used to purchase the Shares were Funds belonging to the Bank.
2. The Sums of money fall under the definition of a thing, and is capable of being stolen.
Now, the question was there a fraudulent intention to convert the fund for personal use to purchase Shares?
In dealing with this issue, the learned trial Judge identified the circumstances of stealing to wit:
“But I should add that there are two circumstances of stealing in this Charge. There is the Case of Fraudulent conversion of the sums of money that were ‘described…[loans]’ in Counts 2, 4, 6, 8 and 10 of the Charge, and then there is the case of the conversion of monies fraudulently made out as to be loans used to purchase Shares in the name of the Beneficiary Companies. The latter circumstance is what Counts 11 to 22 and 24 to 27 of the Charge are about. The former deals with the loans granted the five companies whilst the latter scenario concerns the use of purported loaned sums to purchase Shares for the fourteen other Companies (‘the Beneficiary Companies’).”
The duty of the trial Court is to evaluate evidence before it to arrive at a decision. An Appellate Court is duty bound to examine the evidence evaluated by the trial Judge to determine if the findings of the trial Judge were perverse. In the course of carrying out this duty, it will examine the evidence and arrive at a conclusion. The Court is entitled to make deductions and inference from the evidence.
In MUSA VS STATE (2019) LPELR – 46350 SC, the Supreme Court Per DATTIJO MOHAMMED JSC held as follows:
“Evaluation of evidence and the ascription of probative value is the primary duty of the trial Court that saw and assessed the credibility of the witnesses. The Appellate Court that does not enjoy this much advantage cannot, on the basis of the cold facts on record, interfere with the trial Court’s findings of fact unless it finds the findings to be perverse. A Court’s findings are perverse where they are speculative, not being based on any evidence or because the Court had taken into account matters which it ought not to or shut its eyes to the obvious. Because of the Miscarriage of Justice, the occasion perverse findings do not sustain a judgment on Appeal even if the Court of Appeal had upheld it. See also NNADOZIE & ORS VS MBAGWU (2008) LPELR-2055(SC) G.M.O. NWORAH & SONS CO LTD VS AKPUTA (2010) LPELR-1296(SC), ALI VS STATE (2015) LPELR-24711(SC); FRN VS UMEH & ANOR (2019) LPELR-46801(SC).
In this instant appeal, Exhibit P41 is a Shares Application Form for the purchase of 168,750, 000 Units of Bank PHB Shares at the cost of N2,868,750,000.00 ((Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira). Exhibit P97, is an instruction to debit the accounts of Companies that never applied for loans. The Sum of N2, 868, 750, 000.00(Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) was authorized to be debited on the account of Resolution Securities Limited. Exhibit P157 is the Bank Statement of Resolution Securities Limited indicating the transfer of the said N2, 868, 750, 000.00 ((Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) for the payment of the said Shares. Exhibit P158 is a Zenith Bank Cheque of Resolution Securities in the Sum of N2, 868, 750, 000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira).
The 1st Respondent had in the course of trial claimed to have bought the 168,750,000 Units of Shares from the proceeds of his incentives made from the Public Offer. However, there is no evidence supporting the decision on the incentives or entitlement. Section 140 of the Evidence Act provides that the burden of proof lies on the person who has facts that are within his knowledge. In this instant appeal, the 1st Respondent failed to prove with supporting evidence that the purchase of the said Shares was from incentives. However, Exhibit P97 clearly indicates the funds used to purchase the Shares in AFCO Associates Limited emanated from the vault of the Bank as evidenced in the 3rd Respondent’s Email. However, none of the Exhibits tendered by the Appellant indicate that the funds emanated from any of the Five Loan accounts.
It is settled law that suspicion cannot take the place of legal proof. Items of evidence raising suspicion, which put together does have the quality of being corroborative evidence to ground a conviction for a criminal offence.
His Lordship, ONU JSC, in THE STATE VS OGBUBUNJO & ANOR (2001) 2 NWLR (PART 698) PAGE 576 stated as follows:
“All Courts of law are in duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished and the guilty set free. They should act on Evidence and not on hunches; rumours or suspicion so as to ensure that justice in its purest form is administered in the Courts to all and sundry.”
Thus Courts are duty bound to give critical evaluation to all evidences adduced before them.
In STATE VS AJAYI (2016) LPELR – 40663 SC, the Supreme Court held as follows:
“The entire case of the prosecution, in my view was built on suspicion. The law is that suspicion, no matter how strong cannot ground a conviction for a criminal offence. It cannot take the place of legal proof.” See also ABIEKE & ANOR VS THE STATE (1975) LPELR-8042(SC), AJAEGBO VS STATE (2018) LPELR-44531(SC), UDOR VS STATE (2014) LPELR-23064(SC)
In this instant appeal, the Appellant’s case against the Respondents as it relates to Count 26, is based on suspicion and as such the trial Court was right to have discharged the 1st and 3rd Respondents on the grounds that the Appellant failed to prove that the funds originated from the five loan accounts that are the subject matter of the Jurisdiction of the trial Court.
Consequently, this issue is resolved in favour of the Respondents and against the Appellant.
RESOLUTION OF ISSUE 2
Now, the relevant counts under the Amended Information relating solely to the 2nd Respondent are hereby reproduced as follows:
“Statement of Offence – 23rd Count Conspiracy to Commit a Felony to wit: Stealing Contrary to Section 516 and Punishable Under Section 390 (9) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003.
Particulars of Offence:
That you, Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc., Ugo Anyawu (M) whilst being the Chief Financial Officer of Bank PHB Plc., and Elizabeth Atuche (F) between November 2007 and April 2008 within the Jurisdiction of this Court did conspire among yourselves to do unlawful acts, to wit, stealing the Sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) being the Property of Bank PHB Plc., by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited.
Statement of Offence – 25thCount
Stealing Punishable under Section 390 (9) of the Criminal Code Law of Lagos State 2003
Particulars of Offence:
That you Elizabeth Atuche (F) between November 2007 and April 2008 and within the Jurisdiction of this Court, committed an illegal act of Stealing the Sum of N2, 868, 750, 000 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) being the Property of Bank PHB Plc., by fraudulently converting same for your own use to wit: using the same to purchase 168, 750, 000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited.
Statement of Offence – 27th Count
Stealing Punishable under Section 390 (9) of the Criminal Code Law of Lagos State 2003
Particulars of Offence:
That you Elizabeth Atuche (F) between November 2007 and April 2008 within Jurisdiction of this Honourable Court did commit an illegal act of Stealing the Sum N2, 868, 750, 000 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Thousand Naira) being Property of Bank PHB Plc., by Fraudulently converting same for your own use to wit: using same to purchase 168, 750, 000 Units of Bank PHB Shares on behalf of AFCO Associates Limited.”
Now, Section 135 of the Evidence Act 2011, provides that the burden of proving the guilt of an accused person beyond reasonable doubt lies on the Prosecution. Where the Prosecution fails to prove their case beyond reasonable doubt, the accused person is entitled to an acquittal.
The burden of proving a criminal offence beyond reasonable doubt is discharged when the prosecution proves the ingredients of the offence.
The 2nd Respondent was charged with conspiracy to steal the sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) being the Property of Bank PHB Plc., by fraudulently converting the proceeds of several illegal loans for the acquisition of 337, 500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited.
Section 518 of the Criminal Code Law, Lagos State, provides as follows:
“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Nigeria, would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greatest punishment to which a person convicted of the felony in question is liable is less than imprisonment for Seven Years, then to such Lesser Punishment.”
His Lordship, Per Rhodes-Vivour JSC in SMART VS STATE (2016) LPELR – 40728 (SC) stated as follows:
“Now, the essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. It must be noted that a conspiracy is a continuing offence, and other persons may join an existing conspiracy and become parties to it. For example if X approaches Y and asks him to join him and Z in robbing a Bank, when Y agrees he becomes guilty of conspiracy to rob. This highlights the point that it is not necessary for all the parties to a conspiracy to be in contact with each other. What is necessary is that all the parties to the conspiracy have a common purpose communicated to at least one other person to the conspiracy. The agreement between the parties must be proved beyond reasonable doubt, and an inference or circumstantial evidence of an agreement would do.” Reference is also made to the Case Authorities of AKINLOLU VS STATE (2017) LPELR-42670(SC), OMOTOLA & ORS VS STATE (2009) LPELR-2663(SC), NDOZIE VS STATE (2016) LPELR-26067(SC), IBOJI VS STATE (2016) LPELR-40009(SC), KAMILU DISU BISI VS THE STATE (2021) ELC 3557 SC; where His Lordship M.U. PETER-ODILI JSC held that Conspiracy is inferred or deduced from the common commission of the Offence by the Accused Person in company of others; IDOWU MAKANJUOLA VS THE STATE (2021) 3549 ELC, SC, RT. HON. ADEYEMI S. IKUFORIJI VS FEDERAL REPUBLIC OF NIGERIA (2018) ELC AT 3420 SC, ATTO MABA VS THE STATE (2020) ELC 3338 SC AT PAGE 1, ANDREW KOYE FEKOLOMOH VS THE STATE (2021) ELC 3483 SC, where His Lordship, SAULAWA JSC held “Invariably, the Offence of Conspiracy does not merely comprise of the intention of two or more persons, but rather, the agreement of two or more persons to commit an unlawful act, or to do a lawful act by unlawful means. Thus so long as a design to commit the offence is predicated upon an intention only, it is not indictable. Contrariwise, however, the moment two or more persons agree to translate it to effect, the very plot amounts to an act in itself. Thus the act of each of the dramatis personae (Parties), promise against actus reus constructum capable of being enforced if lawful, punishable if lawful, punishable if for a criminal object, or for use of criminal means…The profound effect, that the crime of conspiracy does not necessarily lie in perpetrating the act or effecting the purpose for which the conspiracy is designed, but rather in forming of the scheme or consensus ad idem between the parties.”
Thus for an offence of Conspiracy to take place the following elements must be proved:
1. There must be an agreement between two or more persons.
2. The act to be done must be unlawful
3. There must be a common purpose
4. Bare agreement, which may be expressed or implied, is sufficient.
The agreement between the parties must be proven beyond reasonable doubt and could be established by an inference or by circumstantial evidence. The elements of conspiracy must co-exist. The Prosecution must prove all the elements of the offence to be successful. Failure to prove all the elements will be fatal to the case.
Exhibit P183 is the statement of the 2nd Respondent made to the EFCC. The excerpts from the statement are as follows:
“…I cannot specifically remember off head anything more that I have originally stated about the Company right now. Ghazali Yakubu Investment, I cannot specifically remember off head how many accounts I am signatory to. As to AFCO Associate Limited, I know is a Company my husband opened over a long time ago and I am a director of the said Company … I cannot say or tell you specifically that this exactly is what the company do, as to meetings attended. I cannot remember how many Shares I have or have not and I know my husband has been buying Shares for over many years gradually in the name of the company but cannot remember the exact figure you are quoting right now. I know for sure that he bought Bank PHB Shares on ASCO Associates to the amount you are quoting. I cannot precisely remember but I know that he has gradually being building up Shares in that Company.”
The Charge against the 2nd Respondent is premised on the allegation that the 2nd Respondent owns the two Companies who were the alleged beneficiaries of the Bank PHB Shares.
The learned trial Judge had held as follows:
“And so, starting with the 2nd Defendant, the law dictates that I enquire as to her alleged involvement in the offence of a conspiracy as made out in Count 23.
I have just spoken about a “meeting of minds”. In other words, the co-conspirators, even if operating from far-flung places, even if they do not all themselves, had a common intent to fulfill an unwholesome purpose. It may seem that that unwholesome purpose can be inferred from the 2nd Defendant’s act of receiving the proceeds of crime. But in discharging the burden on it, the Prosecution is required to eliminate all reasonable doubt. By the reasoning process of Eliminative Induction, it may well be – and it will be reasonable to think – that with there being, in the end, no evidence that actively and certainly points accusing fingers at her, the 2nd Defendant considered those gains she received to have been from valid, legitimate capital market transactions. I cannot eliminate that possibility, as there is no evidence to show the contrary of it. And because of this, I am obliged by Law to give her the benefit of the doubt. I say so because the 1st Defendant did give evidence without contradiction that he bought Shares of the bank for her. In other words, he may well have derived benefit as a Shareholder from different sources. I cannot tell that because part of the stolen money was traced to Shares bought for companies of which she is a Part Owner, then therefore she must have known she was receiving the proceeds of a crime. Indeed, it is clear that the dividend warrants of the two companies that relate to her, were not received by her personally, such as to put her on reasonable enquiry. It is also clear that they were not paid into bank accounts operated by her.
Beyond the matter of her receiving the proceeds of crime indirectly, there is no evidence that links her to the Shares bought for the two companies concerned (I speak not of evidence that links her to the two companies) such as to prove beyond reasonable doubt that she was part of the plot that was a Conspiracy.
And so, having found that there is nothing that shows that the 2nd Defendant knew of the entire scheme of fraud, and with there being nothing to show that she participated by herself in that scheme over and beyond being named as the owner, or part-owner, of companies used in the perpetration of the crime (indeed, the companies were themselves “used” by the 1st Defendant, acting with the assistance and connivance of the 3rd Defendant), I find that the Case of Conspiracy against her equally does not succeed.”
Now, it may seem that unlawful purpose can be inferred from the 2nd Respondent’s act of receiving the proceeds of the crime. In discharging the Burden of Proof, the Prosecution has to eliminate all reasonable doubt. The 1st Respondent at the trial Court gave uncontroverted evidence that he bought Shares of the Bank for his wife, the 2nd Respondent. In other words, she may have derived benefits as a Shareholder from different sources, but there is no clear evidence that she received the Proceeds directly as the proceeds of the Dividend Warrants, were not paid into Bank Accounts personally operated by her.
Further, from the excerpts of the Statement of the 2nd Respondent above, there is nothing to show that there was an agreement between the 2nd Respondent and any or all of the other Respondents to carry out the unlawful act of stealing the Sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) being the Property of Bank PHB Plc., by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited.
The 2nd Respondent seemed not to be aware of the affairs of Ghazali Yakubu Investment Limited and AFCO Associates Limited. The fact that the 2nd Respondent is a Majority Shareholder and the Director does not automatically mean that she conspired with the 1st and 3rd Respondent to steal the Sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) being the Property of Bank PHB Plc., by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited.
However, it has to be stated that the Companies have not been charged alongside with the Respondents. The law is settled that corporate entities enjoy a separate personality from their promoters and directors.
In NEW RES. INTL LTD VS ORANUSI (2011) 2 NWLR (PART 1230) 102 AT 24 – 125, this Court held as follows:
“Once a Company is incorporated under the relevant laws, it becomes a separate person from the individuals who are its members. It has capacity to enjoy legal rights and is subjected to legal duties, which do not coincide with that of its members.
Such a Company is said to have Legal Personality and is always referred to as an Artificial Person. Consequently, it can sue and be sued in its own name. It may own property in its own right, and its assets, liabilities, rights and obligations are distinct from that of its members.”
In MARINA NOMINEES LIMITED VS FEDERAL BOARD OF INLAND REVENUE (1986) SC ELC 1386 AT 1, the effect of the legal personality of a Limited Liability Company was held by KAZEEM JSC as follows: “When the Memorandum is duly signed and registered…the Subscribers are a Body Corporate “capable forthwith” to use the words of the enactment, “of exercising all the functions of an Incorporated Company”. Those are strong words. The Company attains maturity on its birth. There is no period of minority – no interval of incapacity. I cannot understand how a body corporate thus made capable by statute, can lose its individuality by issuing the bulk of its capital to one person, whether he be a subscriber to the memorandum or not. The Company is at law a different person altogether from the subscribers to the memorandum and, though it may be that after incorporation, the business is precisely the same as it was before, and the same persons are managers, and the same hands receive profits, the company is not in law, the Agent of the subscribers or trustees for them. Nor are the Subscribers as members liable, in any shape or form, except to the extent and in the manner provided by the Act. That is, I think, the declared intention of the enactment. ” His Lordship went on to hold that “It seems to me impossible to dispute that once the company is legally incorporated, it must be treated like any other independent person with its rights and liabilities appropriate to itself, and that the motives of those who took part in the promotion of the Company are absolutely irrelevant in discussing what those rights and liabilities are.”…. A Company must be regarded as a separate entity from any of its Shareholders, no matter how many Shares they may hold, and the Company cannot be an Agent for its Subscribers. It is well settled that the mere fact that a man holds all the Shares in a Company, does not make the business carried on by that Company, his business, nor does it make the Company his Agent for the carrying on of the business.” Reference is made also to the case of SALOMON VS SALOMON & CO (1897) AC 2 KB AT 492 AT 503.
Also, in BUREAU OF PUBLIC ENTERPRISES & ANOR VS BFI GROUP CORPORATION (2022) LPELR-56791(CA), this Court distinguished the personalities of individuals that make up a company, from the company, by stating thus: –
“The Concept of Corporate Personality established since the decision in the celebrated case of Salomon Vs. Salomon and Company Ltd (1897) AC 22, has its foundation written in stone, on the belief that once a Company is incorporated, it becomes a Separate Person from the individuals who are its Members, with capacity to enjoy legal rights and duties distinct from its members. It may own property in its own Right and its assets, liabilities, rights and obligations are distinct from that of its members.”
In this instant appeal, the Juristic Personality of Ghazali Yakubu Investment Limited and AFCO Associates are different from the 2nd Respondent. Assuming but not conceding that the Companies conspired to steal the funds by purchasing Bank PHB Shares, the fact that the 2nd Respondent is a Director and a Majority Shareholder in the Companies, does not automatically mean that she would be culpable for the criminal offence. The Prosecution has to proof beyond Reasonable Doubt that the 2ndRespondent used her position as a Director and a Majority Shareholder to carry out the offence under Count 23 of the Amended Information. It also has to show the steps, overt acts, taken by the 2nd Respondent to carry out the Offence under Count 23. The Prosecution also had to show Guilty Knowledge to establish the Mens Rea for the offences, but failed to do so and counter successfully all her denials of lack of knowledge about the activities of the two companies.
There is no evidence of wrongdoing against either Ghazali Yakubu Investment Limited or AFCO Associates Limited. The Companies are not parties before the Court and there are no allegations of wrong doing against the Companies to warrant any identification of the directing minds of these Companies. Furthermore, there are no Board Resolutions linking the 2nd Respondent with the acquisition of the Shares belonging to Bank PHB. The fact that the 2nd Respondent is a Director and a Shareholder is not enough to hold her culpable for Conspiracy under Count 23.
For the 2nd Respondent to be culpable, there must be a Board Resolution indicating she approved the transactions. Before the Court, there are no Resolutions indicating that the Company was involved in the Conspiracy to Steal under Count 23 of the Amended Information.
Thus the trial Court was right to have discharged and acquitted the 2nd Respondent under Count 23 of the Amended Information.
Now, as regards the Charge of Stealing pursuant to Section 390 (9) of the Criminal Code Law of Lagos State 2003, brought against the 2nd Respondent in respect of Counts 25 and 27, the learned trial Judge stated thus:
“I will now give particular regard to the case of stealing made out against the 2nd Defendant. It is as contained in Counts 25 and 27 of the Charge, and it is in respect of beneficiary Companies Which, from the proven evidence, are partly owned by her. The Companies are Ghazali Yakubu Investment Limited, the subject matter of Count 25, and AFCO Associates Limited, the subject matter of Count 27. Each Count alleges that she stole the sum of N2, 868, 750, 000.00k through those companies and through the means of the same series of transactions that were engineered and implemented by the 1st and 3rd Defendants and other persons used by them.
I consider it to be certain, because of what I had said before, that the first two elements of the offence of stealing stand proved. The thing that was stolen, the respective sums of N2, 868, 750, 000.00k in each count, is something capable of being stolen, and that thing had an owner – the Bank, as the custodian of depositors’ funds placed under its care. In a trust-relationship, the law recognizes that a trustee has proprietary rights over property entrusted to his care. See again, WAHABI ADEJOBI V THE STATE, supra, on this concept as it relates to banking. And so, it is with regard to the Mens Rea of the offence, the matter of a fraudulent intent, that the Court will give critical appraisal with respect to the case against the 2nd Defendant.
No doubt, the 2nd Defendant benefitted from the proceeds of the crime; she had Sums of money paid to her from the stolen money that eventually translated into dividend warrants. In a roundabout way, she was given a Share of the Monies stolen from the bank. I say so because the evidence has come to reveal the fact that money was paid to her from the Claremount Account, and from the part-liquidation of the investment of the monetary value of other dividend warrants, and which investment was done in the name of the company, Land Partners Limited. It is clear, the evidence from the Investigating Officer, PW12, is undisputed, that she owns the controlling interest in Land Partners Limited. But specifically, and beyond the matter of Land Partners, it was because of her undoubted part-ownership of the two companies that form the subject matter of these two Counts – that is, AFCO Associates Limited and Ghazali Yakubu Investment Limited, that she was called upon to answer to the Counts. The case is that she derived benefit from ill-gotten money masqueraded as profit from Shares – illegitimately bought Shares – held in the name of those two Companies.
But I dare say that the fact of her part-ownership of the two companies in question and the fact of her having derived gain from the proceeds of the crime in issue in this case, will not, without more, translate into a guilty mind. It must be proved that she knew about the commission of the offence using those two companies to siphon depositors’ funds out of the bank even if she was not an officer of the bank. That would make her a willing participant even if she were not an active participant.
Now that all has come to be laid bare, I do not see that the Prosecution ultimately succeeded in proving that she knew about the scheme of fraud that led to the use of money stolen from the bank to buy Shares for her companies. Nor does the evidence prove successfully that she participated in that scheme the first place. There is no evidence that shows that she took a decision that two companies in question should serve as vehicles through which Shares in the bank would come to be owned by her in a surreptitious manner. In other words, I now see, after all is said and done, that there is no act of fraud or dishonesty, overt or covert, that has been linked to her. All that is clear is that on paper, she is a Part Owner of the Companies. There is nothing that proves reasonable doubt that she took decisions for the companies, or acted as their directing mind, or otherwise participated in the running of their affairs. There is nothing that tells me in a sufficiently and reasonably satisfactory that she silently but knowingly (hence my use of the word “covert”) endorsed the scheme of fraud perpetrated with the use of those two Companies. I see, instead, that it was the 1st Defendant that made “good” use of them.
We have a saying in law that we hold very dear. That saying, perhaps now upgraded into a Legal Maxim in our own criminal jurisprudence, is that suspicion, however strong, cannot take the place of legal proof’. Those were the time-honoured words of Sir Darnley Alexander, CJN, spoken when delivering the lead judgment of the Supreme Court in the case, IGBOJI ABIEKE & ANOR VS THE STATE [1975] NSCC 404, 408. On account of this, I hold that the Prosecution failed to prove its case of stealing against the Defendant satisfactorily.”
Section 383 of the Criminal Code of Lagos 2003, defines the Offence of Stealing as contained in Counts 25 and 27, specifically brought against the 2nd Respondent as follows:
“1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents ‐ (a) an intent permanently to deprive the owner of the thing of it; (b) (c) (d) (e) (f) an intent permanently to deprive any person who has any special property in the thing of such property; an intent to use the thing as a pledge or security; an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner. The term “special property” includes any charge or lien upon the thing in question, and any right arising from or dependent upon holding possession of the thing in question, whether by the person entitled to such right or by some other person for his benefit. (3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. (4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it, or is otherwise authorized to dispose of the property. (5) When a thing converted has been lost by the owner and found by the person who converts it, the conversion is not deemed to be fraudulent if at the time of the conversion the person taking or converting the thing does not know who is the owner, and believes on reasonable grounds that the owner cannot be discovered. (6) A person shall not be deemed to take a thing unless he moved the thing or causes it to move.”
In SMART VS THE STATE (2016) LPELR – 40728 SC, the Supreme Court Per AKA’AHS JSC stated as follows:
“The elements of stealing consist of taking, converting and fraudulent intention. Section 383(i) Criminal Code Law Vol. Laws of Ondo State 1978 as applicable to Ekiti State provides as follows: – “383(i) A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.” See also AMAH VS FRN (2019) LPELR-46347(SC), OSOBA VS QUEEN (1961) LPELR-25075(SC), AMADI & ORS VS STATE (1993) LPELR-440(SC).
Thus for the Prosecution to successfully prove a case of stealing, the following elements must be proved:
1. The thing must be capable of being stolen
2. The thing must have an owner
3. The person must have fraudulently caused the thing to be converted to his own personal use or for the use of another person.
In this instant case, the two elements of the offence of stealing have been proven. The thing that was stolen was the sum of N2,868,750,000 in each Court is capable of being stolen, and that thing had an owner, the Bank, as the custodian of the Depositors’ funds placed under its care.
With respect to fraudulent intent, the Court will give a critical appraisal in respect of the Respondent. The 2nd Respondent benefitted from the proceeds of the crime; she had sums of money paid to her from the stolen money that were eventually translated to Dividend Warrants. She was given Shares of the monies stolen from the Bank. On the other hand, the case of the Prosecution is that she derived benefit from the ill-gotten money disguised as profits from illegally bought Shares held in the name of the Company.
It has to be stated that the fact that she is a Part Owner of the two companies – Ghazali Yakubu Investment Limited and AFCO Associates Limited and the fact that she gained from the proceeds of the Crime in issue in this case does not automatically translate into a guilty mind. The Prosecution has to prove beyond reasonable doubt that she knew about the commission of the offence using the Companies to siphon the depositors’ funds out of the Bank even if she is not an officer of the Bank. This would have made her a willing participant even if she were not an active participant.
Thus there is no evidence before this Court indicating that she knew about the scheme of fraud that was led to the use of the money stolen from the Bank to buy Shares for the Companies she partially owned. There is also no evidence before this Court indicating that she participated in the scheme of fraud at the first place. Furthermore, there is no evidence showing that she took part in the decision making process of the two Companies in question, in that the companies should serve as vehicles through which Shares in the Bank would come to be owned by her in a surreptitious manner. There were no Board Resolutions signed by her approving the involvement of the two Companies in the transactions. There was also no evidence of fraud, dishonesty, overt or covert that has been linked to the 2nd Respondent. The only evidence before this Court is that she is a part owner of the two Companies. The fact that she was the majority owner of the two Companies as well as a Director in the two Companies is not enough to show that she committed the offence. What needed to be proved beyond reasonable doubt was that she took the decisions as one of the directing minds of the company to perpetrate the offence and the Appellant has failed to do so. Thus the trial Court was right to have discharged and acquitted the 2nd Respondent.
Furthermore, the law is settled that any inference drawn from facts of a case to warrant a conviction must be compelling enough to justify a conviction. It will amount to Misdirection in Law to infer conspiracy and stealing just because the 2nd Respondent was a part owner in the two companies and also a director in the two companies that received the proceeds of the crime.
Thus this issue is resolved in favour of the 2nd Respondent and against the Appellant.
In conclusion, this appeal is found unmeritorious and is hereby dismissed. The judgment of the trial Court discharging the 2nd Respondent on Counts 23, 24, 25 and 27 is hereby affirmed. The judgment of the trial Court discharging the 1st and 3rd Respondents on Count 26 is also hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the leading judgment of my Lord, ADEBUKUNOLA ADEOTI BANJOKO, JCA, just delivered.
I have also perused the records of appeal as well as the brief of argument filed and exchanged by the parties to this appeal.
My Lord has dealt with the issues in this appeal in a lucid manner and I agree entirely with the reasons given as well as the conclusion that the appeal lacks merit.
I abide by the consequential order made in the said leading judgment.
ABUBAKAR SADIQ UMAR, J.C.A.: I have read in advance the ruling of my learned brother, ADEBUKUNOLA ADEOTI BANJOKO, JCA and I agree entirely with the reasoning and the conclusion reached therein.
One of the cruxes of this appeal is whether the trial Court was right in discharging and acquitting the 2nd Respondent of the offences contained in the Counts 23, 25 & 27 of the amended information dated 1st day of June, 2011.
The 2nd Respondent was charged with conspiracy to steal the sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira Only) being the Property of Bank PHB Plc., by fraudulently converting the proceeds of Several Illegal Loans for the acquisition of 337,500,000 Units of Bank PHB Shares on behalf of Ghazali Yakubu Investment Limited and AFCO Associates Limited.
It is trite that conspiracy to commit an offence is usually inferred from proven facts or chains of event that are unbroken which unassailably show consensus between two or more persons to commit a crime. See Jibrin v State (2021) LPELR-56233 (SC), State v Adu (2021) LPELR-56616 (SC). Thus for an offence of Conspiracy to take place the following elements must be proved:
1. There must be an agreement between two or more persons.
2. The act to be done must be unlawful
3. There must be a common purpose.
The Appellant, in the instant appeal has been unable to lead evidence linking the 2nd Respondent with other Respondents in the commission of the crime or show proof of consensus ad idem or common intention between the 2nd respondent and other respondents to commit the offence of stealing.
The Appellant failed to prove that the 2nd Respondent was a staff of Bank PHB or was involved in the grant of any Loan Application to any of the Companies that received the allegedly forged loans. It is also clear on the face of the record before this Court that the 2nd Respondent did not instruct, or mandate the purchase of the Shares of Bank PHB for any of the two Companies mentioned in Counts 23, 25 and 27 to wit: Ghazali Yakubu Investment Limited and AFCO Associates Limited.
It is suffice to say that the mere fact that the 2nd Respondent is the wife of the 1st Respondent is not sufficient to impute or impose guilty mind on her. It might be tempting to assume that in view of the relationship between the 1st and 2nd Respondent and the fact that the 2nd Respondent is a director in the companies, she might be part of the scheme, however, suspicion cannot warrant conviction. See State v Ajayi (2016) LPELR-40663 SC.
For an accused person to be deemed guilty, the offence alleged must be proven beyond reasonable doubt. See Section 135 of the Evidence Act 2011. Where the Prosecution fails to prove their case beyond reasonable doubt, the accused person is entitled to an acquittal.
Therefore, to prove the offence of stealing, the following elements must be proved:
1. The thing must be capable of being stolen.
2. The thing must have an owner.
3. The person must have fraudulently caused the thing to be converted to his own personal use or for the use of another person.
See Adejobi v State (2011) 12 NWLR (Part 1261) 347, Amah v FRN (2019) LPELR-46347(SC).
The Appellant failed to prove this ingredient in fullness against the 2nd Respondent by failing to show beyond reasonable doubt that the 2nd Respondent used her position as a Director and a Majority Shareholder to carry out the offence under Count 23 of the Amended Information. The fact that the 2nd Respondent is a Director and a Shareholder is not sufficient to impose mens rea on her for the offence of Conspiracy under Count 23. I do not need to belabour this point any further as same as being comprehensively treated by my learned brother in the lead judgment.
From the foregoing and in view of the reasoning of my learned brother on other issues raised in this appeal, I see no merit in the Appellant’s case. I too dismiss the appeal.
Appearances:
DR. KEMI PINHETO, (SAN), with him, CHUKWUDI ENEBELI, SODIQ LAWAL, ESQ. and PRAISE NSOKO NKWOR, ESQ. For Appellant(s)
CHIEF WOLE OLANIPEKU, (SAN), PROFFESSOR FIDELIS ODITAH Q. C. (SAN), BODE OLANIPEKUN, (SAN), with, FAITH ADARIGHOFUA, PAUL C. MGBEOMA, JOHNSON AGWU, JAMES ADESULU, CRACELIA HEABE, and SHALOM OKEKE – for 1st and 2nd Respondents
CHIEF CHRIS UCHE, (SAN), SYUVA OGWEMO, (SAN), GORDY UCHE (SAN), with, OLAKUNLE LAWAL, ESQ. AJIBOLA LAWAL AKAPO, FELIX AYENI, CONSTANCE OWOEGBE, and RUTH NWANKWO – for 3rd Respondent For Respondent(s)
