FRIDAY DAVID v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12062(CA)
In The Court of Appeal of Nigeria
On Friday, the 26th day of January, 2018
CA/L/449c/2017
RATIO
COURT AND PROCEDURE: WHETHER A GROUND OF APPEAL CAN STEM FROM THE JUDGMENT
“Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. D.A Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (pt. 126) 299; F.M.B.N v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claims was initiated.
(c) From the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) From commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what ought not to do or even in overdoing the act complained of. The ideal thing is to have a pronouncement from the Court from which the appeal emanates …In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so… In any of the above situations a ground of appeal may be validly filed…'” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
EVIDENCE; WHERE THERE IS A CONTRADICTION IN TESTIMONY
“‘…In essence, the contradiction that would make a Court disbelieve a witness has to be on a material point in the case and what is material however depends on the facts of each case. See Ndukwe vs. The State (2009) 2 SCM 147.
The facts of this case did not reveal any material contradiction.’ The contradiction in testimony which would upturn the decision of a Court has to be material contradictions and not minor discrepancies. See EGESIMBA vs. ONUZURUIKE (2002) 9 SCNJ 46, EZEMBA vs. IBENEME (2004) 7 SCNJ 136, OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 281, OGIDI vs. THE STATE (2002) 9 NWLR (PT. 824) 1 at 23-24 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28. The contradictions highlighted by the Appellant are in respect of whether he accepts payment or issues receipts. In the peculiar circumstances of this matter they are not material especially in the light of the explanation by the Appellant of his actions in Exhibit P32. The lower Court was therefore correct in its holding that there are no material contradictions in the testimony of the prosecution witnesses.” PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
Before Their Lordships
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWUJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
FRIDAY DAVIDAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the decision of the High Court of Lagos State in CHARGE No. ID/15C/2008: FEDERAL REPUBLIC OF NIGERIA V. FRIDAY DAVID delivered on 21st December 2016. The Appellant was arraigned and tried before the lower Court on a one count charge of stealing. At the end of the trial the lower Court held that the charge had been proved beyond reasonable doubt and convicted the Appellant as charged.
The Appellant dissatisfied with the judgment appealed against the same. The judgment of the lower Court is at pages 662-692 of Volume II of the Records, while the Notice of Appeal is at pages 693-706 of Volume II of the Records. The Records of Appeal having been duly complied and transmitted, the parties filed and exchanged briefs of argument. The briefs on which the appeal was argued are:
1. Appellant’s Brief filed on 8th June 2017 but deemed as properly filed on 5th October 2017.
2. Respondent’s Brief filed on 23rd October 2017
3. Appellant’s Reply Brief filed on 7th November 2017.
At the hearing of the appeal, the learned counsel for the parties urged the Court to uphold their respective submissions in the determination of the appeal.
The Appellant formulated three issues of determination as follows:
“i. WHETHER THE ORDER FOR RESTITUTION MADE BY THE LOWER COURT PURSUANT TO SECTION 297 OF THE ADMINISTRATION OF CRIMINAL JUSTICE LAW OF LAGOS STATE 2011 AND THE REFUSAL OF THE LOWER COURT TO HEAR AND DETERMINE AN APPLICATION FOR THE RELEASE OF DOCUMENTS WHICH THE APPELLANT NEEDED FOR THE DEFENCE DID NOT BREACH THE APPELLANT’S RIGHT TO FAIR HEARING AS PROVIDED FOR UNDER SECTION 36 SUBSECTION 8 AND 12 OF THE 1999 CONSTITUTION. (THIS ISSUE IS DISTILLED FROM GROUNDS 1 AND 9 OF THE NOTICE OF APPEAL).
ii. WHETHER HAVING REGARDS TO THE EVIDENCE PRESENTED BY THE RESPONDENT THE LEARNED TRIAL JUDGE WAS RIGHT TO HOLD THAT THE RESPONDENT HAD PROVED ALL THE INGREDIENT OF THE OFFENCE OF STEALING BEYOND REASONABLE DOUBT. (THIS ISSUE IS DISTILLED FROM GROUNDS 2, 3, 4, 6 & 10).
iii. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE DISREGARDED THE MATERIAL CONTRADICTIONS OF PW2, PW5, PW7 AND PW11 AND THEN OMPROPERLY [sic] EVALUATE EXHIBIT P1, P2 AND D3 TO CONVICT THE APPELLANT (THIS ISSUE IS DISTILLED FROM GROUNDS 5 AND 7 OF THE NOTICE OF APPEAL).”
The Respondent equally distilled three issues for determination, namely:
“i. Whether the learned trial Judge was not right in holding that the respondent proved the case of stealing against the appellant beyond reasonable doubt in view of the evidence adduced before the Court. (Distilled from grounds 2, 3, 4, 5, 6, 7, and 10 of the grounds of the Notice of appeal).
ii. Whether the learned trial Judge was right to have ordered the appellant to make restitution to Universal Steels Ltd pursuant to Section 297 of the Administration Criminal Justice Law of Lagos State 2011 when the offence in question was committed in 2005. (Distilled from ground 1, of the Notice of appeal)
iii. Whether the appellant was not given adequate time and facilities to prepare for his defence. (Distilled from ground 9 of the Notice of appeal).”
I find the issues distilled by the Appellant apt and I will be guided by the said issues in resolving this appeal.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
On its first issue, the Appellant submits that by Section 36 (8) and (12) of the 1999 Constitution, a sentence or punishment cannot be imposed for any criminal offence which is heavier than the penalty in force at the time the offence was committed. It was posited that the offence the Appellant was charged with was allegedly committed between July and August 2005, at which time Section 297 of the Administration of Criminal Justice Law on order for restitution was not in force. It was stated that the lower Court by applying the said law which came into force on 8th August 2011, was to give the same retrospective effect, which is prohibited by Section 36 (8) and (12) of the Constitution. The case of GEORGE vs. FRN (2014) 5 NWLR (PT 1399) 1 was referred to.
It was further submitted that the charge alleged ‘intent to defraud’, which is not an offence known to law and does not contravene any written law, such that the charge is null and void for contravening Section 36 (12) of the Constitution. It was argued that since intent to defraud was made an element of the charge, the prosecution must prove the same, irrespective of the provisions of the statute creating the offence charged. The case of GEORGE vs. FRN (supra) was relied upon. It was opined that since ‘intent to defraud’ is not an offence and no penalty is prescribed for it, and the offence of stealing cannot be separated from the particulars of intent to defraud which is unknown to law; the entire charge is a nullity.
It was contended that the lower Court erred by failing to hear and determine the application filed for the Appellant’s former counsel to hand over the case file to the new counsel; that since a Court is enjoined to hear all applications filed before it, the failure by the lower Court to hear the said application infringed the Appellant’s right to fair hearing and nullified the entire proceedings. The cases of ONYEKWULUJE vs. ANIMASHAUN (1996) 3 NWLR (PT. 439) 637, NWOKEDI vs. EGBE (2005) 9 NWLR (PT 930) 293, ORUGBO vs. UNA (2002) 15 NWLR (PT. 792) 175 at 199 and OBODO vs. OLOMU (1987) 3 NWLR (PT 59) 111 among other cases were cited in support.
On the second issue, the Appellant submits that the prosecution has to prove the charge beyond reasonable doubt by the quality of evidence produced, not quantity. The case of UKPE vs. THE STATE (2002) FWLR (PT 103) 435 was called in aid. The ingredients of the offence of stealing as laid down in the cases of AMOSIKO vs. THE STATE (2010) NWLR [sic] (PT 1189) 49 at 52, NWATURUOCHA vs. THE STATE (2011) 6 NWLR (PT 1242) 170 at 174, AKINYEMI vs. THE STATE (1999) 6 NWLR (PT 607) 499, ADEJOBI Vs. The STATE (2011) 12 NWLR (PT 1261) 347 at 377, OSHINYE vs. C.O.P (1960) 5 SC 105 and CHIANUGO vs. THE STATE (2002) 2 NWLR (PT 750) 225 were set out. The testimony of the prosecution witnesses was reviewed and it was posited that the evidence was contradictory and evidently unreliable.
It was submitted that the prosecution did not prove the ownership of what was stolen, as the Appellant’s case was that the money was a loan given to him, especially when all the cheques issued in the name of the complainant company (Universal Steels Ltd) were paid into the company’s account and the Appellant’s duty did not include receiving monies and issuing receipts. It was stated that the prosecution has to prove not only the taking of the movable property but also the intention to fraudulently deprive the owner of the property, which the prosecution failed to prove. The case of BABALOLA vs. THE STATE (1989) 4 NWLR (PT 115) 254 was referred to.
The Appellant’s argument on the third issue is that there were material contradictions in the case of the prosecution as to whether the Appellant collects cash, pays cash into the company’s account and issues receipts for drafts or cash received. It was submitted that in the absence of an explanation of the contradiction in the testimony of the prosecution witnesses, the Court cannot pick and choose which to believe. The cases of ONUBOGU vs. THE STATE (1974) NSCC 358 at 366, ONUCHUKWU vs. THE STATE (1998) NWLR [sic] (PT 547) 576 at 590, AMEH vs. THE STATE (1978) ANLR 187 and IBEH vs. THE STATE (1997) NWLR [sic] (PT 484) 632 at 655 were relied upon.
It was stated that the responsibility for explaining the contradiction is on the prosecution, not the defendant; and that where material contradictions exist, the charge had not been proved beyond reasonable doubt and the defendant must be acquitted. The cases of AKPABIO vs. THE STATE (1994) 7 NWLR (PT 359) 635, KALU vs. THE STATE (1988) 4 NWLR (PT 90) 503 and ARUNA vs. THE STATE (1990) 10 SCNJ were relied upon. The Appellant highlighted the perceived material contradictions in the testimony of the PW5, PW7 and PW11 who testified that the Appellant collected money and issued receipts and the testimony of the PW4 and PW9 who stated that the Appellant was not responsible for issuing receipts.
It was conclusively submitted that the Appellant was a truthful witness and that the prosecution as part of discharging the burden of proof ought to show how the money allegedly collected amounted to the N72 million alleged in the charge.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
On its issue number one, the Respondent submits that the onus on the prosecution is to prove the charge beyond reasonable doubt, not beyond any shadow of doubt. The cases of NSOFOR vs. THE STATE (2004) 18 NWLR (PT 905) 292 at 305, AKINLOLU vs. THE STATE (2015) LPELR – 25986 (SC), IWUNZE vs. FRN (2013) 1 NWLR (PT 1324) 119 and OSUAGWU vs. THE STATE (2013) 15 NWLR (PT 1347) 360 among other cases were cited in support. Proof beyond reasonable doubt, it was stated, is accomplished by proving the ingredients of the offence charged. The case of YONGO vs. COP (1992) 8 NWLR (PT 257) 35 was called in aid.
The ingredients for the offence of stealing were set out and it was contended that the prosecution proved the ingredients. Section 383 of the Criminal Law of Lagos State, 2003 and the cases of OSHINYE vs. COP (supra), CHIANUGO vs. THE STATE (2002) 2 NWLR (PT 750) 325 and ADEJOBI vs. THE STATE (2011) LPELR – 97 (SC) were referred to. It was stated that by Section 382 of the Criminal Law, money is a thing capable of being stolen. The cases of ONWUDIWE vs. FRN (2006) 4 SC (PT II) 70, ADEJOBI vs. THE STATE (supra) and OYEBANJI vs. THE STATE (2015) ALL FWLR (PT 800) 1182 were relied upon. That even though the charge alleged N72 million as the amount stolen, the lower Court found as proved, the stealing of the sum of N40 million and that the finding was not challenged. The cases of SAGOE vs. QUEEN (1963) 2 SCNLR 210, ATANO vs. A-G BENDEL STATE (1988) 1 NSCC 643 and R vs. TYSON 11 WACA 90 were cited in support.
On the ingredient of proof of ownership, it was stated that the property must be proved to be owned by someone, whether known or unknown and that the evidence adduced by the prosecution established the ownership of the stolen money. The case of ADEJOBI vs. THE STATE (supra) was called in aid. Referring to the testimony of PW1-PW9, it was posited that customers of the complainant company who paid for goods with bank drafts were not issued receipts, while those who paid with cash were issued receipts stating that they paid with bank drafts.
It was submitted that the prosecution proved the third ingredient of the dishonest or fraudulent taking by the Appellant. That the Appellant in his extra-judicial statement, Exhibit P32, admitted the fraudulent taking of the company’s funds, which is an admission that he committed the offence. The cases of THE STATE vs. SALAWU (2011) LPELR – 9351 (SC) and ADEBAYO vs. THE STATE (2014) LPELR 22988 (SC) were referred to. It was further submitted that Exhibit P32 is in line with the testimony of PW1, PW3 and PW9 on the Appellant’s admission at the management meeting of the company that he took monies paid by customers for the company’s products and converted to his personal use, an admission that a court can act upon, even though made before the Appellant was charged. The cases of AKINMOJU vs. THE STATE (2000) 6 NWLR (PT 662) 608 and AROGUNDADE vs. THE STATE (2009) 6 NWLR [sic] 165 or (2009) LPELR – 559 (SC) were relied upon. It was opined that the documentary evidence, Exhibits P1 and P2 corroborated the testimony of PW1, PW3 and PW9, making it highly reliable since documentary evidence is the hanger from which to assess oral testimony. The cases of UKEJE vs. UKEJE (2014) ALL FWLR (PT 730) 1323, KIMDEY vs. MILITARY GOVERNOR OF GONGOLA STATE (1988) 2 NWLR (PT 77) 445 and OMOREGBE vs. LAWANI (1980) 3-4 SC 108 were called in aid.
The Respondent contended that the Appellant’s submission that the money was a loan given to him was contrary to the flow of the evidence particularly when the Appellant stated in Exhibit P32 that the money belonged to the company. The case of OBIDIKE vs. THE STATE (2014) LPELR -22590 was cited in support. It was stated that the Appellant did not cross examine PW1, and PW3 on their testimony that the money belonged to the Company, showing the Appellant’s acceptance of the truth of the testimony. The cases of OFORLETE vs. THE STATE (2000) 12 NWLR (PT 681) 415 at 436 and WAZIRI vs. THE STATE (1997) 3 NWLR (PT 496) 689 at 721 were referred to. It was further stated that PW2, PW4-PW8 who paid with drafts were never cross examined on the loan theory and that it was for the Appellant to discharge the evidential burden of establishing the loan issue he introduced. The case of UDO vs. THE STATE (2016) LPELR – 40721 (SC) was relied upon.
It was maintained that Exhibits P1 and P2 were not loan documents but a list of customers of the company who the Appellant diverted the payment they made. It was stated that the retraction by the Appellant of his confessional statement was of no moment once the Court is satisfied of the truth of the contents of the statement. The cases of OLATIDOYE vs. THE STATE (2010) LPELR – 9079 (CA) and AKINLOLU vs. THE STATE (2015) LPELR – 25986 (SC) were cited in support.
The Respondent asserted that the contradictions in the testimony of the witnesses highlighted by the Appellant were not material. That the person that issued the receipt is not material to the allegation that the Appellant stole money. It was stated that the evidence before the Court is that Appellant interfaces with the customers, receives their payment and directs on how the receipt is to be issued. It was said that a minor discrepancy in evidence is not a contradiction.
The cases of IKUEPENIKAN vs. THE STATE (2011) 1 NWLR (PT 1229) 449 and AYO GABRIEL vs. THE STATE (1989) 12 SCNJ 33 were called in aid. That for inconsistency in the testimony to impact negatively on the prosecution case it has to be materially significant. The cases of JOHN vs. THE STATE (2011) 18 NWLR (PT 1278) 353 and THE STATE vs. AZEEZ (2008) 4 SC 188 were referred to.
The Respondent on its issue number two submits that restitution has always been part of our laws. Section 263 of the Criminal Law and the case of OGUNLANA vs. THE STATE (1995) LPELR – 2341 (SC) were relied upon. It was stated that the order for restitution made by the lower Court pursuant to Section 297 of the Administration of Criminal Justice Law is not a punishment. The case of EBUKA vs. THE STATE (2014) LPELR – 23491 (CA) was referred to and it was posited that the Administration of Criminal Justice Law is a procedural law and applies at the time of trial, even if it was not in existence when the offence was committed. The cases of ROSSEK vs. ACB LTD (1993) 8 NWLR (PT 312) 312 at 472 and ADIO vs. THE STATE (1986) LPELR – 184 (SC) or (1986) 3 NWLR (PT 31) 714 were cited in support.
It was opined that the provisions of Section 36 (8) and (12) of the Constitution and the case of GEORGE vs. FRN (supra) were inapplicable because restitution is not punishment and the Appellant was not convicted under the Administration of Criminal Justice Act, but under Section 390 of the Criminal Law.
It is the further submission of the Respondent that fraudulent intent is the mental element of stealing and that the Appellant was wrong to equate ‘intent to defraud’ to an offence. That the case of GEORGE vs. FRN (supra) was distinguishable as the offence charged therein did not require mens rea, but that the mens rea element was included in the charge, so it had to be proved; but that the charge in the instant matter requires mens rea to be included in the charge. That the mens rea of fraudulent intent was included and proved as found by the lower Court at pages 686-690 of the Records.
The Respondent’s argument on its third issue for determination is that the question of failure by the lower Court to consider any pending application was not canvassed at the lower Court and no pronouncement was made on the same. That since the said ground nine of the grounds of appeal was not based on the decision of the lower Court, it was incompetent and must be struck out. The cases of INTERNATIONAL OFFSHORE CONSTRUCTION LTD VS. S.L.N. LTD (2003) 16 NWLR (PT 945) 157 and OBIOZOR vs. NNAMUA (2014) LPELR – 23041 (CA) were called in aid.
Where the Court declines to strike out the said ground, the Respondent submits that the facts do not bear out any breach of fair hearing. It was stated that the Information, documents and statements of witnesses filed were in the Court file and that the Appellant could have easily obtained fresh copies from the Court. It was stated that the Appellant had abandoned his said motion for an order for the former counsel to hand over the case file to his new counsel, as he proceeded with the conduct of the case for over six years after the motion was filed without arguing the same until judgment was delivered. It was opined that the Appellant never complained about inadequacy of facilities for preparation of his defence or inform the Court about the application he filed. That the Appellant always expressed his readiness to continue with the trial and never stated that he had any handicap, thus showing on the facts that the application of the principle of fair hearing is not borne out. The case of MAGAJI vs. NIGERIAN ARMY (2008) 8 NWLR (PT 1039) 338 and ELIAS vs. FRN (2016) LPELR – 40797 (CA) were referred to.
It was contended that a party who fails to move a motion filed in the course of proceedings up to delivery of judgment is deemed to have abandoned the motion. The cases of ESOHO vs. ASUQUO (2007) ALL FWLR (PT 359) 1355 at 1370 and IBATOR vs. BARAKURO (2007) 9 NWLR (PT 1040) 475 or (2007) LPELR – 1384 were relied upon. It was conclusively submitted that the fair hearing principle is not available just for the asking as the final written address filed by the Appellant at the lower Court referred to the testimony of witnesses who testified, and exhibits tendered before the new counsel came into matter and therefore the fair hearing principle was not available for the Appellant to use as a repair kit in this matter. The case of KOLO vs. C.O.P (2017) LPELR – 42577 (SC) was cited in support.
APPELLANT’S REPLY ON LAW
In the Reply Brief, the Appellant contends that the lower Court was wrong to have held that the complainant company’s customers collected goods worth N40 million as there was no evidence that the company had goods worth that amount at the material time. It was stated that proof of the offence has to be with a high degree of probability showing that the offence was committed and that it was the Appellant that committed it. The cases of ALABI vs. THE STATE (1993) 7 NWLR (PT 307 511 at 531, MILLER vs. MINISTER OF PENSION (1947) 2 ALL ER 372 and BAKARE vs. THE STATE (1987) 1 NWLR (PT 52) 592 were called in aid.
The Appellant iterated the submissions in the Appellant’s Brief on whether the Appellant received money and issued receipts, and the probability that the monies given to the Appellant were loans, considering that he has a personal relationship with the customers. It was asserted that the prosecution did not prove ownership of the N40 million and that it amounted to a failure to prove the charge. The case of ADEJOBI vs. THE STATE (2011) LPELR 97 SC and CLARK vs. THE STATE (1986) 4 NWLR (PT 35) 81 were referred to. The Appellant maintained that as found by the lower Court, Exhibit P32 is not a confessional statement, and that an admission of guilt with a defence or explanation does not amount to a confession. The case of UWAEKWEGHINYA vs. THE STATE (2005) ALL FWLR (256) 1911 at 1930 was relied upon.
It is the further contention of the Appellant that there was no retraction of statement as the Appellant’s story from the outset and his testimony in Court were consistent that monies were loaned to him. It was therefore submitted that the lower Court was wrong to overrule itself after having held that Exhibit P32 was not a confessional statement, and then holding that it was an admission of guilt. The case of ORJI vs. UGOCHUKWU (2009) 14 NWLR (PT 1161) 207 was cited in support. The Appellant maintained that the finding that Exhibit P32 was not a confessional statement was conclusive and binding and that the Respondent did not challenge the finding. The cases of INEC vs. OSHIOMOLE (2009) 4 NWLR (PT 1132) 611 and JIMOH vs. AKANDE (2009) 5 NWLR (PT 1135) 549 at 585 were called in aid.
On restitution, the Appellant asserted that it was a penalty within the meaning of penalty in Section 371 of the Administration of Criminal Justice Law, which includes compensation, which is what restitution is. Section 36 (8) and (12) of the Constitution, it was posited was applicable. It was opined that the Administration of Criminal Justice Law is not a procedural law simpliciter because it provides for substantive rights and not just procedural rights.
It was finally submitted that a Court has a duty to hear all applications before it on the authority of NALSA & TEAM ASSOCIATES (1991) 8 NWLR (PT 212) 652, AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 413, IROLO vs. UKA (2002) 14 NWLR (PT 786) [sic] and SAMBO vs. OKON (2013) LPELR 20394 CA, and that the refusal of the lower Court to hear the motion even when its attention was called to it breached the Appellant’s right to fair hearing. Page 588A of Volume II of the Records and Page 1 of the Additional Records were referred to.
RESOLUTION
Our adversary criminal justice system is accusatorial. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. The onus of proof is on the prosecution. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is strong as to leave only a remote probability in favour of the defendant, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt. See MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL E.R.372 and BAKARE vs. THE STATE (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 – 13 where Oputa, JSC of (most blessed memory) stated:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –
“The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.”
Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. The lower Court held that the charge against the Appellant was proved beyond reasonable doubt, hence this appeal. What is paramount in this appeal is whether the lower Court arrived at the correct decision.
But, first, let me deal with the Respondents contention that ground nine of the grounds of appeal and the issue distilled therefrom are incompetent as the complaint therein was neither canvassed at, nor pronounced upon by the lower Court. Doubtless, it is hornbook law that the complaints in an appeal must arise from the issues canvassed and decided at nisi prius. The grounds of appeal are not formulated in the abstract. See EGBE vs. ALHAJI (1990) 1 NWLR (PT 128) 546 at 590, OBA vs. EGBERONGBE (1999) 8 NWLR (PT 615) 485 and OKAFOR vs. ABUMOFUANI (2016) LPELR (40299) 1 at 15. A ground of appeal is the error of law or facts alleged as the defect in a judgment on the basis of which it should be set aside. In the words of Muhammad, JSC in AKPAN vs. BOB (2010) 17 NWLR (PT 1223) 421 at 464-465:
“Authorities are agreed on the legal definition of a ground of appeal. It is said to be the error of law or facts alleged by an Appellant as the defect in the judgment appealed against upon which reliance has been placed to set it aside. In other words, it is the reason(s) why the decision is considered wrong by the aggrieved party. See:Oladele v. The State (1991) 1 NWLR (Pt. 170) 708 at 718; Azaatse v. Zegeor (1994) 5 NWLR (pt. 342) 76 at 83; Idika v. Erisi (1988) 2 NWLR (pt.78) 503 at 578.
Although many authorities lay emphasis that a ground of appeal must stem from the of the judgment (ipsissima verba), for instance, in the case of Metal Construction (West Africa) Ltd v. D.A Migliore and Ors. In Re-Miss C. Ogundare (1990) All NLR 142 at 148, (1990) 1 NWLR (pt. 126) 299; F.M.B.N v. NDIC (supra), such decisions in my humble view, by no means limit the scope of a ground of appeal. And, from the general definitions, a ground of appeal, can arise in a number of situations such as the following:
(a) from the of the decision appealed against (ipsissima verba).
(b) from the procedure under which the claims was initiated.
(c) From the procedure under which the decision was rendered or
(d) from other extrinsic factors such as issue of jurisdiction of a Court from which the appeal emanates.
(e) From commissions or omissions by the Court from which an appeal emanates in either refusing to do what it ought to do or doing what ought not to do or even in overdoing the act complained of.
The ideal thing is to have a pronouncement from the Court from which the appeal emanates …In other situations, the Court from which the appeal emanates may not have to make a pronouncement as it may not have had the opportunity to do so… In any of the above situations a ground of appeal may be validly filed….”
It is effulgent from the above dictum of the apex Court that a ground of appeal need not arise from the ipsissima verba of the decision appealed against but can arise from extrinsic factors such as from commissions or omissions by the Court from which an appeal emanates by refusing to do what it ought to do. I will herein set out the chafed ground nine with its particulars. The ground reads:
“GROUND NINE
The learned trial Judge erred in law in finding that the prosecution proved the allegation against the Appellant beyond reasonable doubt and consequently convicted him and sentenced him to terms of imprisonment when in the proceedings resulting in this conviction; he was not given adequate time and facilities for the preparation of his defence.
PARTICULARS OF ERROR
i. The Appellant had a pending application before the trial Court for an order compelling his former counsel to return his case file and documents contained therein meant for his defence which the said counsel refused to return to him;
ii. The trial Court failed to determine the said application one way or the other;
iii. The trial Court ordered the prosecution to make available to the Appellant some documents and to re-call a witness which order the Prosecution failed to fully comply with;
iv. Failure of the prosecution to comply with the said order made against it infringed on the right of the Appellant to fair hearing.
v. Failure of the trial Court to hear and determine the said pending application for the release of vital documents for use in his defence also infringed on the right of the Appellant to fair hearing.”
From the Appellant’s issue number one, which is said to be also crafted from ground nine of the grounds of appeal, the Appellant has restricted its complaint to the alleged refusal of the lower Court to hear the application he filed for return of case file and documents. The complaint in the said ground is in respect of an alleged omission by the lower Court to hear an application pending before it. Even though the ground does not arise from the ipsissima verba of the decision of the lower Court, it is a competent ground as the circumstances of the complaint therein are not such that the lower Court could have made a pronouncement on: AKPAN vs. BOB (supra). I will therefore in the course of this judgment resolve the disceptation raised from the said ground nine.
I have effectively comprehended the evidence on the cold printed records. The salient facts are not convoluted. The case as made out by the prosecution is that the Appellant, who at all material times, was the Sales Manager of Universal Steels Limited, stole funds of the Company to the tune of over N72 million. From the evidence, the Appellant collected cash from the company’s customers for purchase of goods and when receipts were issued, it was indicated that the said customers paid by bank draft. The customers who brought bank drafts to pay for the goods they bought were not issued any receipts. Meanwhile the goods were supplied to all the customers. While the bank drafts were lodged into company’s account, the cash payments were defalcated by the Appellant. When the bubble burst, the Appellant claimed that the monies were loans to him from the company’s customers and produced Exhibit P1 showing the total amount involved to be in excess of N40 million.
Let me hasten to state that though the burden is on the prosecution to prove the offence charged beyond reasonable doubt, and this burden never shifts; the law however remains that the burden of proof as to any particular fact lies on the person who wishes the Court to believe in its existence and where a fact is especially within the knowledge of any person, the burden of proving that fact is upon him. See Sections 136 and 140 of the Evidence Act. The particular fact of the monies having been given to the Appellant as loans was raised by the Appellant and was within his knowledge, so he had the evidential burden of satisfying the lower Court of the existence of that particular fact. The Appellant did not call any of the persons who allegedly gave him the loan to testify and indeed the prosecution witnesses who had paid for the company’s goods by cash denied having any such loan transaction with the Appellant. It is therefore beyond confutation that the monies were not given to the Appellant as loan.
Be that as it may, the pertinent question remains whether the lower Court was correct in its decision that the charge was proved beyond reasonable doubt. The learned counsel on both sides have restated the essential ingredients to be proved in a charge of stealing. These are:
1. That the thing stolen is capable of being stolen
2. The ownership of the thing stolen. 3. The fraudulent taking or conversion
See CHIANUGO vs. THE STATE (supra), TAKIM vs. THE STATE (2014) LPELR (22667) 1 (CA) and ONWUDIWE vs. FRN (supra).
The thing alleged to have been stolen is money. There can be no disputation that money is a thing capable of being stolen. The Appellant has however contended that the ownership of the money and the fraudulent taking were not proved beyond reasonable doubt. In holding that the ownership of the money was proved beyond reasonable doubt the lower Court, inter alia, relied on the Appellant’s extra-judicial statement, Exhibit P32. Hear the lower Court at pages 584-585 of the Records:
“So how did the defendant convert the drafts issued in the name of Universal Steels”
The defendant provided the clue in his statement exhibit P32. He stated-
”When the customers bring the cash that I intend to make use of, I don’t inform the cashier about it. If it was a bank draft that I wanted to exchange with cash I would write the name of the customer at the back of the draft before I give it to the company cashier…”
This statement shows that the company had a cashier but the customers were dealing with the defendant.
The evidence I believe is that the company owned the money allegedly stolen not the customers as strenuously argued by defence counsel. The defendant admitted this much in his statement P32 where he said-
”… I collected the money from the customers by cash and by bank drafts in which case I exchanged with cash. The bank drafts was issued in the name of Universal Steels Limited, my employers. It is also true that the cash was meant for Universal Steels Limited which is why I did not deny and did not blame management for being angry with me. I am very sorry and will ensure to pay the company. But I need relative freedom to follow up on the business for which I invested the money …”
The above finding is the product of a proper evaluation of evidence on record. The Appellant has argued that the lower Court was wrong to have made a volte face by relying on the said Exhibit P32 as a confession after having previously held that it was not a confessional statement, more so as it contained explanation and defence.
Now, a confessional statement in criminal law is a statement which admits of the crime. It must admit of the crime both in fact and in law. It must admit of the doing of an act or the making of an omission which constitutes an offence in law. The confession must admit of all the ingredients of the crime or offence confessed:NWOBE vs. THE STATE (2000) 15 WRN 133 at 141. Simply put, the contention of the Appellant is that Exhibit P32 did not admit all the ingredients of the offence confessed. This may well be so, but Exhibit P32 remained a potent weapon available to the prosecution in proof of the ingredient of the offence admitted therein, id est, ownership of the money. I have already stated that the Appellant did not call any of the persons who gave him loan. Furthermore, the contention of the Appellant that it was not proved that the company had goods to the value of N40 million at the material time is a vain attempt to obfuscate issues. The charge against the Appellant was not stealing the goods of the company but the money of the company. The Appellant in Exhibit P32 explained how he carried out the act. The finding of the lower Court that the ownership of the money was proved is unassailable.
In finding that the fraudulent taking of the money was proved, the lower Court reasoned as follows at pages 686-687 of the Records:
“The last ingredient is fraudulent intent which is the mens rea of the offence.
383(2) of the Criminal Code provides-
‘a person who take or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents –
(f) 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.’
Conversion is both a tort and an offence. The definition of stealing in Section 390 of the Criminal Code includes larceny, embezzlement and fraudulent conversion. See Onwudiwe v. FRN (2006) 4 SC (Pt 11) 70 @ 102-103.
The defendant collected money from the customers of the company for his private business. He lied right from the beginning of investigation at Universal Steels that the money was for importation of spare parts and his fictitious partner was in Onitsha. He took the Police on wild goose chose to Onitsha knowing fully well that he was involved in dollar business with people who he later discovered were fraudsters. It is totally immaterial that he was duped of the money. What is material is the intent at the time of taking the money. He intended to use the money for his private business and return it later without the company finding out. Unfortunately the bubble burst.”
The lower Court then concluded as follows on page 688 of the Records:
“The evidence of the prosecution established that the defendant intended to return the money at a later date after the transaction was concluded. The taking of the money was not with the consent of the company. The use of same for private business is not to the knowledge of the owner. This conduct amounts to criminal conversion.”
The Appellant had made the bizarre contention that the Appellant was charged with the offence of “intent to defraud” which is an offence unknown to law. Further that the element of intent to defraud having been included in the charge, the same must be proved. The statement of offence with which the Appellant was charged is as follows:
“Stealing contrary to Section 390 (9) of the Criminal Code Cap C17, Vol. 11, Laws of Lagos State of Nigeria 2003.”
It is limpid from the statement of offence that the Appellant was not charged with “intent to defraud”, but stealing. The particulars of offence then provide the particulars of the stealing the Appellant was charged with, embedding therein the ingredients of the offence. It is in the particulars of offence that “intent to defraud” is incorporated which represents the mens rea or fraudulent taking of the thing stolen which is to be proved. Being an ingredient of the offence of stealing, it was properly incorporated in the Information and duly proved as rightly found by the lower Court. Since the Appellant was not charged with the offence of “intent to defraud” the provisions of Section 36(3) and (12) of the 1999 Constitution as amended are inapplicable. Furthermore, the case of GEORGE vs. FRN (supra) is totally distinguishable as in the peculiar circumstances of this matter the element of the fraudulent taking had to be incorporated in the Information.
On the issue of material contradictions which the Appellant alleged exist in the testimony of the prosecution witnesses the lower Court stated as follows at page 688 of the Records:
“For a contradiction to be fatal to the prosecution’s case, it must go the substance or root of the case and not of a minor nature. In essence, the contradiction that would make a Court disbelieve a witness has to be on a material point in the case and what is material however depends on the facts of each case. See Ndukwe vs. The State (2009) 2 SCM 147.
The facts of this case did not reveal any material contradiction.”
The contradiction in testimony which would upturn the decision of a Court has to be material contradictions and not minor discrepancies. See EGESIMBA vs. ONUZURUIKE (2002) 9 SCNJ 46, EZEMBA vs. IBENEME (2004) 7 SCNJ 136, OWIE vs. IGHIWI (2005) 5 NWLR (PT 917) 184 at 281, OGIDI vs. THE STATE (2002) 9 NWLR (PT. 824) 1 at 23-24 and WACHUKWU vs. OWUNWANNE (2011) LPELR (3466) 1 at 27-28. The contradictions highlighted by the Appellant are in respect of whether he accepts payment or issues receipts. In the peculiar circumstances of this matter they are not material especially in the light of the explanation by the Appellant of his actions in Exhibit P32. The lower Court was therefore correct in its holding that there are no material contradictions in the testimony of the prosecution witnesses.
The Appellant made a foofaraw of the order for restitution made by the lower Court contending that the same was a punishment and that the Administration of Criminal Justice Law pursuant to which the order for restitution was made was not in force when the offence was committed and that applying the same was giving the law a retrospective effect.
The Administration of Criminal Justice Law is the adjectival law governing proceedings in criminal trials. The settled principle of law is that the adjectival law governing proceedings is the rule of procedure in force at the time of the proceedings. The legal position was stated in the following words by Karibi-Whyte, JSC in OWATA vs. ANYIGOR (1993) LPELR (2842) 1 at 13:
“There is a clear distinction between the substantive law applicable, and the rule of law governing practice and procedure. It is similarly well settled that the rule governing practice and procedure is the rule in force at the time of the trial or the application is heard, unless there is a provision to the contrary. This is based on the principle that there is no vested right in any course of procedure. … A litigant only has the right to rely on the procedure prescribed for the time being. Where the procedure is altered, he must proceed according to the altered manner.”
See also ELIAS vs. FRN (2016) LPELR (40797) 1 at 127-128.
As at 21st December 2016 when the lower Court delivered its judgment, the regnant procedural law in criminal matters was the Administration of criminal Justice Law and the lower Court was correct in applying its provisions.
Now is the order for restitution provided for in Section 297 of the Administration of Criminal Justice Law a punishment? The Appellant contends that it is a punishment as it is a penalty and compensation. Section 297 (1) of the Administration of Criminal Justice Law provides as follows:
“Where any person is convicted of having stolen or having received stolen property, the Court convicting him may order that such property or part of it be restored to the person who appears to be the owner, either on payment or without payment of any sum named in such order by the owner to the person in possession of such property or a part of it.”
Restitution is not defined in the Administration Criminal Justice Law, however Section 371 defines penalty as follows:
“‘Penalty’ includes any pecuniary fine, forfeiture, cost or compensation recoverable or payable under an order;”
So penalty is defined as including compensation but not restitution. So compensation is not restitution. Furthermore, the provision on compensation is in Part 20 of the Administration of Criminal Justice Law while Part 21 deals with Restitution. This makes it translucent that Restitution is not the same as compensation.
It seems to me that the essence of the order for restitution is not a punishment, it is rather to ensure social justice and act as a deterrent by ensuring that a criminal is not allowed to enjoy the proceeds of his crime in total disregard to the fate of the victim. Restitution is not a novel provision introduced by the Administration of Criminal Justice Law. It has always been part of our laws. See NWUDE vs. FRN (2015) LPELR (25858) 1 at 38-40, OGUNLANA vs. THE STATE (1995) LPELR (2341) – SC and EBUKA vs. THE STATE (2014) LPELR (23491) 1 at 13-15. Therefore in the diacritical circumstances of this matter, Section 36 (8) and (12) are inapplicable as the order for restitution is not a punishment and being the extant procedural law at the time judgment was delivered, the lower Court was right to have applied the provisions of the Administration of Criminal Justice Law.
As we begin to approach the terminus for this judgment, let me state that having affirmed that the lower Court reached the correct decision when it held that the prosecution proved the offence charged beyond reasonable doubt, the kerfuffle being made by the Appellant of the actual amount involved on the basis of which he hankers after the setting aside of the decision of the lower Court is of no moment. The lower Court at page 690 of Volume II of the Records made a finding based on Exhibits P1, P2, D1 and P32 that the amount the Appellant defalcated was a little over N40 million and not the N72 million stated in the charge.
I need to state that the exhibits relied upon were prepared by the Appellant to show the amount of “loans” he received. The existence of such loans was not established by the evidence, which made it lucent that it was monies paid by customers of Universal Steels Limited that the Appellant converted. It is not fatal that the entire sum of N72 million stated in the charge was not proven as stolen by the Appellant. It suffices that the evidence established that the sum of N40 million was stolen. See ATANO vs. A-G BENDEL STATE (1988) 1 NSCC 643, SAGOE vs. QUEEN (1963) NSCC 233 at 237 and R vs. TYSON 11 WACA 90. The action of the Appellant did not cease to be the offence of stealing because the amount stolen was less than the amount stated on the charge.
I come now to the vexed question of whether the lower Court refused to hear the Appellant’s motion for the return of the case file by Appellant’s former counsel. Festinately, it is not for a Court to insist that a party move a motion he filed. The role of the Court is to provide the atmosphere by sitting to hear counsel argue their matters. Where a counsel does not utilise the atmosphere created by the Court, he cannot be heard to contend that the Court refused to hear his application.
From the records of Court, the new counsel the Appellant retained represented him on 15th April 2010 when the PW7 testified. There is nothing on record as to any impediment or challenge which the counsel had in conducting the matter. The new counsel cross-examined the witness called and from the Records appeared on subsequent dates of 8th November 2010, 2nd March 2011, 15th April 2011 and 4th July 2011 to fully conduct the proceedings without stating that he had any difficulty with the case file. Seventeen months after the new counsel had taken over the conduct of the case the application for the release of the case file by the former counsel was filed.
So after having taken three witnesses, the new counsel came to the realisation that he needed the case file which was with the former counsel. Having filed the said motion on 12th September 2011, the only reference to any pending application were at the proceedings of 23rd November 2011 and 29th February 2012. See pages 588 and 588A of the Records.
Thereafter, from the Records, the counsel made further appearances on 30th May 2012, 18th December 2013, 10th April 2014, 17th December 2014, 25th February 2015 and 27th May 2015, duly conducting the trial and trial within trial. There is nothing on record showing that learned counsel applied to move his motion of 12th September 2011. I iterate that the conduct of the case is that of counsel and not having applied to move the motion he filed, it cannot be said that the Court refused to hear the application. The Appellant having failed to move the Court to hear his motion tacitly abandoned the said motion. See ESOHO vs. ASUQUO (supra) and IBATOR vs. BARAKURO (supra). The gallant efforts of the Appellant to bring in the principles of fair hearing in this matter are unavailing. The lower Court did not refuse or fail to hear the Appellant’s motion so the allegation of breach of fair hearing does not arise.
In this wise, I kowtow to the admonition of the apex Court in ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 23-24. Hear Tobi, JSC of the blessed memory:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also KOLO vs. COP (supra) and BROSSETTE MANUFACTURING LTD vs. M/S OLA ILEMOBOLA LTD (2007) 14 NWLR (PT 1053) 109 at 139.
The Appellant who was not denied his right to fair hearing has missed the mark in his attempt to drag the fair hearing principles into this matter. They have no place whatsoever given the peculiar facts of this matter.
The primary duty of evaluating evidence and ascribing probative value thereto is that of the trial judge, who is a peculiar adjudicator in the sense that he has the unparalleled advantage of hearing the witnesses testify, seeing them and observing their demeanour. Where a trial judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court will not interfere to substitute its own views for the views of the trial Court, unless the findings made by the trial Court are perverse: ONOGWU vs. THE STATE (1995) 6 NWLR (PT 401) 276 and AMADI vs. FRN (2008) 12 SC (PT III) 55. The lower Court did a commendable job of evaluating the evidence and ascribing probative value thereto. This Court cannot interfere.
The concatenation of the totality of the foregoing is that there is no whit or scintilla of merit in this appeal. It therefore fails and it is hereby dismissed. The decision of the lower Court embodying the conviction, the sentence imposed on the Appellant and the order for restitution is hereby affirmed.
TIJJANI ABUBAKAR, J.C.A.: It is not the function of this Court to disturb appropriate and proper findings of facts made by the trial Court particularly where such findings are based on the credibility of witnesses who testified before the trial Court, unless such findings are shown to be perverse or concreted on grave misapprehension of facts, or not supported by evidence see: ODOFIN Vs. AYOOLA (1984) 11 SC 72.
My learned Brother UGOCHUKWU ANTHONY OGAKWU, JCA after dissecting the issues in this appeal came to the conclusion that it would not be appropriate to tinker with the decision of the lower Court, this is in accord with the settled position of the law, just by way of support to the elaborate judgment written by my learned Brother, where there is unquestionable evaluation of evidence by the trial Court, the Appellate Court is enjoined to resist the temptation of interfering with such findings. the Supreme Court of Nigeria in DARLINGTON EZE Vs. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-42097, held as follows and I quote:
“An appellate Court will not ordinarily interfere with the findings of facts except where it is clear that they are perverse or not supported by evidence or not arrived at as result of a proper exercise of judicial discretion or the trial Court has not made a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it has drawn wrong conclusions from accepted credible evidence or has taken an erroneous view of the evidence adduced before it or where they were reached as a result of a wrong application of some principle of substantive law or procedure Ude & Ors Vs. Chimbo & Ors (1998) 12 NWLR (Pt. 577) 169 SC. So in the absence of compelling evidence indicating erroneousappraisal of facts and erroneous conclusions, an appellate Court must show utmost restraint and reject any temptation to interfere with well-considered findings made by the trial Court.”
For the above reason and the more lucid and elaborate reasons set out in the lead Judgment join my learned Brother in dismissing the appeal and affirming the decision of the lower Court.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the opportunity of reading in draft the reasons for the judgment read by my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree with the succinct reasoning and conclusion reached therein and adopt same as mine.
There is nothing more to add as the views expressed by my learned brother represent the correct position of the law and represent my opinion in this appeal.
I too dismiss the appeal and abide by the consequential orders made.
Appearances:
A. T. Omaghomi, Esq.For Appellant(s)
E. E. Iheanacho, Esq., with him, G. G. Chia-Yakua, Esq.For Respondent(s)
