SEGUN OYEKANMI v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12624(CA)
In The Court of Appeal of Nigeria
On Thursday, the 31st day of January, 2019
CA/L/195C/2018
RATIO
CRIMINAL LAW: ELEMENT OF STEALING
“Without doubt, the elements of stealing consist of taking, converting and fraudulent conversion. Respondent’s counsel has rightly argued at paragraph 14.1 of the Respondent’s brief of argument that when the law which create offence requires that a fraudulent intention be proven, failure to establish same would have a devastating effect on the prosecution’s case. This is rightly so, even as the prosecution is required to prove beyond reasonable doubt, where the offence of stealing is involved, the following elements:
1. The ownership of the thing stolen
2. The thing stolen is capable of being stolen
3. The fraudulent or dishonest taking or conversion.
See ADEJOBI & ANOR v STATE (2011) LPELR 97 (SC); AYENI v STATE (2016) LPELR 40105 (SC).” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT
“I wish to reiterate that the standard of proof required here is one beyond reasonable doubt and not beyond all shadow of doubt. The Supreme Court, per PATS-ACHOLONU, JSC in STATE v ONYEUKWU (2004) LPELR 3116 (SC), aptly stated as follows: ‘It must be stated and emphasized that proof beyond all reasonable doubt does not mean or import or connote beyond any degree of certainty. The term strictly means that within the bounds of evidence adduced and staring the Court in the face, no tribunal of justice worth its salt would convict on it having regard to the nature of the evidence led and the law marshalled out in the case. It can be said that evidence in a criminal trial that is susceptible to doubt cannot be said to have attained the height or standard of proof that can be said to be beyond all reasonable doubt. Regardless of what one might think in a given state of affairs in a given case, neither suspicion nor speculation or intuition can be substitute for a proof beyond reasonable doubt. It is a proof that precludes all reasonable inference or assumption except that which it seeks to support and must have the clarity of proof that is readily consistent with the guilt of the person. The expression beyond reasonable doubt should not be susceptible to any ungainly and abstract construction or understanding. A priori, it is a concept found on reason and rational and critical examination of a state of facts and law rather than a fanciful, whimsical or capricious and speculative doubt.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
JUSTICES
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
SEGUN OYEKANMI Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Lagos State, delivered on 20th July, 2017 by OYEFESO, J., (Mrs.), in Suit No: ID/2520C wherein the Appellant, Loben Multipurpose Society Limited and one Ade Bosede (at large), were arraigned on a 3-Count Charge of Conspiracy to steal, Stealing and Issuance of dishonoured cheques. The said offences being contrary to Sections 516 and 390(9) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003, and Section 1(1)(a) of the Dishonoured Cheque (Offences) Act Cap D11, Laws of the Federation. The learned trial judge, at the conclusion of trial, convicted and sentenced the Appellant to five (5) year imprisonment term in respect of the three counts.
The Appellant being dissatisfied with the said judgment took out a Notice of Appeal dated 8th of March, 2018, but filed on 8th of May, 2018. The parties thereafter exchanged their respective Briefs of Argument. Appellant?s brief dated 14th of June, 2018 and filed on 14th of June, 2018, was settled by his counsel, Wale Adesokan SAN, Adepoju S.A, Esq. and Ayodeji Ogunlana Esq., all of Adesokan & Co, in which the Appellant formulated five issues for determination in the appeal as follows:
1. Whether the learned trial judge wrongly rejected the air waybill and Exhibit D1 in evidence. (Grounds 9, 10 and 11)
2. Whether the finding of the learned trial Judge that the PW2 was not a member of 2nd Defendant but merely a Financial Investor was justified by the evidence adduced at the trial. (Ground 3 and 6)
3. Whether the evidence of the transactions between PW2 and the Defendants justified the finding by the lower Court of an intention by the Defendants to permanently deprive PW2 of her funds. (Ground 7)
4. Whether the dishonour of the N10 Million cheque issued in favour of the PW2 ought to form the basis of count three of the information in the light of the evidence that PW2 had received the alternative value for the same by December 2012. (Ground 8)
5. Whether the judgment of the lower Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced. (Grounds 1, 2, 4, 5 and 12)
In the Respondent’s brief of Argument dated 28th of August, 2018, filed 29th of August, 2018 but deemed properly filed on 5th of December, 2018 and settled by I. O. Daramola, O. Adewunmi, A.M Ocholi and S.T Ola, four issues were formulated thus:
1. Whether the lower Court was not right in convicting the Appellant in respect of the offences he was convicted for at the lower Court and whether the prosecution proved its case beyond reasonable doubt. (Grounds 1, 2, 4, 5, 8 and 12)
2. Whether the learned trial judge wrongly rejected the airway bill and exhibit D1 in evidence. (Grounds 9,10 and 11)
3. Whether the finding of the learned trial judge that PW2 was not a member of the 2nd Defendant but merely a Financial Investor was not justified by the evidence adduced at the trial. (Grounds 3 and 6)
4. Whether the evidence of the fraudulent Representations of the Appellant adduced at the lower Court does not justify the findings by the lower Court of an intention by the Defendants to permanently deprive the PW2 of her funds. (Ground 7)
PRELIMINARY OBJECTION
The Respondent’s Brief was however filed together with a Notice of Preliminary Objection challenging the competence of the Appellant’s Notice of appeal as filed. Through the preliminary objection, the Respondent seeks for the order of this Court to strike out the instant Notice of Appeal and the Appellant’s Brief of Argument ‘for being incompetent.’
The grounds upon which the preliminary objection was premised are as follow:
1. The Notice of Appeal dated 21st day of May, 2018 with Appeal No: CA/L/195C/2018 stemmed from a joint appeal dated 28th day of August, 2017 with Appeal No: CA/L/195C/2018 filed and signed by the instant Appellant.
2. That the Notice of Appeal is incurably bad, incompetent and defective.
3. That the Brief of Argument filed by the Appellant is incompetent, inconsequential and defective.
The Respondent argued that a fundamentally defective document like a Notice of Appeal cannot be amended to infuse life into it either by amendment or adjustment. He relied on NWAIGWE v OKERE (2008) 13 NWLR (Pt. 1105) 445 at 474, para. E to submit that only a valid notice of appeal could be amended as a fundamentally defective process is non-existent in the eyes of the law. He urged the Court to strike out the instant notice of appeal. The Respondent’s counsel referred to PETGAS RESOURCES LIMITED v MBANEFO (2018) NWLR (PT 1601) 442 at 450-451 to the effect that the said notice of appeal can neither be amended nor regularised. Counsel also cited Macfoy V. U.A.C. to submit that amendment cannot be made of nonexistent process.
That both the instant appeal and the initial joint notice of appeal filed by the appellant has the same appeal no. CA/L/195C/2018 and that the joint notice of appeal as the instant appeal was signed by the appellant herein in non compliance with the provisions of Order 17 Rule 4 of the Court of Appeal Rules, 2016 in filing his notice of appeal, counsel relied on the Supreme Court decision in UWAZURIKE v AG of the FEDERATION (2007) 8 NWLR (Pt 1035) 1 at pg 13-14 to submit that the Appellant Notice of Appeal fell short of the requirement that each Appellant files separate notice of appeal in a criminal matter, counsel then urged the Court to uphold the Respondent?s preliminary objection.
In the Appellant’s response to the Respondent’s preliminary objection, the learned counsel to the appellant submitted that the Respondent’s preliminary objection was a sheer waste of time, he argued that two (2) separate notices of appeal were filed by the appellant herein as well as the appellant in the sister appeal i.e Loben Investment Cooperative Multipurpose Society Limited, the learned counsel further argued that the Court re-designated the two appeals respectively as APPEAL NO: CA/L/195C/2018 and CA/L/195CA/2018. He submitted that the notice of appeal in the instant appeal is as contained at pages 1-12 of the supplementary record of appeal dated 12th May, 2018.
Learned counsel contended that contrary to the appellant?s assertion, the notices of appeal in both the initial joint appeal and the instant appeal bear no Appeal Number but rather the Suit Number assigned by the Court below, he referred to pages 526-536 of the Record of Appeal. The learned counsel further asserted that this Court assigned the present Appeal Number. Counsel finally submitted that the instant appeal was filed pursuant to leave granted by the Court to that effect. Counsel urged the Court to dismiss the Respondent?s preliminary objection to the appeal and determine the appeal on its merit.
RESOLUTION OF THE PRELIMINARY OBJECTION
I have carefully considered the arguments canvassed by the counsel to the respective parties herein regarding the competence or otherwise of the relevant Notice of Appeal filed by the Appellant in the present appeal, and it is my view that the Respondent’s objection is not well founded. Contrary to the erroneous contention of the Respondent’s counsel, the only relevant Notice of appeal in this appeal is the one dated 11th May, 2018 and found at pages 1 to 12 of the supplementary record of appeal, which was filed consequent upon the leave of Court for extension of time to appeal granted by the Court on 10th May, 2018. The Notice of Appeal was filed solely by the Appellant and not jointly filed and that is the only Notice of Appeal to be countenanced by this Court. It is not defective. The objection is hereby dismissed.
Having resolved the Respondent’s preliminary objection to the appeal in the manner above, I will then proceed to resolve the main appeal on its merit.
Arguing the first issue in the Appellant’s brief, it is the submission of the Appellant’s counsel that the trial judge’s rejection of the Exhibit P36 represented by the waybill on the ground of improper certification amounts to the trial Court visiting the inadequacies of its Registry on the Appellant. Counsel relied on the Supreme Court’s decision in TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC(2011) 17 NWLR (Pt 1276) 240 at 262 paras A-E to submit that the appropriate order to make in such instance is for the trial Court to direct proper certification.
Learned counsel further contended that the said rejection of the document that forms the bedrock of the defence of the appellant is a clear departure from Section 14 and 15 of the Evidence Act, 2011. Counsel also submitted that the subsequent rejection of the said way bill after it has been re-certified and re-tendered in the trial judge holden that the rejected document cannot be so re-certified and re-tendered is not in agreement with the decision of this Court in OKECHUKWU UZOMA v VICTOR ASODIKE (2010) ALL FWLR (Pt 548) 853.
The Appellant’s counsel also contended the trial Court’s rejection of a public document certified by EFCC for the use of the Appellant’s defence on the ground of it being a computer generated evidence without a certificate. Counsel submitted that the trial Court, having been properly supplied with the Supreme Court decision in KUBOR V. DICKSON, (2012) LPELR-SC 369 at pages 48-50. paras F-E., discountenanced the Court holden to the effect that public documents are admissible ONLY by certified true copies. Counsel argued further on the trial Court’s rejection of the said way bill, that it was not the contention of the parties at the trial, that the defendant has the duty to so affix the stamp ‘CERTIFED TRUE COPY’ on the document and was not so held by the lower Court, he relied on BROAD BANK OF NIG LTD V. OLAYIWOLA LAWAL (2005) 3 NWLR (Pt 912) 434 at 457 paras B-C and NNPC v AHAMBA (2009) 10 NWLR (Pt 1149) 266 at 277 to submit that the Court will not penalise a litigant for the mistake of the Court?s registry. He further relied on the Supreme Court’s decision in TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (Supra) per RHODES-VIVOUR, JSC, to submit further that decision of the trial Court rejecting the document for not been properly certified is rather harsh and does more technical justice than a substantial one in violation of the norm of justice delivery.
On the Appellant’s second issue for the determination of the appeal to the effect of the status of the PW in the appellant’s company- LOBEN, counsel relied on OGUNDEPO V. OLUMESAN (2011) 18 NWLR (Pt 1278) 54 at 72 paras D-E on the legal basis for documentary evidence being the hangers to assess the veracity of any oral evidence to submit that Exhibits P34 and P40 clearly showed that PW2 was a member of the company as against the finding of the lower Court that the said PW2 was a financial investor. Counsel reiterated that the lower Court allowed the oral evidence of PW2 to prevail over and above the contents of documentary evidences as evinced in Exhibits P34, P35, P39 and P40, counsel argued that the executed and filed Financial Investment Certificate by the company and its members which include the PW2, was an integral part of the MOUs but was ignored by the trial Court, and that the learned judge also wrongly interpreted the MOUs in isolation.
Counsel further made reference to several findings made by the learned trial Judge, which he argued are speculative, citing ROYAL EXCHANGE ASSURANCE LTD & ORS V. ASWANI ILES INDUSTRIES LTD. (1991) 2 NWLR (Pt 176) 639 at 669 to conclude that relevant documents must not be interpreted in isolation but in con of the totality of the transaction in order to fully appreciate their legal purport and impact.
On the third issue, Appellant?s counsel submitted that the trial judge erred when he held that the prosecution has proved its case beyond reasonable doubt on the offence of stealing in count two of the information, he contended that the Prosecution framed the said charge to suit its purposes despite that evidences adduced at trial contradicted the charge as framed. He averred that N10 Million of the N30 Million allegedly stolen by the appellant were returned at the demand of the PW2 and same was acknowledged by the said PW2 but that the trial Court ignored the acknowledgement. Counsel further averred that the balance of N20 Million was severally rolled over by PW2 for interest and re-investment to which PW3 confirmed the payment to PW2 of up to N23 Million interest on her investment with the Appellant’s company- Loben. Counsel noted that the Prosecution deliberately withheld from the trial Court, relevant documents including those carted away from the Appellant, in order to ground the alleged offence of stealing despite that PW2 who was the complainant admitted that it was a recovery of debt issue. He relied on Section 167 (d), Evidence Act 2011 and the Supreme Court?s decision in OGUDO V. THE STATE (2011) 18 NWLR(Pt 1278) 1 at 33. Paras E-F.
Buttressing further that the alleged offence of stealing was not sustainable at the trial, counsel noted that PW3 referred to the amount due to PW2 as ‘capital and interest’, he cited the Supreme Court’s decision in DIAMOND BANK PLC V. P.I.C. LTD (2009) 18 NWLR (Pt 1172) 67 at 96 paras H-A to submit that interest is only awardable subsequent to prior agreement.
On the Appellant’s fourth issue to the effect of the dishonoured cheque of N10 Million drawn in favour of the PW2, counsel submitted that the dishonoured Cheque envisaged by the provisions of Dishonoured Cheque Act is not one presented in bad faith and for which value the holder had been alternatively paid by the drawer at the holder’s directive, before such cheque is presented. He averred that the said sum had been subsequently asked by the PW2 to be paid into a separate account belonging to PW2 in December 2012, and that various sum of money close to twice the value on the said cheque had been paid as instructed before the PW2 presented the same cheque in February, 2013. He submitted further that the PW2 refused to oblige the Court the statement of the said account in which various payment were made to that effect.
Counsel further submitted that when the cheque was issued by the drawer, the Appellant had reasonable ground for believing and did believed that the cheque would be honoured if presented for payment within the specified period. And also that between July 18, 2012 and February 25, 2013 when the dishonoured cheque was presented, the Appellant had paid close to twice the value on the cheque to PW2. Counsel submitted that PW2 made it difficult or impossible for the Appellant to use the way they know how to generate money from their members thereby frustrating the Appellant’s ability to pay the outstanding balance of PW2. He further submitted that the law require the drawer of the dishonoured cheque to explain to the satisfaction of the Court rather than of the ‘agents of investment and debt recovery.’
Finally, on the fifth issue for determination, the Appellant’s counsel cited Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 135 (1) (2) of the Evidence Act, 2011, to submit that a defendant in criminal case is presumed innocent until his guilt is proved beyond reasonable doubt. Counsel argued that this require proving beyond reasonable doubt, each and every of the ingredients of the alleged offences of stealing and issuance of dishonoured cheque in Counts two and three by the prosecution. Counsel also cited MUSA V. STATE (2014) LPELR 21866-CA; YONGO V. COP (1992) 8 NWLR (Pt 257) 36 at 40 and EKA V. THE STATE (1935) 15 WACA.
In particularising the offence of stealing, counsel cited Section 390, Criminal Law of Lagos State to submit that only the first ingredients of stealing as listed amounts to physical element of stealing, while the others are each, a mental element of the offence. He averred that the trial Court predicated its conviction of the Appellant for stealing on extraneous premises, while the mental elements were not proved at trial. He contended that the conviction ought to be accordingly faulted and set aside by this Court as the premises of misrepresentation and engaging in other business ventures as alleged by the PW2 would not in itself amount to mental elements of the offence. Appellant?s counsel submitted that there was no iota of evidence indicating mental element of intention as the PW2 admitted having collected up to N18 Million as interest on her investment with the Appellant and his company as well as enjoyment of loan facilities advanced to her by the Appellant’s company.
On the trial Court decision that the Appellant diverted PW2’s money into sundry businesses, counsel submitted that the decision only begs the issue as issue of fraud was not in the list addressed, he argued that clauses exist in the MOU that enable Loben goes into all sorts of business and that PW2 once expressed her readiness to partner with the company on such businesses including school business of the company.
Counsel faulted the conviction of the Appellant for stealing as the PW2 never reported or claimed that her money was stolen but issuance of dud cheque, counsel relied on AJAKAIYE V. THE STATE (2015) 5 WRN 64 at 101-102, AYOADE V SPRING BANK PLC (2014) 4 NWLR (Pt 1396) 93 at 128 to submit that Court is precluded from fishing for cases for parties before it. Counsel urged the Court to hold that doubts have been created that Appellant intended fraud.
On the allegation of issuance of Dishonoured Cheque, counsel cited Section 1 (1) Dishonoured Cheque (Offence) Act to submit that the proviso/qualification at Section 1 (3) of the Act ought to form a part of the ingredients of the offence but was omitted by the trial judge to state that the said proviso/qualification as an ingredient. Counsel iterated that the Count three offence as charged was based on the N10 Million cheque as the subject rather than the N20 Million cheque. Counsel contended the decision of the trial Court to the effect that the Appellant ought to know that the account was not funded to accommodate the N10 Million as drawn in favour of PW2, Counsel maintained that the said cheque was so issued as a security upon the MOU and was meant to be presented after a period of six months. He further submitted that the cheque was issued on 18th July, 2012 and was presented by PW2 on 25th February, 2013 after dispute had arose between the parties and has become unnecessary to present the cheque as the Appellant contention with PW2 was that the value of the cheque had actually accrued to PW2 already. Counsel submitted that the decision of the trial Court was unfounded and that the prosecution failed to prove the offence laid in count three beyond reasonable doubt. He urged the Court to so hold.
And finally on the count of conspiracy to steal, counsel submitted that given the definition of conspiracy as stated in ADEKOYA V. STATE (Supra) and OKWUNNA V. THE STATE (2015) 21 WRN 86, and with reference to Counts two and three of stealing and issuance of dishonoured cheque respectively, the Appellant did not do any unlawful act. Counsel argued that consequent upon the knowledge of PW2 of the Appellant and one Abe Abosede as husband and wife, their business transactions still continues to make the allegation of non disclosure inconsequential. On whether The Appellant’s company Loben had existed five years before the execution of the MOU with PW2, counsel submitted that the company had existed earlier than it sought the extant registration with the Lagos State Government, he urged the Court to hold that there was no misrepresentation on the part of the Appellant to this effect.
On the part of the Respondent, as earlier noted, four issues were formulated and argued by the counsel on its behalf. On the conviction of the Appellant for the offence of conspiracy, Respondent’s counsel submitted that the evidence led by the Respondent at the trial irresistibly pointed to the fact that that the Appellant conspired with one Abe Abosede (still at large} using the instrumentality of Loben Investment Co-operative Multi-purpose Society Limited to perpetuate crime against PW2. Counsel averred that PW2 was misled by the duo of the Appellant and the said Abe Abosede to invest her N30 Million in their company with the intention to defraud her, he stated further that the duo failed repeatedly to returned PW2?s money when PW2 sought for the refund of her money, instead they intentionally issue her with various cheques which were never honoured by their bankers for lack of fund.
Counsel submitted that by the community of purpose of the acts of the Appellant and Abe Abosede shows that the Appellant did not have the intention to return the PW?s money. Counsel urged the Court to so hold.
On the offence of stealing, the counsel submitted that the Appellant was convicted for the offence of stealing because the Prosecution successfully proved the ownership the N30Million stolen from PW2. He cited Section 383 (1), (2) (f), (4) and 390 Criminal Code Laws of Lagos State to further submit that the Prosecution proved that the said money was capable of being stolen and same was fraudulently converted by the Appellant. Counsel urged the Court to hold that the money was the property stolen and was capable of being stolen. Still relying on the above stated statutory authority, submitted that stealing could be by taken or conversion and by using the management of his company as a decoy, that the Appellant’s acts were clear case of fraudulent conversion. Arguing further on the alleged fraudulent act of the Appellant, Respondent’s counsel reiterated that issuance of various cheques to PW2 by the Appellant that was later found out to be without requisite funds to the knowledge of the Appellant, indicated that the Appellant did not have the intention to return the money. He further argued that the company was non functional during and after the Appellant took money from PW2 and that the Appellant never did complied with the extant requirement of filing returns. He urged the Court to uphold the judgment of the lower Court.
On the offence of issuance of dishonoured cheques, counsel cited the decision of the Supreme Court in BOLANLE ABEKE V. STATE (2007) 9 NWLR (Pt 1040) 411 and Section 1 (1) of Dishonoured cheque (Offences) Act.
Counsel submitted that elements of the offence were distilled from the Prosecution’s case at the lower Court from the Exhibits tendered. Counsel averred that the Appellant obtained credit for himself through the instrumentality of his company by means of a cheque which was not honoured upon presentation by PW2 due to insufficient fund in the account of the company. Counsel reiterated that the Appellant was convicted upon establishing the ground of offence through the uncontroverted testimony of the Prosecution. Counsel countered the argument of the Appellant’s counsel that the value of the cheque was paid to PW2 in December 2012; he queried further issuance by the Appellant of another set of cheques to the same effect, if actually he had paid as claimed. Counsel submitted that the Appellant’s antics were made more evident in the above noted inconsistencies. He argued that, instead of insisting on PW2’s promise to bring one Dunny International Limited?s bank account, the Appellant ought to tender the statement of his own bank account to prove the alleged transaction which was casually referred to without leading evidence to that effect at the trial, he urged the Court to so hold. Counsel further submitted that the Appellant’s argument at page 14 of his Brief of Argument was completely at variance with the record of proceedings at the lower Court, he also urged the Court to discountenance same.
On the Respondent’s issue two, counsel submitted that the Airway bill was rejected because the said document was not certified and without proper foundation being laid. He relied on DAGGASH V BULAMA (2004) ALL FWLR (PT 212) 1666 C.A and averred that foundation must be laid as a condition precedent to admitting photocopy of any document in evidence. He urged the Court to so hold. Counsel further submitted that Appellant’s counsel’s averment that since a photocopy of the waybill was attached to a process filed at the trial Court, such has attracted a status of a public document and therefore need not be certified was a grossly misconceived position of the law. He urged the Court to so hold.
Counsel further relied on Section 102 and 103 of the Evidence Act, 2011 to submit that the waybill was a private document and cannot metamorphose into a public document, and that the said document did not form part of any Court’s record, it therefore cannot be returned to the trial Court?s registry for re-certification. He reiterated that Appellant’s failure to lay necessary extant foundation dealt a fatal blow to his case, he urged the Court to so hold. Also relying on WASSAH V. KARA (2015) 44 NWLR (Pt 1199) 374 @ 395- 396. paras G-H, counsel submitted that a document tendered and marked rejected cannot be re-tendered in the same case. It was also the Respondent’s counsel submission that documentary evidence prevails over and above oral evidence in event of conflict between the two. He urged the Court to so hold.
On the third issue, counsel relied on Section 132, Evidence Act 2011 and KOKORO-OWO v OGUNBAMBI (1993) 8 NWLR (Pt 313) 627 to submit that the Appellant needs to prove his assertion that PW2 was a member of the Appellant’s company- Loben.
On the issue four bordering on the allegation of fraudulent representation against the Appellant, the Respondent’s learned counsel submitted that it is a settled law that when the law which create an offence requires that a fraudulent intention be proven, failure to establish same would be fatal to the prosecution’s case. He averred that the Prosecution had successfully established same at the trial. He finally submitted that the combined construction of the Appellant’s acts show permanent intention of the Appellant to permanently deprive PW2 of her money. He urged the Court to uphold the judgment of the lower Court and dismiss the Appeal of the Appellant.
RESOLUTION
Having had the benefit of reading through the issues formulated, arguments canvassed and authorities relied upon by the parties, I am of the firm view that this appeal can be aptly determined under a sole issue, to wit, whether the learned trial judge rightly convicted the Appellant for the offence charged?
It will be recalled that the Appellant was charged before the lower Court vide an Information contained in pages 1 to 3 of the record of appeal on a three-count charge of conspiracy to steal, stealing issuance of dishonoured cheque; and the law is well settled beyond the citing of judicial authorities, having regard to the constitutional presumption of innocence that it is the burden of the prosecution to prove the guilt of an accused person beyond reasonable doubt, and not that of an accused to establish his innocence.
I wish to reiterate that the standard of proof required here is one beyond reasonable doubt and not beyond all shadow of doubt. The Supreme Court, per PATS-ACHOLONU, JSC in STATE v ONYEUKWU (2004) LPELR ? 3116 (SC), aptly stated as follows: ‘It must be stated and emphasized that proof beyond all reasonable doubt does not mean or import or connote beyond any degree of certainty. The term strictly means that within the bounds of evidence adduced and staring the Court in the face, no tribunal of justice worth its salt would convict on it having regard to the nature of the evidence led and the law marshalled out in the case. It can be said that evidence in a criminal trial that is susceptible to doubt cannot be said to have attained the height or standard of proof that can be said to be beyond all reasonable doubt. Regardless of what one might think in a given state of affairs in a given case, neither suspicion nor speculation or intuition can be substitute for a proof beyond reasonable doubt. It is a proof that precludes all reasonable inference or assumption except that which it seeks to support and must have the clarity of proof that is readily consistent with the guilt of the person. The expression beyond reasonable doubt should not be susceptible to any ungainly and abstract construction or understanding. A priori, it is a concept found on reason and rational and critical examination of a state of facts and law rather than a fanciful, whimsical or capricious and speculative doubt.’
See also POPOOLA v STATE (2018) LPELR – 43853 (SC) wherein the Supreme Court, per RHODES-VIVOUR, JSC referred to the explanation given by Lord Denning in MILLER v MINISTER OF PENSIONS (1947) 1 ALL ER 372 thus:
‘All crimes must be proved beyond reasonable doubt as provided by Section 135 of Evidence Act. Indeed Lord Denning explained proof beyond reasonable doubt in Miller v. Minister of Pensions (1947) 1 ALL ER p. 372, and this explanation was adopted by this Court in Lori & Anor v. State (1979-1981) 12 NSCC p.269 His Lordship said: ?Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect community if it admitted of fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence, of course it is possible, but not in the least probable? the case is proved, beyond reasonable doubt but nothing short of that will suffice.’
In this case, the Respondent had called four (witnesses) including the complainant as PW2 and also tendered several documentary exhibits in proof of its case whereas the Appellant testified for himself as DW and also tendered several exhibits to establish his defence. At the end of the trial, the trial Court found the Appellant guilty on the three (3) count charge and he was sentenced accordingly. See NWATURUOCHA v STATE [2011] 6 NWLR (PT 1242) 170; SMART v STATE (2016) LPELR ? 40827 (SC); DAIRO v STATE (2017) LPELR 43724 (SC).
Naturally, an appellate Court will not readily interfere or disturb the findings of a trial Court unless the findings are perverse and not supported by credible evidence and have occasioned miscarriage of justice. See EBEINWE v STATE (2011) LPELR ? 985 (SC); ADEBESIN v STATE (2014) LPELR 22694 (SC).
In respect of the first count of stealing, the learned trial judge found at pages 514 to 519 of the record of appeal thus:
‘There is therefore no doubt to my mind that ownership of N30 million was vested in PW2. That fact is uncontroverted. She rolled over her investment a few times and eventually made a demand for part of her money (N5 million) to enable her perform a contract she had obtained.
There is no controversy that the thing alleged to have been stolen, the N30 million was capable of being stolen. The essential qualities of goods capable of being stolen are that they must be inanimate and moveable. In this case, we are talking about money, which satisfies these criteria.
Did the Defendants fraudulently convert the money to their own use and they intend to permanently deprive PW2 of the use and enjoyment of her money?
So long as the Defendants only had to pay interest on the money given to them by PW2, transactions went on smoothly. Problems started when PW2 demanded for some of her money, N5 million precisely, to enable her execute a contract she had obtained. Instead of paying her money, the Defendants offered her loan saying her money was not due. She refused initially asking why she should take a loan when she had money with them. The answer was that her money was not yet due and that it would be difficult to retrieve the money from the market women they had given loans to. She was given Exhibit P34 called a Financial Member’s Loan Application form to fill and sign dated 10th October 2011, the N5 million with interest on due date. This happened twice or thrice. She would ask for her money, they would offer her a loan.
PW2 testified that she later discovered that the 1st Defendant and Abe Abosede who she had been dealing with were husband and wife, she asked the 1st Defendant’s wife who vehemently denied it, she asked her account officer to investigate and he came back later and confirmed that they were indeed married. PW2 testified that she felt betrayed as she dealt with the Defendants and Abe Abosede based on her Christian faith. She found out that the money had been diverted into electronics, they had an eatery, they had a school, diesel business and bought landed properties. She saw all this as a breach of trust and demanded for the refund of her money. DW in his extra judicial statement made to the EFCC operatives wrote therein (Exhibit P47H) stated that the money invested by PW2 was used for booking loans to various people who he could not name. As the money revolved (sic) and the business of loans was proving difficult, he thought of venturing into oil and gas business, which up to N16 million was involved. He was supposed to have gotten back the money by December, 2012 but all his efforts proved abortive because the man he dealt with ran away!…
Were the Defendants dishonest? As stated earlier PW2 testified that she felt betrayed as DW and Abe Abosede never disclosed to her that they were husband and wife. Furthermore a look at the MOUs, Exhibits P23 and P24, in the recital the Defendants state:
‘The Cooperative Society has recorded about five years of successful experience in cooperative society service, finance management and investment in various sectors.’
However, the evidence before the Court shows that the Cooperative was registered on 13th January 2011 ? their application to be registered was made on 4th January 2010 by 25 members of the Cooperative. So to represent that they had been in business for 5 successful years was untrue to say the least…
It is clear to me that the transaction from the very onset lacked transparency and integrity. PW2 admitted that she did not do her due diligence before going into business with the Defendants but dealt with them based on her fact and theirs she testified that DW held himself out to be a Pastor as she felt she was dealing with straightforward people. She trusted them wholeheartedly. The 2nd Defendant was the directing mind of the 2nd Defendant who ought to have known better as a Chartered Accountant and acted with integrity, which was sadly lacking here.
Further still in the statements made by DW – Exhibits P47 A – P47 L, statements made under caution to the operatives of the EFCC no where do the defendants deny receiving money from PW2 ? In fact DW states clearly that what the (sic) are owing PW2 is N42 million (Exhibit P47E). It is clear that the Defendants have appropriated PW2?s money to their own use.
In the light of the overwhelming evidence reviewed this Court is satisfied that the Prosecution has proved beyond reasonable doubt the offence in Count 2 of the Information and I so hold.
Without doubt, the elements of stealing consist of taking, converting and fraudulent conversion. Respondent’s counsel has rightly argued at paragraph 14.1 of the Respondent’s brief of argument that when the law which create offence requires that a fraudulent intention be proven, failure to establish same would have a devastating effect on the prosecution’s case. This is rightly so, even as the prosecution is required to prove beyond reasonable doubt, where the offence of stealing is involved, the following elements:
1. The ownership of the thing stolen
2. The thing stolen is capable of being stolen
3. The fraudulent or dishonest taking or conversion.
See ADEJOBI & ANOR v STATE (2011) LPELR 97 (SC); AYENI v STATE (2016) LPELR 40105 (SC).
In the present appeal, there is no dispute as to ownership of the money alleged to have been stolen or the alleged money is capable of being stolen. Rather, the point of dispute is whether the Appellant had fraudulently or dishonestly taken or converted the money. Looking at the findings made by the learned trial judge, vis-a-vis the testimonies of the witnesses on record, particularly PW2, the complainant herein, I am unable to disagree with the learned trial judge that the Prosecution had not proved beyond reasonable doubt, that the Appellant had fraudulently or dishonestly taken the complainant’s money. From what I can gather from the evidence on record, upon which the case of the prosecution rests and upon which the Appellant was convicted of the offence of conspiracy to steal and stealing, the facts clearly shows that the learned trial judge drew the right conclusion particularly as it relates to establishing the fact that the Appellant fraudulently or dishonestly took or converted the money alleged to his own use or to the use of any other person.
Although the relationship between the Appellant through the 2nd Defendant and the complainant began as a business relationship, which was apparently laden with elements of dishonesty on the part of the Appellant and 2nd Defendant, the intention to fraudulently deprive the complainant of her money materialised when they failed to break the complainant?s investment as directed by her. It is also on record that the Appellant and the 2nd Defendant did not disclose that himself and one Abe Abosede, directing the affairs of the 2nd Defendant are in fact husband and wife. Additionally, is the fact that the 2nd Defendant Company, Loben Investment had not been operating as a registered society for five years contrary to what was stated in the MOUs ‘Exhibits P23 & P24’ executed with PW2. More so, the evidence on record also shows that the Appellant through the 2nd Defendant converted the money to execute other business purposes, including the setting up of fuel station, restaurant amongst others, thereby diverting the Complainant’s money for what it was not intended for, hence their inability to account for the money. This, in my view, evidences manifest intention by the Appellant and others to deprive the Complainant of her money.
The second count the Appellant is facing relates to conspiracy to steal. Generally, conspiracy is an agreement between two or more persons to carry out an unlawful act. It is a matter deduced from certain criminal acts of the parties, done in pursuance of an apparent criminal purpose in common between them. See AKINLOLU v STATE (2017) LPELR 42670 (SC); OSETOLA & ANOR v STATE (2012) LPELR 9348 (SC); AGUGUA v STATE (2017) LPELR 42021 (SC).
On conspiracy to steal, the learned trial judge found at page 519 of the record of appeal thus:
‘The facts of the case and the evidence before the Court show quite clearly that PW2 invested N30 million in the 2nd Defendant (Exhibits P23 ? P25). The facts and evidence highlighted above show that the Defendants collected the funds, could not pay back as and when the investment was terminated and issued bounced cheques to PW2 for N20 million, which he knew could not be presented for payment because of CBN regulations and one of N10 million which was dishonoured upon presentation. The 1st Defendant and his wife fraudulently hid the fact that they were husband and wife, which could have affected PW2’s decision on whether or not to invest with the Defendants. They also falsely represented to PW2 that they had been in business for 5 years when in fact they only started barely a year before (Exhibits P23 and P24). I have no doubt that the 1st Defendant did not act independently. He acted with his wife, now at large and the 2nd Defendant. I am satisfied that the Prosecution has proved conspiracy beyond reasonable doubt and I so hold.’
In this case, the evidence on record indicates that Appellant acted in concert with his wife, one Ade Bosede (who is now at large) in fraudulently converting the Appellant’s money through the vehicle of the 2nd Defendant, Loben Investment. Criminal conspiracy to steal between the accused persons can be deduced by their conduct which evidences intention to permanently deprive the complainant her money even after she had repeatedly made a request to break and liquidate her investment. As righty stated by the learned trial judge, the evidence on record shows that the Appellant ‘did not act independently, but acted with his wife, now at large and the 2nd Defendant.’ I must say that the evidence before the Court is able to establish the allegation of conspiracy to steal and stealing against the Appellant.
In relation to the third count of issuance of dishonoured cheque, at pages 520 to 521 of the record of appeal, the learned trial judge held as follows:
‘In the instant case it is not in doubt that PW2 invested a total of N30 million with the Defendants subject to an agreement that the principal and interest would be repaid at maturity. It is not in doubt that the 1st Defendant was the President and directing mind of the 2nd Defendant. He and his wife were the signatories to the 2nd Defendant’s accounts – Exhibit P3 and P3A. From the evidence before the Court there is no doubt that the Defendants issued 2 cheques – one for N20 million and the other for N10 million to Pw2. DW by his own evidence, in his extra-judicial statement (Exhibit P47 D) stated:
‘The cheque we are talking about are two categories: (1) Cheque issued normally as part of requirement of MOU. To this we have cheque of FCMB value N20m and one Sterling Bank cheque value N10m. For you to know they are not meant for presentation is that maximum cheques as at that time is N5 million for third party. Here N20m and N10m are issue (sic) this shows that they are formality.’
The N10 million cheque was dated 17/1/2013 was presented for payment on 25/2/2013 (Exhibit P 42E, P430) and was returned and marked DAR. DAR stands for Drawer’s Attention Required and connotes non-availability of funds in customer’s bank account – the connotation to a 3rd party is that there is no fund or no sufficient funds in the account to accommodate the dishonoured cheque – OCEANIC SECURITIES INTERNATIONAL v BALOGUN (2013) All FWLR (Pt. 677) 633. A look at Exhibit P42X, the Statement of account of the 2nd Defendant with Sterling Bank, the said cheque was returned 25/2/2013. At the time the cheque was presented the 2nd Defendant had a debit balance of N2,226,964.40 in its account. Clearly there was funds in its account to accommodate the N10 million cheque.
The 1st Defendant made heavy weather about a letter he wrote to PW2 asking her not present the cheque. PW2 maintained that she never received the letter. By the time however that her lawyer received the letter, the cheque had already been presented.
I am able from the testimony of PW2, DW, Exhibits P3, P3A, P47D, P42E and P430 to make a finding that the cheque for N10 million dated 17/1/2013 presented for payment less than 3 months from that date on 25/2/2013 was dishonoured for lack of funds in the drawer’s bank account to accommodate the value of the cheque. The 1st Defendant, President of the 2nd Defendant is an ICAN Chartered Accountant and he must be deemed to have known the balance on the 2nd Defendant’s account at any point in time. From his testimony in Exhibit P47D, his expectation was that the cheques he issued could not be presented for clearing as the CBN had a regulation limiting cheques that could be presented for clearing as the CBN had a regulation limiting cheques that could be presented to N5 million or so he thought. I must find that the Prosecution has been able to prove the 3rd Count of Issuance of a dishonoured cheque and I so hold….
The above conclusion is manifestly unimpeachable and I am unable to disturb same. Section 1(1) of the Dishonoured Cheques Offences Act makes it an offence for any person to obtain credit for himself by means of a cheque that when presented for payment not later than three months after the date on the cheque, it is dishonoured on the ground that no funds were standing to the credit of the drawer of the cheque. The evidence on record shows quite clearly and I agree in this regard with the learned trial judge that it is the expectation of the Appellant that the cheques issued to the complainant, particularly the one for N10 million, was issued with the expectation that it would not be honoured, having regard to the fact that the lack of funds in the 2nd Defendant’s account to accommodate the value of the cheque. I need not say more. The Respondent in my respectful view has been able to prove the three counts alleged against the Appellant and I so hold.
Before I close the curtain on this appeal, it is necessary to address the issue raised by the Appellant regarding the rejection of the Airway Bill, Exhibit P36 and re-tendered as Exhibit D3 as well as Exhibit D1, a computer generated evidence, emanating from the EFCC. With respect to the airway bill, it is not in dispute that the document sought to be tendered is a photocopy and it is my view that unless proper foundation is laid, which was not done in the instant case, same cannot be admitted by the Court. I agree with the Respondent’s counsel that the Appellant’s counsel submission that there was no need to lay foundation for the document merely because the same photocopy was once attached to a process at the High Court, hence a public document, is not well founded. The document remains a private document as it does not come within the definition of public document as defined by Section 102 of the Evidence Act. I share similar sentiments with the Respondent’s counsel that if the Court process, which the photocopy of the airway bill forms part of, was properly certified and tendered as public document, then the Court can admit same under Section 102 and it will not be necessary for any foundation to be laid. Therefore, the learned trial judge rightly rejected Exhibit P36 which was retendered as Exhibit D3.
With respect to Exhibit D1, which parties agree is a computer generated evidence, but it is the contention of the Appellant’s counsel that since the Exhibit was served on the Appellant as part of proof of evidence from the record of the EFCC, and was certified by the EFCC, it cannot be regarded as a computer generated evidence to warrant compliance with Section 84 of the Evidence Act. With respect, I am unable to accede to the contention urged on us by the Appellant’s counsel on this issue. The provision of Section 84(2) of the Evidence Act, 2011 is mandatory and allows for no discretion. It is mandatory for a party who seeks to tender a computer generated evidence to comply with the conditions stipulated in Section 84(2) and this was not done in the instant case. It is of no moment that the document is a public document and was certified as such; in so far as it is a computer generated evidence, the provision of the Act must be complied. Granted that the document emanated from the EFCC, it is incumbent on the Appellant who seeks to tender and rely on Exhibit D1, to have requested that the provision of Section 84(2) was complied with by the author, the EFCC. It is my candid view that the learned trial judge rightly rejected Exhibit D1 as evidence in this case.
In the end, I find no merit in this appeal, it is hereby dismissed. The end result is that the Appellant is guilty of the offence of conspiracy to steal; stealing and issuance of a dud cheque contrary to Section 1(1) of the Dishonoured Cheques Offences Act. The conviction and sentence of the Appellant in respect of the three counts is hereby affirmed.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother Abimbola Obaseki-Adejumo JCA, granted me the privilege of reading in advance the leading judgment just delivered.
I agree and adopt the judgment as my own. I have nothing extra to add. .
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein. I adopt the Judgment as mine with nothing further to add.
Appearances:
Wale Adesokan, SAN with him, Tola KutemiFor Appellant(s)
S. T. Ola (PDS)For Respondent(s)
