BHADMUS YHISA ABIODUN v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12653(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of February, 2019
CA/L/1125C/2018
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“The fundamental nature of the right to fair hearing is indubitable, involves granting an Accused Person the opportunity to be heard, adequate facilities for his defence and generally connotes the conduct of a trial in accordance with all applicable legal rules in such a manner that a reasonable man who witnesses the proceedings would be of the opinion that the trial was conducted fairly. In line with the above, the Supreme Court in the case of OGUNSANYA V. THE STATE (2011) LPELR-2349(SC), (P.40, paras. B-E), per Fabiyi JSC, held thus: It is basic that an accused person standing trial on a criminal charge should be accorded a fair hearing during his trial. A fair hearing must involve a fair trial. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. See: Mohammed v. Kano Native Authority (1968) 1 All NLR 424 at 428. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. See: Ariori v. Elemo (1983) 1 SCNLR.
See: AUDU v. FRN (2013) LPELR-19897(SC); and OKA v. STATE (2018) LPELR-43914(CA).” PER JAMILU YAMMAMA TUKUR, J.C.A.
CRIMINAL LAW: STATEMENT OF THE CO-ACCUSED
“The law on the statement of a co-accused is clear and to the effect that, the statement of a co-accused person before taking the stand is worthless and not binding on a co-accused person, except the statement was adopted by the co-accused person. Furthermore, even where co-accused testifies in Court against the accused, such testimony must be treated with caution. See: AJAEGBO v. STATE (2018) LPELR-44531(SC); HASSAN v. STATE (2016) LPELR-42554(SC); and UDOM v. STATE(2016) LPELR-41176(CA).”PER JAMILU YAMMAMA TUKUR, 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
BHADMUS YHISA ABIODUN – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
JAMILU YAMMAMA TUKUR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Lagos State in Charge No. ID/335C/2011, delivered by Honourable Justice Atinuke Ipaye on the 16th day of May, 2017, wherein the Court convicted the Appellant of conspiracy to steal, and stealing.
The relevant facts are that the Respondent acting on a petition filed against the Appellant by Vanguard Media Limited, brought an Amended Information dated 10th January, 2014, before the lower Court, with 8 counts charging the Appellant with offences consisting of: one count of Conspiracy to steal contrary to Section 516 of the Criminal Code Law of Lagos, 2003; three counts of Stealing contrary to Section 390(7) of the Criminal Code Law of Lagos, 2003; and four counts of Forgery contrary to Section 467(2)(i) of the Criminal Code Law of Lagos, 2003. At the conclusion of trial, the learned trial Judge found the Appellant guilty of Conspiracy to steal as charged in count one; and stealing as charged in count 2, 3 and 4, but found him not guilty with regards to forgery as charged in count 5-9.
He consequently sentenced the Appellant to 7 years imprisonment on count 1 pursuant to Section 516 of the Criminal Code Law of Lagos, 2003 and 7 years imprisonment on count 2, 3, and 4 pursuant to Section 390(7) of the Criminal Code Law of Lagos, 2003. The sentence was to run for 14 years.
Dissatisfied with the above, the Appellant appealed to this Court vide a Notice of Appeal dated 1st June, 2018.
The Appellants Brief of Argument settled by Vincent Ikwunne Nwana Esq., of Vincent Nwana & Co., is dated and filed on 9th October, 2018.
Appellants counsel formulated three issues for determination to wit:
1. Whether by virtue of Economic and Financial Crimes Commission Act 2004 the Respondent has the power and locus standi to prosecute and the Court below has jurisdiction to try offences of conspiracy, stealing and forgery exclusively reserved for the state and the police to prosecute under the EFCC Act (Ground 1)
2. Whether the judgment of the Court below of 16th May, 2017, as delivered by the Honourable Justice O. Atinuke Ipaye is grossly against the weight of evidence arising from wrongful evaluation of evidence and lack of fair hearing. (Ground 2)
3.Whether in passing cumulative and compound sentence of 14 years for an offence that carry maximum sentence of 7 years the learned trial judge of the Court below assuming but not conceding that the appellant was rightly convicted took cognizance and correctly interpreted Sections 153 and 315 of the Administration of criminal Justice Act 2015 the Interpretation Act and the powers of the Court not to exceed the maximum sentence as provided by law.
There is no Respondent Brief before this Court and I adopt the issues distilled by the Appellant in determining the appeal.
ISSUE ONE:
WHETHER BY VIRTUE OF ECONOMIC AND FINANCIAL CRIMES COMMISSION ACT 2004, THE RESPONDENT HAS THE POWER AND LOCUS STANDI TO PROSECUTE AND THE COURT BELOW HAS JURISDICTION TO TRY OFFENCES OF CONSPIRACY, STEALING AND FORGERY EXCLUSIVELY RESERVED FOR THE STATE AND THE POLICE TO PROSECUTE UNDER THE EFCC ACT (GROUND 1).
Learned counsel for the Appellant argued that it was wrong for the trial Court to assume jurisdiction over the offences of conspiracy to steal, stealing and forgery under Sections 516 and 390(7) of the Criminal Code Law Cap C17 Col 2, Law of Lagos State of Nigeria, 2003, because those offences are not statutorily provided for under the Economic and Financial Crimes Commission (Establishment) Act 2004, and as such are ultravires the prosecution powers of the EFCC.
He relied on Sections 6, 7, 13, 14, 18 and 46 of the Economic and Financial Crimes Commission (Establishment) Act 2004.
Learned counsel also argued that the crimes of forgery, conspiracy to steal and stealing as provided under the criminal law of Lagos state are under the exclusive purview of the Police and have nothing to do with the class of crimes which the EFCC was established to prosecute.
He relied on Section 214(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended); Section 4 of the Police Act; and Federal Republic of Nigeria v. Igbinedion (2014) ALL FWLR (Pt. 734) P.101 at 112-113.
RESOLUTION
The Economic and Financial Crimes Commission (Establishment) Act, 2004, particularly in Sections 6 and 7 thereof, contain copious provisions as to the extent and scope of the Commissions powers to investigate and prosecute every form of financial crime in Nigeria, including those governed by the criminal and penal code.
This was why the Supreme Court in the case of Alao v. FRN (2018) LPELR-43905(SC) held that the EFCC has power to investigate and prosecute all offences connected with or relating to economic and financial crimes.
This Court in MUSTAPHA v. FRN (2017) LPELR-43131(CA) (Pp. 87-93, Paras. B-B) per Garba, JCA, stated the law succinctly thus:
“Now, there is no dispute and doubt in this appeal as what the functions and special powers of the EFCC are under the provisions of Section 6 and 7 of the EFCC Act, for they were stated and restated in the cases of Ahmed vs. Federal Republic of Nigeria (supra), Nyame vs. Federal Republic of Nigeria (2010) 7 NWLR (1193) 344, (2010) E.C.L.R. 240 and more recently, in Kalu vs. FRN (2016) 9 NWLR (1516) 1. From these decisions and more, generally, the EFCC is empowered to investigate and prosecute all economic and financial crimes as defined in Section 46 of the EFCC Act and created and punished under other penal statutes, including those enacted by the States of the Federation. In the case of Nyame vs. FRN (supra) the Apex Court made the position clearly when it stated that: – “
It… both the State and Federal Government (sic) has the joint responsibility to fight corruption and abuse of office which has been the bane of our society. Section 7(m) of the EFCC Act, 2004 empowers the EFCC to enforce any law or regulation relating to economic and financial crimes including the Criminal Code and Penal Code.”
See: AUDU v. FRN (2018) LPELR-45642(CA); and NWEKE v. FRN (2016) LPELR-41525(CA).
From the foregoing, it is clear that Appellants arguments under this issue has no leg to stand on and must of necessity fail. There is no doubt that stealing or conspiring to steal money has to do with fraudulent financial activities, which fall firmly within the purview of the EFCC.
This issue is accordingly resolved against the Appellant.
ISSUE TWO:
WHETHER THE JUDGMENT OF THE COURT BELOW OF 16TH MAY, 2017, AS DELIVERED BY THE HONOURABLE JUSTICE O. ATINUKE IPAYE IS GROSSLY AGAINST THE WEIGHT OF EVIDENCE ARISING FROM WRONGFUL EVALUATION OF EVIDENCE AND LACK OF FAIR HEARING. (GROUND 2)
Learned counsel for the Appellant argued that the decision of the trial Court is against the weight of evidence arising from a wrongful evaluation of evidence and disregard for the rule of fair hearing.
He cited the case of Balogun v. Egba Onikolobo Community Bank (Ngr) Ltd (2007) ALL FWLR (Pt.382) P.1952 Ratio 11 at P.1959 and P.1977 paras E-F.
Counsel sought to substantiate the above by first arguing that Exhibits 3 and 4 were wrongly relied on by the Court as they are the product of an investigative panel, set up to investigate the activities of the Appellant, which did not conform to the principle of fair hearing by failing to give the Appellant the opportunity to be heard before the panel reached its verdict. He submitted further that the PW2, the head of the investigative panel, confirmed the veracity of the foregoing by expressly testifying that he did not have any interaction with the Appellant before the Exhibits were prepared.
He relied onStanley Ndubisi Duru v. Bisi Ladipo & Anor (2016) All FWLR Pt.840 Ratio 2 at p.1348 at 1351; and United Cement Company of Nigeria Limited & 2 Ors v. Mrs Charity Mbeh Isidor & 2 Ors (2016) All FWLR Pt.844 Ratio 5 at P.2137 at 2142.
Learned counsel also argued that Exhibit 11, which is a statement made by a co-accused ought not to have been relied on by the lower Court, as the statement did not meet the legal criteria that would justify the lower Courts reliance on same.
He submitted that the trial Court was wrong to have compulsorily closed the Appellants case, without making an order mandating Vanguard Media Ltd, the CAC and the FIRS to produce documents in their possession, which the Appellant had subpoenaed and which he needed for the defence of his case.
He relied on the cases of Bassey v. State (1993) 7 NWLR (Pt. 306) P.469; Titilayo v. State (1998) 2 NWLR (Pt.537) P.235; and Fatilewa v. State (2008) All FWLR (Pt.426) P.1856 Ratio 1 at page 1857 Ratio 1.
Learned counsel then submitted that on a whole, a proper evaluation of the evidence at trial would reveal that the Prosecution did not establish the offences charged beyond reasonable doubt, that what they proved was that one Ogbole Samuel paid a certain amount of money to the Appellants account, but did not prove that the money was a product of stealing or conspiracy to steal. He further submitted that the explanation proferred by the Appellant to the effect that the money is the proceeds of sale of the Appellant’s farm produce, which was transported with Vanguard Media Limited vehicles and that the documents needed to prove the explanation is in the Appellant’s car impounded by the nominal Complainant, ought to be relied on to discharge and acquit the Appellant as same was not controverted or discredited even under cross examination.
He relied on the cases of Nzeribe v. Dave Engineering Co. Ltd (1994) 8 NWLR (Pt. 361) pg 124; Akinrinlola v. State (2017) All FWLR (Pt.877) pg 208; and Sa’idu v. State (2016) All FWLR (Pt.849) P.899.
RESOLUTION
Appellants first grouse with the decision of the trial Court under this issue is based on fair hearing and is two pronged; the first being the alleged fact that Exhibits 3 and 4 were the result of a process that was bereft of fair hearing; and secondly that the trial Court breached the Appellants right to fair hearing by prematurely closing Appellant’s case after failing to order the production of documents needed and subpoenaed by the Appellant.
The fundamental nature of the right to fair hearing is indubitable, involves granting an Accused Person the opportunity to be heard, adequate facilities for his defence and generally connotes the conduct of a trial in accordance with all applicable legal rules in such a manner that a reasonable man who witnesses the proceedings would be of the opinion that the trial was conducted fairly.
In line with the above, the Supreme Court in the case of OGUNSANYA V. THE STATE (2011) LPELR-2349(SC), (P.40, paras. B-E), per Fabiyi JSC, held thus:
“It is basic that an accused person standing trial on a criminal charge should be accorded a fair hearing during his trial. A fair hearing must involve a fair trial. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. See: Mohammed v. Kano Native Authority (1968) 1 All NLR 424 at 428. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties to the cause. See: Ariori v. Elemo (1983) 1 SCNLR.
See: AUDU v. FRN (2013) LPELR-19897(SC); and OKA v. STATE (2018) LPELR-43914(CA).
It should be clearly stated that the fair hearing as a technical principle of law does not apply to every aspect of life, but is compulsory for bodies who perform judicial or quasi-judicial functions, especially when penal decision may result from such function. A calm look at the facts of this appeal and Exhibits 3 and 4 reveals that they are reports of an investigation carried out by the PW2, in order to ascertain the state of things with regards to the account of the Appellant’s former employers, the nominal complainant (Vanguard Media Limited). It was not a process that requires the input of the Appellant, it is a preliminary process that led to his accusation.
With regards to the second aspect of Appellant’s complaint of breach of fair hearing, the law is very much tilted to the side of ensuring that an Accused has every facility for his defence, same must be done in a reasonable manner.
See: SHEMA & ORS v. FRN (2018) LPELR-43723(SC); SHARON PROPERTIES LTD v. PAUL B. NIGERIA PLC (2014) LPELR-23728(CA); and ADEKUNLE v. STATE(2018) LPELR-45386(CA).
With regards to this issue when it came up at trial, the learned trial Judge at pages 727-728, gave solid reasons for refusing to further grant the Appellant allowance to procure the documents he claimed he needed. The proceedings are reproduce thus:
TODAY WEDNESDAY THE 23RD DAY OF MARCH 2016
BEFORE HON. JUSTICE O.A. IPAYE (MRS)
SUIT No: ID/335C/2011
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA
AND
BHADMUS YHISA-ABIODUN & ORS
Defendent present
2nd Defendant absent
Appearances: M.S. Owede for the prosecution
K.U. for the Defendant
A.E. Lawal for the surety proceedings
Defendant Counsel: I apply for an Order of Court directing the FIRS AND CAC to release documents upon our application it will help us accelerate the collection of the documents.
Prosecution Learned counsel for this same application at the last adjourned, they have made no progress. The oral application as covering procedure freedom of information Act lays down the procedure to follow.
COURT: RULING
On 24/7/15 learned counsel for the Defendant called her last witness and applied to close her case save to tender certain documents which were applied for pursuant to a subpoena document team.
On 17/02/16, some of the subpoena documents were tendered from the Bar as Exh2(a) (d).
The Defendant it appears is having some difficulty in obtaining the rest of the documents aforesaid.
The business of the Court is to provide a level playing ground to ensure that both parties are afforded the same opportunity to present their case. This Court has adjourned hearing on 17/02/16 and 23/3/16 to ensure the Defendant present her documents. The Defendant has failed to make good use of the litigation cannot go on forever.
Accordingly, the defendant case be and is hereby closed. The Defendant has 21 days within which to file final address. Whilst the prosecution upon service takes 21 days. The Defendant has a right to file on points of law to be exercised not later than 7 days thereafter.
The Defendant in the 7-week period is at liberty to conclude arrangements for the tender of his proposed documents at the next adjourned date fixed for 09/05/16 for adoption of final address.
SIGNED
O. A. IPAYE (MRS)
JUDGE
23/03/16
I cannot find fault with the reasoning and finding therein and hold that same does not constitute a breach of the Appellants right to fair hearing. A look at the case as a whole reveal that the trial Court conducted its proceedings in a fair manner.
The law on the statement of a co-accused is clear and to the effect that, the statement of a co-accused person before taking the stand is worthless and not binding on a co-accused person, except the statement was adopted by the co-accused person. Furthermore, even where co-accused testifies in Court against the accused, such testimony must be treated with caution.
See: AJAEGBO v. STATE (2018) LPELR-44531(SC); HASSAN v. STATE (2016) LPELR-42554(SC); and UDOM v. STATE(2016) LPELR-41176(CA).
The challenge with Appellants attack on the judgment of the Court on the basis of Exhibit 11 is that the Court barely placed reliance on same. The treatment of Exhibit 11 is found at page 835 of the records, where after stating the correct principles of law, the trial Court disregarded the Co-Accuseds statements.
A look at the judgment of the lower Court reveals that the basis for Appellants conviction has to do with the overwhelming evidence against him and not the statement of his co-accused.
The burden of establishing the guilt of an Accused person is indeed placed firmly on the prosecution, and the standard is proof beyond reasonable doubt. There was cogent, unequivocal and verifiable proof at trial, both oral and documentary to the effect that Samuel Ogbole, now at large was the circulation manager of the nominal complainants Owerri out station between the relevant period of the commission of the offence charged; that there was non lodgment/under lodgment of proceeds of the sale of newspapers under the control and supervision of Samuel Ogbele; that Samuel Ogbele falsified Wema Bank tellers he sent to the Head Office; that Ogbele paid into the Appellants account, a consistent amount of money during the period under consideration, an amount which for all intents and purposes was paid to secure the continued cooperation and participation of the Appellant in the highly profitable theft of company funds.
The Respondent indeed established the ingredients of the offences the Appellant was convicted of and the purported defence brought by the Appellant has no leg to stand on.
With regards to the above, the trial Court at page 836, 837 of the records held thus:
A Trial Court is under an obligation or duty to consider all the defenses possible or available to an accused person on the facts on record. The Court is expected to evaluate any defence put forward by a defendant in criminal proceedings merely on the balance of probabilities. See: Asaya v. The State (1991) 3 NWLR (Pt.180) at 442; Nwuzoke v. The State (1988) 1 NWLR (Pt. 72) at 529; and Adebayo Idowu v. The State (2011) LPELR-3597(CA). In the instant case one would have expected the Defendant who is a highly qualified accountant to have placed some documentary evidence before the Court to substantiate the fact that he operates a fish farm which is highly successful it has penetrated the Eastern market in particular Owerri and its environs and is responsible for the high turnover and funds paid into his personal account by the Vanguard Media Limited circulation manager in Owerri.”
I agree with the findings of the learned trial judge with respect to the defence put forward by the Appellant and I find no basis to disturb same.
This issue is therefore resolved against the Appellant.
ISSUE THREE:
WHETHER IN PASSING CUMULATIVE AND COMPOUND SENTENCE OF 14 YEARS FOR AN OFFENCE THAT CARRY MAXIMUM SENTENCE OF 7 YEARS, THE LEARNED TRIAL JUDGE OF THE COURT BELOW ASSUMING BUT NOT CONCEDING THAT THE APPELLANT WAS RIGHTLY CONVICTED, TOOK COGNIZANCE AND CORRECTLY INTERPRETED SECTIONS 153 AND 315 OF THE ADMINISTRATION OF CRIMINAL JUSTICE ACT 2015 THE INTERPRETATION ACT AND THE POWERS OF THE COURT NOT TO EXCEED THE MAXIMUM SENTENCE AS PROVIDED BY LAW.
Learned counsel for the Appellant argued that it was wrong for the Appellant to be charged on three different charge nos. ID/28C/2011; ID/344C/2011; and ID/335C/2011, as they all border on offences committed by a person in the course of the same transaction having regard to proximity of time and place.
He relied on Section 153 of the Administration of Criminal Justice Law 2015.
Learned counsel also argued that the trial Court was wrong to have ordered that the sentence should commence from 21st October, 2013, because the Appellant was in prison custody before 17th April, 2012, which ought to be taken into consideration in computing and determining when a sentence begins to run.
He relied on Section 315 of the Administration of Criminal Justice Law 2015.
Counsel submitted that the trial Court failed to comply with the mandatory provisions of the Administration of Criminal Justice Law 2015 in computing the sentence, was wrong to have handed a compound sentence of 14 years and that the sentences were excessive and ought to be reduced.
He relied on Sections 390(7) and 516 of the Criminal Code Law of Lagos State; Section 17(1) and (3) of the Interpretation Act; Eke v. Federal Republic of Nigeria (2013) All FWLR (Pt. 702) P. 1748 at pg 1756 R. 11; Udoye v. The State (1976) NMLR 197; Olanipekun v. The State (1979) 3 LRN 204 at 207; Afolabi v. State (2013) All FWLR (Pt.702) P.1690, pg 1695-1696; Lion Bank (Nig) Plc v. Amaikom (2008) All FWLR (Pt. 417) P. 85 at pg 88 R. 3; Adeomi v. Governor Oyo State (2003) FWLR (Pt. 149) pg 1444 at 1452 R. 16.
RESOLUTION
The law with regards to sentencing is that sentencing is a matter within the discretion of the trial Court provided the discretion is exercised judicially and judiciously within the law. An appellate Court consequently will not interfere with the exercise of discretion by the lower Court unless the sentence imposed is manifestly excessive in the circumstances or wrong in principle. Thus, where a sentence passed by the lower Court is in accordance with the applicable laws, an appellate Court will be estopped from interfering with such sentence.
See: DAVID v. CP, PLATEAU STATE COMMAND (2018) LPELR-44911(SC); ABIODUN v. FRN (2018) LPELR-43838(SC); and ONAH v. FRN(2017) LPELR-43535(CA).
The question that must be answered in determining the propriety of the sentence handed down, is whether the sentence passed by the lower Court for each offence is within the limit imposed by law.
Section 390(7) of the Criminal Code Law of Lagos provides thus:
If the offender is a director or officer of a corporation or company, and the thing stolen is the property of the corporation or company, he is liable to imprisonment for seven years. Section 516 of the Criminal Code Law of Lagos also provides seven years imprisonment for conspiracy in these circumstances.
In the circumstances, I find no basis in disturbing the exercise of the discretion by the learned trial Judge.
This issue is also resolved in favour of the Respondent.
The appeal is without merit and same is dismissed. The conviction and sentence of the Appellant is affirmed.
TIJJANI ABUBAKAR, J.C.A.: I read the leading Judgment prepared and rendered by my learned brother Jamilu Yammama Tukur, JCA; I am in agreement with the reasoning and conclusion, I adopt the Judgment as my own, I have nothing extra to add.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother JAMILU YAMMAMA TUKUR, JCA. I agree entirely with his reasoning and conclusion that the appeal is devoid of merit. I also dismiss the appeal and abide with the consequential orders made in the lead judgment.
Appearances:
Amos Igwe For Appellant(s)
For Respondent(s)
