ABIDEMI v. FGN
(2022)LCN/15953(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, March 25, 2022
CA/IB/117C/2020
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
RAUF SAHEED ABIDEMI APPELANT(S)
And
FEDERAL GOVERNMENT OF NIGERIA RESPONDENT(S)
RATIO
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The trial in issue here was a criminal trial and the burden of proof is settled by law and is beyond the need to cite any authority, the burden is on the Respondent herein as stipulated by Section 131 of the Evidence Act, 2011 and it does not shift except the evidential burden, see MUSA V. STATE (2019) LPELR-46350(SC) wherein the apex Court held thusly:
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel is right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).” Per MUHAMMAD, J.S.C
It is also settled that for every allegation of crime, the law would have listed essential ingredients which are necessary for its proof. The term essential ingredient was defined in the case of ONAGORUWA V THE STATE (1993) 7 NWLR (Pt. 303) 49 as follows:
“An element without which an offence cannot be sustained in law. It is an inevitable, indispensable and important element of the offence.” PER NIMPAR, J.C.A.
THE ESSENTIAL INGREDIENTS OF THE OFFENCE OF STEALING
The essential ingredients of stealing were stated in a number of cases; they are:
i. The ownership of the thing stolen.
ii. That the thing stolen is capable of being stolen.
iii. That the thing was fraudulently taken or fraudulently converted by the person accused.
iv. That the accused person has the intention of permanently depriving the true owner of the thing stolen.
See the case of CHYFRANK NIG V. FRN (2019) LPELR-46401(SC), AYENI V. STATE (2016) LPELR-40105(SC) and AJIBOYE V. FRN (2018) LPELR-44468(SC).
The prosecution is known to have three different means it can rely on to prove any allegation of crime labeled against a person, the law identified the methods in the case of AKINSUWA V. STATE (2019) LPELR-47621(SC) as follows:
“… it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are (a) Through evidence of eye witness or witnesses (b) Through voluntary confessional statement of the accused or accused persons, and (c) Through circumstantial evidence See Agboola v The State (2013) LPELR 20652 (SC).” Per SANUSI, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT A CONFESSIONAL STATEMENT IS SUFFICIENT TO CONVICT AN ACCUSED PERSON
It is settled law that an offence can be established by a confessional statement alone which has been tested and proved, see BASSEY V. STATE (2019) LPELR-46910(SC) and STATE V. SA’IDU (2019) LPELR-47397 (SC) wherein the apex Court held thusly:
“… A confessional statement, where voluntarily made, is the best evidence that the accused committed the offence and the trial Court is well positioned to convict on it. In fact, it can be solely relied upon to convict an accused person. See Yesufu v the State (1976) 6 SC. Page 167, Osuagwu v The State (2013) 1 – 2 SC 194 and Adebayo v The State (supra). Be that as it may, the position of the law is that where an extra judicial confession has been proved and established and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of fact… See Ntaha v The State (1972) 4 SC 1, Egboghonome v The State (1993) 7 NWLR (pt 307) 383, Galadima v The State (2012) 18 NWLR (pt 1333) 610, Mohammed v The State (2014) 12 NWLR (pt 1421) 387, Gira v The State (1996) 4 NWLR (pt 443) 375; Bature v The State (1994) 1 NWLR (pt 320) 267.” Per OKORO, J.S.C. PER NIMPAR, J.C.A.
WHETHER OR NOT IT IS EVERY CONTRADICTION IN THE EVIDENCE OF A PROSECUTION’S WITNESS THAT IS FATAL TO THE CASE
The law is that any contradiction must be material before it can affect the outcome of the case, see the case of PRINCENT & ANOR V. STATE (2002) LPELR-2925(SC) wherein the apex Court held thusly:
“The law is firmly settled that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to its case, such conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. See Nasamu v. The State (1979) 6 – 9 SC 153, Onubogu v. The State (1974) 1 All NLR (Pt. 2) 5; Ibe v. The State (1992) 5 NWLR (Pt. 244) 642 at 649; Azu v. The State (1993) 6 NWLR (pt. 299) 303 at 316; Wankey v. The State (1993) 5 NWLR (pt. 295) 542 at 552 etc. Where conflict or contradictions in the evidence of the prosecution witnesses raise no doubts as to the guilt of the accused, the only duty of the trial Judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution’s case. See Inyere Akpuenya v. The State (1976) 11 SC 269 at 276; Sunday Emiator v. The State (1975) 9 11 SC 107 at 112; Azu v. The State (1993) 6 NWLR (Pt. 299) 303 at 316 etc.” Per IGUH, J.S.C. PER NIMPAR,J.C.A.
DEFINATION OF THE TERM “FRAUDULENTLY”
Fraudulently was defined in the case of ONWUDIWE V. FRN (2006) LPELR-2715(SC) thusly:
“…the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently. Fraud, the noun variant of fraudulently, is (1) an action or a conduct consisting in a knowing misrepresentation made with the intention that the person receiving that misrepresentation should act on it;
(2) the misrepresentation resulting in the action or conduct;
(3) an action or a conduct in a representation made recklessly without any belief in its truth, but made with the intention that the person receiving that misrepresentation should act on it and so on and so forth. See Bryan A. Gamer, A Dictionary of Modem Legal Usage, Second Edition, page 374. A fraudulent action or conduct conveys an element of deceit to obtain some advantage for the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.See generally Kettlewell v. Watson (1882) 21 Ch.D 685 at 685; R. v. Reigels (1932) 11 NLR 33; Welham v. DPP (1960) 44 Cr. App. R. 124; R v. Odiakosa (1944) 10 WACA 247; R. v. Bassey (1931) 22 Cr. App. R.160. An offence is said to be committed fraudulently, in the context of the appeal before us, if the action or conduct is deceit to make, obtain or procure money illegally. By the fraudulent action or conduct, the accused deceives his victim by what he does not really have. In one word, he is an impostor.” Per TOBI, J.S.C. PER NIMPAR,J.C.A.
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Criminal Appeal is against the decision of the High Court of Ogun State sitting in Abeokuta and delivered by HON. JUSTICE O. O. MAJEKODUNMI on the 21ST AUGUST, 2017 wherein the lower Court held that the Respondent proved its case beyond reasonable doubt and found the Appellant guilty of the 4 count charge of stealing and conspiracy to steal and sentenced the Appellant to 7 years imprisonment on each of the counts which are to run concurrently from the date it was passed. The Appellant dissatisfied with the decision, filed a Notice of Appeal dated 27th day of May, 2020 setting out 6 grounds of Appeal.
Facts leading to this appeal are straight forward and amenable to brief summary. The prosecution’s case is that Mr. Segun Onasaya who testified as PW1 is the Managing Director of Mosebolatan Segun Onasanya Nig Ltd, an incorporated Limited Liability Company (hereinafter referred to as “the Company”) and having its office at No. 46 Ijoko Road, Prefanla, Akute, Ogun State. The Appellant is PW1’s nephew who joined the employment of the company as a Sales Attendant in 2003 and worked in the company until March, 2010 when he voluntarily left the employment. During the Appellant’s employment, he worked with two other employees by the name Okunola Taiwo and Samuel Oludare, all of them are clerks in charge of sale of cement and making deposit payments in the bank. After the Appellant left the company, the other two co-workers too left immediately after, this raised suspicion and Mr. Segun Onasanya had noticed a shortfall in cash deposits which he investigated and discovered that there had been a lot of stealing which was attributed to the Appellant and the other two workers. Mr. Segun Onasanya thereafter engaged the services of Saka Olalere Ayorinde (PW3) to carry out the audit of the company finances and the report showed that about Seventy Million, Two Hundred and Seventy-Nine Thousand, Eight Hundred and Fifty Naira (N70,279,850) was stolen at different points when the Appellant and the other two workers were in the employment of the company. It was also discovered during investigation that the culprits used three methods to carry out the stealing to wit: (1) they collect money from a customer, write the correct amount in the receipt and then undervalue the amount on Daily Activities Record (DAR); (2) there will be no record of payment at all; (3) they used to alter the actual figure on the Daily Activities Record and by this they will not pay the actual amount into the bank. The 4th Amended Information is against 2 accused persons, the original 1st and 3rd accused persons, the 2nd original accused was at large and did not go through the trial, the charge reads:
“That you:
1. RAUF SAHEED ABIDEMI
2. SAMUEL OLUDARE AMURE
Are charged with the following offences:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to steal contrary to Section 516 of the Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Rauf Saheed Abidemi, and Samuel Oludare Amure, Taiwo Okunola (now at large) between 1st day of January, 2008 and 30th day of June, 2010 at Akute, within the Abeokuta Judicial Division with intent to defraud, conspired to steal property of Mosebolatan Segun Onasanya Nigeria Limited (formerly trading under the name and style “Mesobolatan Ventures)”.
STATEMENT OF OFFENCE – 2nd COUNT
Stealing contrary to Section 390 (6, 7 & 8) of the Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Rauf Saheed Abidemi, Samuel Oludare Amure and Okunola Taiwo (now at large) between January, 2008 and October, 2009, at Akute, within the Abeokuta Judicial Division with intent to defraud, stole and fraudulently converted to your own use, the aggregate sum of Fifty Six Million, Six Hundred Seventy Three Thousand, Five Hundred and Fifty Naira (N56,673,550.00) property of Mosebolatan Segun Onasanya Nigeria Limited, (formerly trading under the name and style “Mesobolatan Ventures)” being funds from the company’s sales.
STATEMENT OF OFFENCE – 3rd COUNT
Stealing contrary to Section 390 (6, 7 & 8) of the Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Rauf Saheed Abidemi and Samuel Oludare Amure between November, 2009 and March, 2010 at Akute, within the Abeokuta Judicial Division with intent to defraud, stole and fraudulently converted to your own use, the aggregate sum of Eleven Million, Five Hundred and Fifty Thousand, Fifty Naira (N11,550,050.00) property of Mosebolatan Segun Onasanya Nigeria Limited (formerly trading under the name and style “Mesobolatan Ventures)”, being funds from the company’s sales.
STATEMENT OF OFFENCE – 4th COUNT
Stealing contrary to Section 390 (6, 7 & 8) of the Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Samuel Oludare Amure between April, 2010 and June, 2010 at Akute, within the Abeokuta Judicial Division with intent to defraud, stole and fraudulently converted to your own use, the aggregate sum of Two Million, Fifty-Six Thousand, Two Hundred and Fifty Naira (N2,050,250.00) property of Mosebolatan Segun Onasanya Nigeria Limited (formerly trading under the name and style “Mosebolatan Ventures)”, being funds from the company’s sales.
During trial, the Appellant testified for himself while the Respondent called 3 witnesses and tendered Exhibits P1-P37, also the statements of the Appellant as Exhibits P27A-P27G. The learned trial Judge in his judgment dated 21st August, 2017 found the Appellant guilty of three of the counts, stealing and conspiracy to steal. The Appellant was convicted and sentenced to 7 years imprisonment on each of the counts and sentences were to run concurrently from the date of judgment. The Appellant aggrieved with the said judgment brought the instant appeal.
Pursuant to the Rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the Appeal. The Appellant’s brief settled by J. T. OGUNNIYI, ESQ., is dated 3rd June, 2020 filed on the same day but deemed on the 16th November, 2020. The Appellant distilled 2 issues for determination as follows:
1. Whether the learned trial Judge was right in law when he held that the prosecution has proved beyond reasonable doubt the ingredients of the offence of conspiracy to steal and stealing against the Appellant. (Distilled from ground 1, 2, 3, 5, and 6)
2. Whether the learned trial Judge was right to have imposed the maximum sentence on the Appellant in view of the fact that the Appellant is a first offender, has been stripped of all his assets and has been in custody at Correction Center prior to the delivery of the judgment. (Distilled from grounds 4)
The Respondent’s Brief settled by A. A. ADEBAYO, ESQ., dated 2nd day of January, 2021, filed on the 21st January, 2021 but deemed 10th January, 2022. The Respondent formulated a sole issue as follows:
Whether considering the totality of legal and factual issues raised by the Appellant in his Brief of Argument and the general circumstances of this case, this Honourable Court will interfere with the judgment of the lower Court in this case.
APPELLANT’S SUBMISSION
ISSUE ONE
Arguing this issue, the Appellant submitted that from the evidence on record, the trial Court was wrong to hold that the prosecution has proved beyond reasonable doubt the ingredients of the offence of conspiracy to steal and stealing against the Appellant. The Appellant relied on Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(1) of the Evidence Act, 2011, UCHE WILLIAMS V. THE STATE (1992) 10 SCNJ 74, KIM V. THE STATE (1992) 4 SCNJ 81, DR. ODUNEYE V. THE STATE (2001) SCQR 1, UBANI V. THE STATE (2004) 1 MJSC 92 and STATE V. OLADOTUN (2011) 10 NWLR (PT.1256) 572 to submit that criminal matters are constitutional and must be proved beyond reasonable doubt.
The Appellant reproduced the holding of the trial Court at page 938 of the record of appeal to argue that the trial Judge convicted the Appellant on the basis that there is manifest circumstantial evidence of fraudulent taking and conversion of money stolen from the company by the Appellant, this was premised on the series of lodgments of money made into the account of the Appellant while he was in the employment of the company, however, contrary to the holding of the trial Judge, the circumstantial evidence of lodgments of money is not such that is cogent, reasonable and compelling enough to make a tribunal come to the irresistible conclusion that the Appellant stole money belonging to Mosebolatan Segun Oresanya Nig. Ltd because the prosecution failed to prove all the essential ingredients of the offence of stealing.
The Appellant reproduced the charge preferred against him to contend that by the combined reading of Sections 382 and 383 of the Criminal Code and Section 135 of the Evidence Act, 2011 provide the 4 essential ingredients of the offence of stealing which must be proved beyond reasonable doubt by the Respondent. The Appellant cited AYENI V. STATE (2016) 47 and MUSA OYEBANJI V. STATE (2015) 62 NSCQR 767 in support.
The Appellant categorized his arguments into eight parts and will be summarized as follows:
Firstly, the Appellant submits that the company’s ownership of the things was not proved. The Appellant reproduced counts 2 and 3 of the information to submit that the Respondent failed to prove whether the money was kept with or put in custody of the Appellant or not and the charge said money was stolen by the Appellant because from the record of the Court, the Appellant’s only duty was to sell the cement and remit the proceeds to the company’s account. Furthermore, the Appellant argued that the Respondent failed to prove: (1) the quantity of the cement products or stocks delivered to the Appellant by the company; (2) the total cement products or stocks belonging to the company that was sold by the Appellant and transformed to money after such sales; (3) The total amount of money remitted to the company by the Appellant out of the total sales; and the total amount the Appellant failed to remit to the company after the sales.
The Appellant reproduced answers given by PW3 and PW4 during cross-examination as contained at pages 806, 758-759 of the record of appeal to submit that both of them admitted that the total stock of cement supplied to the company was never considered for computation, therefore, the question that comes to mind is: if the total stock of the cement or the value of the cement after sales is not made known, how would it be possible to know the total sales made, the total amount remitted and the amount not remitted which constitutes the alleged money stolen and belonging to the company? The Appellant continued to argue that without a proper answer to the above, the sum of N68,223,600.00 allegedly stolen does not belong to Mosebolatan Segun Onasanya Nig Ltd and the Appellant urge the Court to hold and resolve this issue in favour of the Appellant.
Secondly, the Appellant argued that majority of the documents tendered by the prosecution to establish ownership of N68,223,600.00 stolen, are not documents belonging to the company. The Appellant referred the Court to Exhibits P3, P5, P6, P7, P3A, P5A, P6A and P7A which are in the name of a business called Mosebolatan Ventures, a separate and distinct company or enterprises, Exhibit P8 and P10 which are major statements of Accounts used in the computation of the money allegedly stolen are personal accounts of Mr. and Mrs. Segun Onasanya and not Mosebolatan Segun Onasanya Nig Ltd and during cross-examination of PW3 and PW4 admitted that Exhibits P7 and P7A belonged to Mosebolatan Ventures while Exhibits P8 and P10 belonged to Mr. & Mrs. Segun Onasanya and not Mosebolatan Segun Onasanya Nig Ltd which implies that the money said to have been stolen if it ever exists, was not owned by Mosebolatan Segun Onasanya Nig Ltd in line with the charge against the Appellant and there was no charge that the Appellant stole money or property belonging to Mosebolatan Ventures or Mr. & Mrs. Segun Onasanya.
The Appellant submits that the trial Judge in his judgment held that there was sufficient explanation that Exhibit P7, P3, P6 were being used by Mosebolatan Venture before Mosebolatan Segun Onasanya Nig Ltd was incorporated, however, there is no evidence before the Court to show that Mosebolatan Segun Onasanya Nig Ltd bought the assets and liability of Mosebolatan Ventures or that of Mr. & Mrs. Segun Onasanya as to give it the right to operate with documents and accounts of Mosebolatan Ventures of that of Mr. & Mrs. Segun Onasanya. The Appellant relied on OSIDELE V. SOKUNBI (2012) 15 NWLR (PT. 1324) 500, KLM ROYAL DUTCH AIRLINE V. TAHER (2014) 2 NWLR (PT. 1393), ALMUSTAPHA V. STATE (2013) 17 NWLR (PT. 1383) 350 and EMEKA V. STATE (2015) EJSC VOL. 6 at 53.
The Appellant argued that the Respondent has not proved beyond reasonable doubt that the sum of N68, 223,600.00 allegedly stolen by the Appellant belonged to Mosebolatan Segun Onasanya Nig Ltd as held in DICKSON V. STATE (2012) ALL FWLR (PT. 661) 1538 and ABIDOYE V. FRN (2014) 2 WRN P. 1.
Thirdly, the Appellant argued that in an attempt to prove that the Appellant took or converted the sum of N68,223,600.00 being property of the company, the prosecution gave instances of transactions purportedly recorded by the Appellant which the auditor tagged as “no query” and “queried” over which conclusion was drawn that the purported amount was stolen and the analysis given by the prosecution is full of contradictions and inconsistencies.
Fourthly, the Appellant reproduced the evidence of PW4 in chief at pages 793- 796 to submit that the transactions tagged “not queried” was the one written in the receipt (Exhibit P6) but same was not declared in DAR (Exhibit P6A) and when married and compared with transactions counted against the Appellant in Exhibit P2, it shows that there are material contradictions and inconsistencies in the case of the prosecution, however, the trial Judge failed to resolve this contradictions in favour of the Appellant. Also, the Appellant reproduced the content of Exhibit P2 to submit that many of the payments were made to Mr. Segun Onasanya (PW1) at home and such customers that made the payments were directed to go and obtained receipts from the Appellant and his co-workers. The Appellant further reproduced the evidence of PW3 at pages 785 under cross-examination to argue that a critical examination of Exhibit P2 reveals that money collected by PW1 (the Managing Director), expenses incurred for running the business as often recorded in the DAR were not taken into consideration by PW3 in the computation of Exhibit P2 as admitted by him and the same PW3 admitted that he has in the past done periodic auditing of the account of the company and did not find the Appellant guilty of any malpractices as far as financial recording of the company is concerned.
Continuing, the Appellant contends that the expertise of PW3 is questionable and the law is trite that a Court is not bound by the evidence of an expert particularly when the evidence is contradictory in some material particulars, therefore, an accused person should be given the benefit of doubt and not be convicted on such unreliable evidence as held in SOWEMIMO V. STATE (2004) ALL FWLR (PT. 208) 951 and AUGUSTINE ONUCHUKWU & 2 ORS V. STATE (1998) 4 NWLR (PT. 547) 576.
Fifthly, the Appellant contended that the duty of sale of cement, recording money in the DAR, issuance of the receipt for money paid and lodgment of money was done by the Appellant, the two other workers and PW1 (the Managing Director of the Company) and PW3 claimed that he was able to know who actually did not do the proper recording through the signatures of the staffs, however, during cross-examination, PW4 admits that there is no author on Exhibits P4A, P5 and P5A but there is signature of the author of the DAR on the receipt (Exhibit P5). Based on the above, the Appellant submitted that the Respondent did not link the Appellant to any wrong doing in term of issuance of receipt and lodgment of money and the law is trite that when an accused person is not linked with the commission of the alleged crime, he is entitled to an acquittal and relied on SHOFOLAHAN V. STATE (2013) 17 NWLR (PT. 1383) 281.
Sixthly, the Appellant submitted that the Daily Activities Report(DAR) are in booklet form, however, the prosecution did not tender the booklets but decided to tender one page of each booklet thereby denying the trial Court the opportunity of making total computation of content of DAR as to know whether the money being alleged are not recorded in the other part of DAR or better still to be able to know what the total sales is and what was lodged and not lodged and the law is trite that a document which ought to be produced, and not produced, is presumed that it was not produced because it is not favourable to the party who ought to produce it. The Appellant relied on CHINEKWE V. CHINEKWE (2010) 12 NWLR (PT. 1208) 226 and Section 167 (d) of the Evidence Act, 2011.
The Appellant contends that the Respondent alleged that the money stolen was paid by customers, however, none of these customers were called to testify, even though it is not necessary to call every available witness, it is incumbent on the prosecution to call a particular witness whose evidence is material for the resolution of a vital point in issue as held in ARCHIBONG V. STATE (2004) 1 NWLR (PT. 853) 488.
Seventhly, the Appellant submits that he left the employment of the company without being confronted with any allegation of stealing or any misconduct and even the PW1 admitted that throughout the time the Appellant was in his employment he was not accused of stealing, therefore, the case of the Respondent was premised on suspicion and the law is that suspicion, however well placed, does not amount to prima facie evidence and cannot ground a conviction citing OHOWOVORIOLE, SAN V. FGN & ORS 13 NSCQR P.1 RATIO 9.
Eighthly, the Appellant contended that the offence of conspiracy was not proved and there is no evidence to support conspiracy. The Appellant submits that drawing such an inference of conspiracy on such evidence on record as concluded by the trial Judge would only amount to nothing, but speculation and that is not permissible under the law because essential ingredient of the main offence of stealing have not been proved as held in STEPHEN V. STATE (2009) 44 WRN 168. Continuing, the Appellant argued that since the Respondent was unable to prove the substantive offence of stealing against the Appellant, the charge of conspiracy must definitely fail, see IDOWU V. THE STATE (2011) LPELR-3597. The Appellant urge the Court to resolve this issue one in favour of the Appellant and to allow this appeal.
ISSUE TWO
The Appellant reproduced the holding of the trial Court at page 941 of the record of Appeal to argue that it was the maximum sentence that was imposed on the Appellant as provided by Sections 516 and 390 (6, 7 & 8) of the Criminal Code Law, Cap 29 Laws of Ogun State of Nigeria, 2006 and the trial Judge did not call for allocutus, however, the Appellant submits that the trial Judge ought to call for allocutus and be lenient on the Appellant in imposing the sentence as held in QUEEN V. EYO & ORS (1962) ALL NLR 510 and EKPO V. THE STATE (1982) NCR 34.
The Appellant urge the Court to resolve these issues in favour of the Appellant and allow the appeal.
RESPONDENT’S SUBMISSION
ISSUE ONE
On the sole issue, the Respondent submit that where the trial Court properly evaluated the evidence, the Appellate Court cannot re-evaluate such evidence, relied on A.G. EKITI STATE V. DARAMOLA (2003) 10 NWLR (PT. 827) 104, therefore, the trial Court rightly held that the prosecution proved the case beyond reasonable doubt after a proper evaluation of evidence and rightly the application of the relevant laws by the trial Judge. The Respondent relied on the Evidence Act, 2011 and the cases of BROWN V. STATE (2005) Q.C.C.R, VOL. 3, 59, ALADU v. STATE (1998) 8 NWLR (PT. 563) 618, PINCENT V. STATE (2003) 7 WRN 54, BAKARE V. STATE (1987) 1 NWLR (PT. 52) 579 and NWANKWO V. FRN (2003) 4 NWLR (PT. 809) 1. Relying on ONAGORUWA V. STATE (1993) 7 NWLR (PT. 303) 49, the Respondent submits that it is trite that for a prosecution to succeed in proving conspiracy and stealing, the prosecution must succeed in proving the offence of stealing and for the prosecution to sustain the charge of stealing against the Appellant, the prosecution must prove: (1) the ownership of the thing stolen; (2) that the thing stolen is capable to be stolen; (3) that the thing was fraudulently taken or fraudulently converted as held in OLU ONAGORUWA V. STATE (1993) 7 NWLR (PT. 303) 49, WAHAB ADEJOBI V. STATE (2011) 6-7 SC (PT. 111) 65 and Section 383 of the Criminal Code Cap 29, Laws of Ogun State of Nigeria, 2006.
Predicated on the above, the Respondent in proving the above ingredients submits that PW1 was trading under the name “Mosebolatan Ventures”, before the incorporation of Mosebolatan Segun Onasanya Nigeria Limited, it employed the Appellant and the co-defendants at the trial Court to be in charge of receiving monies on behalf of the company from customers and other buyers of cement after which they were to deposit the money into the designated bank accounts used by the Company. Relying on Sections 287(1) and 385(1) of the Criminal Code Cap 29, Laws of Ogun State, 2006 and the evidence before the trial Court, the Respondent submits that the ownership of the monies allegedly stolen resides with Mosebolatan Segun Onasanya Nigeria Limited which was formerly trading under the name Mosebolatan Ventures. The Respondent relied on KENNETH CLARK & ANOR V. THE STATE (1986) 4 NWLR (PT. 35, 381) 402 to submit that except in few cases, the ownership of stolen property is treated as immaterial.
On the same score, the Respondent relied on Section 382 of the Criminal Code Cap 29, Laws of Ogun State, 2006 to submit that it is glaring that definition of property includes money which is the property allegedly stolen, as in counts 2 to 4 of the charge and there is no doubt that money is capable of being stolen. The Respondent argued that the evidence before the trial Court clearly shows that they were solely responsible for the sale, documentation of transactions in the Akute Branch of the company and the Appellant with his coworkers used unofficial methods to fraudulently divert the company’s money. Firstly, they receive cash from the customers for the goods sold, issue receipts but under declare the amount on the receipt on the Daily Activities Report, secondly, they would receive and issue receipt without declaring it in the DAR and thirdly, they would alter the already declared amount in the DAR, thereby fraudulently converting to their own use the aggregate sum of N56,056,250 and N11,550,000. Further on this issue, the Respondent argued that from the evidence before the Court below and the circumstantial evidence, the Court can infer that the Appellant and the other Defendants diverted the stolen money which shows that all the elements of stealing were well established.
The Respondent adopted the definition of the offence of conspiracy as stated in SHODIYA v. STATE (1992) 3 NWLR (PT. 230) 457 and ABACHA V. STATE (2001) 3 NWLR (PT. 699) 35 and RABIU V. STATE (2010) 10 NWLR (PT. 1201) 127 and submitted that the offence of conspiracy is hardly capable of direct proof, hence, it is a matter of inference from certain criminal acts of the parties concerned, done in pursuance of an apparent criminal purpose in common between them, therefore, it is the duty of the trial Court to ascertain the evidence of complicity of any of those charged with the offence and a Court could infer conspiracy from the fact of doing things towards a common end.
The Respondent submits that in the instant case, it is evident that they worked jointly at Akute Branch as they ensured that the cement is delivered to customers, customers’ monies are received, they issued receipts, recorded the transaction in Daily Activities Report and deposited of money in the bank inter-changeably depositing money into their various accounts. It was the contention of the Respondent that in the confessional statement of the 2nd accused person at the trial, he confessed to how they all stole from the proceeds of sale and shared every day and even built the same type of houses beside each other while they were in the employment of the company. The Respondent cited Section 8(1) of the Evidence Act, 2011 to submit that by the totality of evidence both oral and documentary before the trial Court, the offence of conspiracy to steal was well established against the Appellant and the other Defendant.
The Respondent contended that PW3 worked on the Daily Activities Report and receipts used in the company by the Appellant and other Defendants between 2008 and 2010 after the incorporation of the company. The Respondent reproduced the evidence of PW1, PW3 and the Appellant at pages 756, 758-9 and 811-12 of the record of Appeal to submit that there were no documents from the Appellant, apart from those tendered and presented by the Respondent before the trial Court evidencing transactions of the respective dates on those documents queried. It was the argument of the Respondent that the Appellant alleged that those documents bearing Mosebolatan Ventures were forged against him, but he could not produce the second copies before the trial Court, i.e any contrary documents such as DARs and receipts in the name Mosebolatan Segun Onasanya Nig Ltd used in recording the transactions on the said dates. Further on this issue, the Respondent contended that the Appellant while trying to deny that all the documents bearing the business name of Mosebolatan Ventures were not used after incorporation, he testified that after incorporation, PW1 instructed them to stop using any document in the name of Mosebolatan Ventures, however, he further testified under cross examination that he never heard of the name Mosebolatan Ventures since he joined the Company in 2000. He contradicted himself severally.
The Respondent reproduced the testimony of the Appellant at page 812 to argue that the evidence of the Appellant on the above point became unreliable and incredible under cross examination as they are all tissues of lies, hence the trial Court could not believe him. Continuing, the Respondent submits that Exhibits P3-P74 were tendered by the Respondent before the trial Court to show sample of the numerous documents analyzed and audited to prepare Exhibit P2 and they were tendered to demonstrate to the trial Court how they were used by the Appellant and other Defendants to divert the Company’s proceeds of sales. The Respondent also reproduced the testimonies of PW4 at page 796 of the record of appeal to submit that the trial Court found the explanation of PW4 on this note satisfactory and believed him.
The Respondent further reproduced the testimony of PW4 on some transactions considered or termed “No Query” and “Query” where PW4 gave the analysis of their independent investigation on how they were able to confirm the total amount stolen by the Appellant and other Defendants as contained in the Auditor’s Report. The Respondent submits that the Appellant argued that the prosecution failed to tender the books of account of each customer to establish the crime against the Appellant, however, the Appellant and coworkers did not steal goods rather it was the proceeds of sale that they tampered with and it was also in evidence that everything, as contained in all of these books, are adequately captured in the Daily Activities Report showing what transpired per day.
Furthermore, the Respondent submits that by the totality of the evidence before the trial Court, the Appellant and his co-workers were linked with the offences for which they were charged.
Finally, the Respondent submits that denying him of the plea of allocutus and imposing of the maximum sentence are entirely at the discretion of the trial Court and the trial Judge who has watched the demeanour of the Appellant throughout the trial, reserved the reason for denying the Appellant such discretion. The Respondent urged the Court to dismiss the appeal and affirm the judgment of the lower Court.
RESOLUTION
Upon careful consideration of the Notice of Appeal, the Record of Appeal and the Briefs of respective Counsel which were adopted at the hearing of the appeal, the Appellant distilled 2 issues for determination while the Respondent donated a lone issue which encapsulated the two issues formulated by the Appellant and generally criminal appeals revolve on one basic question which is whether the Prosecution proved the alleged offences (s) named in the charge because every other issue will dwell on evaluation of evidence except for some special issues. The Appellant being the party aggrieved with the judgment, his donated issues reflect his complaint and adopting same shall enable the Court to determine fully all that he contends is wrong with the judgment of the lower Court. Submissions of Counsel were summarized earlier in this judgment. I shall proceed to determine the two issues donated by the Appellant in this appeal.
ISSUE ONE
Whether the learned trial Judge was right in law when he held that the prosecution has proved beyond reasonable doubt the ingredients of the offence of conspiracy to steal and stealing against the Appellant. (Distilled from ground 1, 2, 3, 5, and 6)
The trial in issue here was a criminal trial and the burden of proof is settled by law and is beyond the need to cite any authority, the burden is on the Respondent herein as stipulated by Section 131 of the Evidence Act, 2011 and it does not shift except the evidential burden, see MUSA V. STATE (2019) LPELR-46350(SC) wherein the apex Court held thusly:
“Both sides are right that the burden of proof of the offence with which the lower Court convicted the appellant lies on the respondent and same does not shift. See Aruna & Anor V. The State (1990) LPELR-568 (SC) and Okashetu V. State (2016) LPELR-40611 (SC). Again, counsel is right that in discharging the burden, the law places on the respondent herein to prove the case against the accused by relying on: – (a) The direct evidence of eye witnesses. (b) Circumstantial evidence and/or (c) The confessional statement of the accused. See Olabode Abirifon V. The State (2013) 13 NWLR (Pt. 1372) 587 and Freeborn Okiemute V. The State (2016) LPELR-40639 (SC).” Per MUHAMMAD, J.S.C
It is also settled that for every allegation of crime, the law would have listed essential ingredients which are necessary for its proof. The term essential ingredient was defined in the case of ONAGORUWA V THE STATE (1993) 7 NWLR (Pt. 303) 49 as follows:
“An element without which an offence cannot be sustained in law. It is an inevitable, indispensable and important element of the offence.”
In this case, the offences named in the information sheet and for which the Appellant was found guilty are 3 out of the 4 counts of stealing and conspiracy to steal. The standard of proof is beyond reasonable doubt and the import of that has been explained in a plethora of cases, one of which is UKPONG V. STATE (2019) LPELR-46427(SC) wherein the apex Court held thus:
“Now, it must always be borne in mind that in criminal trials, the standard required is proof beyond reasonable doubt. It is not proof beyond any shadow of doubt. The two requirements are completely dissimilar. That is why the expression “proof beyond reasonable doubt” cannot be employed coterminously with the expression “proof beyond any shadow of doubt.” The law has opted for the expression “proof beyond reasonable doubt,” Dibie v State (2007) LPELR -941 (SC); Dimlong v Dimlong [1998] 2 NWLR (pt 538) 381, 178; State v Gwangwan (2015) LPELR -24837 (SC). I have examined most notable authorities, ancient and modern. They are all unanimous that this expression “proof beyond reasonable doubt” must remain the ubiquitous touchstone for estimating when the prosecution has discharged the burden imposed on it by law. In the realm of criminal justice, the said expression “proof beyond reasonable doubt” connotes such proof as precludes every reasonable proposition except that which it tends to support, Oladele v. Nigerian Army [2004] 6 NWLR (pt 868) 166, 179. ….the case is proved beyond reasonable doubt. The cases on this point are many. Only a handful will be cited here, Okere v. State (supra) 415 – 416; Sabi v State [2011] 14 NWLR (pt.1268) 421; Iwunze v Federal Republic of Nigeria [2013] 1 NWLR (pt.1324) 119; Njoku v State [2013] 2 NWLR (pt.1339) 548; Osuagwu v State [2013] 5 NWLR (pt.1347) 360; Ajayi v State [2013] 9 NWLR (pt. 1360) 589.” Per NWEZE, J.S.C.
The essential ingredients of stealing were stated in a number of cases; they are:
i. The ownership of the thing stolen.
ii. That the thing stolen is capable of being stolen.
iii. That the thing was fraudulently taken or fraudulently converted by the person accused.
iv. That the accused person has the intention of permanently depriving the true owner of the thing stolen.
See the case of CHYFRANK NIG V. FRN (2019) LPELR-46401(SC), AYENI V. STATE (2016) LPELR-40105(SC) and AJIBOYE V. FRN (2018) LPELR-44468(SC).
The prosecution is known to have three different means it can rely on to prove any allegation of crime labeled against a person, the law identified the methods in the case of AKINSUWA V. STATE (2019) LPELR-47621(SC) as follows:
“… it is settled law, that in order to obtain conviction of any criminal offence, the prosecution could use any of the under mentioned methods. The methods are (a) Through evidence of eye witness or witnesses (b) Through voluntary confessional statement of the accused or accused persons, and (c) Through circumstantial evidence See Agboola v The State (2013) LPELR 20652 (SC).” Per SANUSI, J.S.C
The Criminal Procedure Code of Ogun State also defined stealing in its Section 383(1) thusly:
“A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.”
The only contentious ingredient under the offence of stealing is the 3rd and 4th ingredients, these require the prosecution to prove that the moveable item was fraudulently taken or converted and it must be proved that it was taken by the Appellant to be kept permanently.
The ownership of the item, and in this case, the money that was stolen is a moveable item, whether physically or even electronically, money can be moved. Furthermore, Section 382 of the Criminal Code of Ogun State described what movable items are, it says:
“Every inanimate thing whatever which is the property of any person and which is movable, is capable of being stolen.”
The ownership of the money is not in doubt though stoutly contested by the Appellant. PW1 is the Managing Director, complainant and he is the alter ego of the company named Mosebolatan Segun Onasanya Nigeria Limited which had previously conducted business under the business name of Mosebolatan ventures prior to its incorporation as a limited liability company and in the same line of business. The company employed the Appellant when it was the business along the two others as sales clerks in charge of the sale of cement at Akute branch of the company. The allocation to the company was from Dangote Cement. The operational duties of the Appellant were such that he and the other two clerks were to sell cement, receive cash and proceeds of sale, register and pay the cash into the bank accounts of the company. Over some years, particularly between January 2008 and October, 2009 the sum of N56,056,250.00 was converted by the three clerks while between November, 2009 and March 2010, the sum of N11,550,000 was fraudulently converted. The fact that Appellant’s employment with the company and the cement business operated by the company are not in doubt and therefore the fact of the money stolen belonging to the company is also not in doubt. There is no question about the ownership of the money by the company and as found by the lower Court after due evaluation.
The argument of the Appellant in contesting the ownership of the funds is premised on the old charge and a misconception of the law. The charge was amended before judgment and by the evidence of PW1, the transition of the business from the business Ventures to a limited company was made very clear, even the Appellant admitted. The link was also made in evidence by prosecution witnesses that the business was initially known as Mesobolatan Ventures before it was incorporated as a limited liability company. The witnesses and even the Appellant admitted the use of certain forms in the name of the business venture after the incorporation to show there was a transition. His signature was evident on documents bearing the two names and also admitted that PW1 told him about the change in name. The Appellant cannot turn round to rely on the change of name as basis for the argument that ownership of the money was not proved, it is preposterous.
In any case, it was cement that translated through sales into the money stolen and the cement belonged to the company. Could the Appellant be contending that he was self-employed while selling the cement and therefore owned the cement he sold and from which the money was converted to his personal use so as to challenge the ownership of the money by the company? The Appellant admitted collecting monthly salaries from the two entities as employee. The lower Court believed the prosecution witnesses and found without difficulty that the money belonged to the company. Without anything to the contrary, the Court also agrees with the lower Court. The prosecution having gotten to that stage, the evidential burden to prove otherwise will rest with the Appellant and that was not discharged to rebut the prosecution’s case.
Furthermore, the argument that the exact quantity of cement or stock delivered was not shown is untenable because the fact remains that the sums named in the charge was found missing and the Audit Report, Exhibit P2, clearly explained the total money stolen and furthermore, the Appellant’s bank account with Ecobank, Exhibit P17B shows lodgments into the Appellant’s accounts by the 2nd accused; his account with FCMB, Exhibit P21D also shows various lodgments within the period of his employment with the business venture and the limited liability company and almost on a daily basis.
One example is Exhibits P4 and P4A which are receipts and DAR of the company, there was a cash payment of N438,000.00 by one Emmanuel on the 26/10/09, a receipt was duly issued to Emmanuel but the transaction was recorded as N38,000.00 resulting in a shortfall of N400,000.00. This was admitted by the Appellant under cross examination.
The question is which company account did the Appellant pay N400,000.00 to? This admission alone is sufficient to justify the conviction without more.
PW3 also made it clear that the missing money was discovered from the receipts and Daily Activities Report (DAR) which was used to consolidate all receipts issued to customers and also used to add up lodgments into the various banks.
However, the quantity of stock available is not one of the ingredients of the offence of stealing and the money could have come from a different source, the important thing is ownership of the money received by the Appellant and not stock of cement in the company store which is not missing.
It is settled law that an offence can be established by a confessional statement alone which has been tested and proved, see BASSEY V. STATE (2019) LPELR-46910(SC) and STATE V. SA’IDU (2019) LPELR-47397 (SC) wherein the apex Court held thusly:
“… A confessional statement, where voluntarily made, is the best evidence that the accused committed the offence and the trial Court is well positioned to convict on it. In fact, it can be solely relied upon to convict an accused person. See Yesufu v the State (1976) 6 SC. Page 167, Osuagwu v The State (2013) 1 – 2 SC 194 and Adebayo v The State (supra). Be that as it may, the position of the law is that where an extra judicial confession has been proved and established and it is positive and unequivocal and amounts to an admission of guilt, such confession will suffice to ground a finding of fact… See Ntaha v The State (1972) 4 SC 1, Egboghonome v The State (1993) 7 NWLR (pt 307) 383, Galadima v The State (2012) 18 NWLR (pt 1333) 610, Mohammed v The State (2014) 12 NWLR (pt 1421) 387, Gira v The State (1996) 4 NWLR (pt 443) 375; Bature v The State (1994) 1 NWLR (pt 320) 267.” Per OKORO, J.S.C.
Therefore, upon admission in the witness box and evidence of properties acquired by the Appellant within the same period without evidence of other means of income, it creates circumstantial evidence strong enough to nail the Appellant.
The Appellant’s Counsel also argued that documents tendered belonged to Mesobolatan ventures, this point was explained earlier and the trial Judge also addressed it adequately. The Amended charge has cleared the seeming confusion and all arguments on the alleged disparity in documents tendered in the name of Mesobolatan Ventures is untenable, because it translated into Mesobolatan Segun Onasanya Nig Ltd and companies being artificial bodies are steered and directed by human beings, see TRENCO (NIG) LTD V. AFRICAN REAL ESTATE & INVESTMENT COMPANY LTD & ANOR (1978) LPELR-3264(SC) wherein the apex Court held thusly:
“…The company itself cannot act in its own person, for it has no person; it can only act through directors, and the case is, as regards those directors, merely the ordinary case of principal and agent.” Per SOWEMIMO, J.S.C.
This was the same holding in the case of SALEH V B.O.N. LTD (2006) 6 NWLR (976) 216 where the apex Court held that a company is a juristic person and can only act through its agents or servants. Consequently, any agent or servant can give evidence to establish any transaction entered into by a juristic personality.
Furthermore, as found by the trial Judge, the Appellant admitted that PW1 told him about the transition from ventures to limited liability company and it happened in the course of his employment with the company.
I also think the Appellant has a misconception about ownership of the money and so he went on to raise issues that the account of Mr. and Mrs. Onasanya with FCMB was part of the accounts where payments were made. This line of argument was cleared by PW3 who said they tagged such payments as No query which means they were excluded from the computation of monies being investigated and therefore not considered as part of the allegation against the Appellant. Appellant therefore has no business with those payments. In any case, Appellant did not say all the missing money was paid into the said account when his own account received a large chunk of the missing money.
The allegation against the Appellant is that he paid money belonging to the company into his account without authority, and the amount converted to his personal use evidenced by the assets he acquired. Stealing N1000.00 (One Thousand Naira) is the same offence as one for stealing One Billion Naira, with little or no regard to the amount. The trial Judge in his judgment also nailed the arguments of the Appellant when he said thus:
“it is noteworthy however that PW3 told this Court he did not agree that without the book showing the goods supplied, that is the stock, it could not be shown that the company’s money was missing. He also maintained that he could do the auditing of the company’s account without taking the individual book of customers into account. I believe him. Furthermore, the unassailable evidence before this Court is that Mesobolatan Nig Ltd formerly existed as Mosebolatan Ventures before its incorporation…. it is therefore evidently clear that Mosebolatan ventures metamorphosed into Mesobolatan Segun Onasanya Nig Ltd. It is immaterial therefore that some of the books of Mesobolatan Ventures were used by PW3 in arriving at the deduction that the monies of Mesobolatan Segun Onasanya Nig Ltd were stolen. I find here that the prosecution has proved beyond reasonable doubt that the ownership of the money alleged to have been stolen resides in Mesobolatan Segun Onasanya Nig Ltd. I therefore hold that the first ingredient of the offence has been proved beyond reasonable doubt.”
The Appellant also argued that the case of the prosecution was riddled with contradiction. Superior Courts have defined and explained what contradiction is, see the case of WACHUKWU & ANOR V. OWUNWANNE & ANOR (2011) LPELR-3466(SC) thusly:
“This Court, in the case of Ogidi v. State (2003) 9 NWLR (Pt.824) 1 at pp. 23 – 24 H – A, defined the word contradiction in relation to evidence placed before a Court as follows: “The word ‘Contradiction’ is a simple English word. It derives from two Latin words: ‘Contra’ and ‘Deco- ere-dixi-dictum,’ meaning, ‘to say the opposite’, hence, ‘contradictum’ A piece of evidence contradicts another when it affirms the opposite of what that evidence has stated, not when there is just a minor discrepancy. And two pieces of evidence contradict one another when they are by themselves inconsistent. On the other hand, a discrepancy may occur when a piece of evidence stops short or, contains a little more than what another piece of evidence says or contains; some minor differences in detail.” Per MUHAMMAD, J.S.C.
The law is that any contradiction must be material before it can affect the outcome of the case, see the case of PRINCENT & ANOR V. STATE (2002) LPELR-2925(SC) wherein the apex Court held thusly:
“The law is firmly settled that for any conflict or contradiction in the evidence of the prosecution witnesses to be fatal to its case, such conflict or contradiction must be material, substantial and fundamental to the main issues in controversy between the parties before the Court thus creating some doubt that the accused is entitled to benefit from. See Nasamu v. The State (1979) 6 – 9 SC 153, Onubogu v. The State (1974) 1 All NLR (Pt. 2) 5; Ibe v. The State (1992) 5 NWLR (Pt. 244) 642 at 649; Azu v. The State (1993) 6 NWLR (pt. 299) 303 at 316; Wankey v. The State (1993) 5 NWLR (pt. 295) 542 at 552 etc. Where conflict or contradictions in the evidence of the prosecution witnesses raise no doubts as to the guilt of the accused, the only duty of the trial Judge is to observe and comment on them as such and no more. Such contradictions are not fatal to the prosecution’s case. See Inyere Akpuenya v. The State (1976) 11 SC 269 at 276; Sunday Emiator v. The State (1975) 9 11 SC 107 at 112; Azu v. The State (1993) 6 NWLR (Pt. 299) 303 at 316 etc.” Per IGUH, J.S.C.
I do not find any material contradiction between the alter ego of the venture and the limited liability company so as to warrant nullifying the finding of the trial Court or the judgment. If anything, it is the evidence of the Appellant that is riddled with contradictions as found by the trial Judge, see page 935 of the record and the lower Court went on to label the Appellant a liar just because of the different versions of same events that took place and in an effort to wriggle out of the allegation. The evidence of the prosecution was not contradicted in any way and argument or submissions of Counsel cannot replace evidence. I also find the first and second ingredients proven.
On the 3rd and 4th ingredients which are the most contentious and which requires that the prosecution as a matter of duty, link the Appellant to the unlawful movement of the money and in a fraudulent manner. To take money fraudulently supposes a number of things. Fraudulently was defined in the case of ONWUDIWE V. FRN (2006) LPELR-2715(SC) thusly:
“…the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently. Fraud, the noun variant of fraudulently, is (1) an action or a conduct consisting in a knowing misrepresentation made with the intention that the person receiving that misrepresentation should act on it;
(2) the misrepresentation resulting in the action or conduct;
(3) an action or a conduct in a representation made recklessly without any belief in its truth, but made with the intention that the person receiving that misrepresentation should act on it and so on and so forth. See Bryan A. Gamer, A Dictionary of Modem Legal Usage, Second Edition, page 374. A fraudulent action or conduct conveys an element of deceit to obtain some advantage for the owner of the fraudulent action or conduct or another person or to cause loss to any other person. In fraud, there must be deceit or an intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct.See generally Kettlewell v. Watson (1882) 21 Ch.D 685 at 685; R. v. Reigels (1932) 11 NLR 33; Welham v. DPP (1960) 44 Cr. App. R. 124; R v. Odiakosa (1944) 10 WACA 247; R. v. Bassey (1931) 22 Cr. App. R.160. An offence is said to be committed fraudulently, in the context of the appeal before us, if the action or conduct is deceit to make, obtain or procure money illegally. By the fraudulent action or conduct, the accused deceives his victim by what he does not really have. In one word, he is an impostor.” Per TOBI, J.S.C.
Going by the definition of fraudulent conduct, the conduct of the Appellant fits perfectly and his conversion of money collected upon the sale of the Company’s cement and payment of same in his account is nothing short of being fraudulent because he had no authority to do so. He did not disclose such action to the employer. The money does not belong to him and in his answers to questions under cross examination, he admitted paying company money into his account and going beyond that to acquire assets with the money as if it belonged to him. PW3 explained in details and related Exhibits on how the Appellant and his colleagues perpetrated the act of converting cash realized from sale of cement into their private accounts on rotational basis. PW4 recovered various assets as shown by Exhibit 11 – Exhibit 19. The Appellant cooperated by making disclosures of assets acquired by the stolen monies. The argument of the Appellant’s Counsel is just playing to the gallery because there is sufficient evidence to nail the Appellant.
Another method of proof which can be discerned from surrounding facts is circumstantial evidence that proved the offence with mathematical precision. Money was found missing within the period under consideration and the Appellant and two others were responsible for handling the cash, their monthly salaries were not more than N14,000 (Fourteen Thousand Naira) for the Appellant and then within the same period of time the Appellant acquired properties running into millions of Naira and he cannot explain the source. Furthermore, the co-workers were making huge payments into his account and he did not raise an alarm. The Appellant admitted to one instance as highlighted earlier and even on that basis alone, the offence of stealing was proved against him. Furthermore, Exhibit P2 reveals details of various acts of infraction committed by the Appellant which was not challenged nor contradicted by evidence.
The various Exhibits and the evidence of PW3 and PW4 tied up the case against the Appellant. There was a challenge to the competence of PW3 as an expert, that should have been done while he was in the box and not at this stage of the proceedings. An expert was defined in the case of OMISORE & ANOR V. AREGBESOLA & ORS (2015) LPELR-24803(SC) thusly:
“An Expert Witness is one who has made the subject upon which he speaks a matter of particular study, practice or observation and he must have a particular and special knowledge of the subject.” See Synh and Dole v. Johnson 50 N Homp 450 of the Evidence Act.” Per NGWUTA, J.S.C.
The apex Court in the case of ABIODUN V FRN (2018) LPELR-43838 (SC) had this to say on whose duty it is to determine whether a witness is an expert, it held thusly:
“An expert is a person who is specially skilled in the field which he is giving evidence, and whether or not a witness can be regarded as an expert is a question of law for the judge to decide.” Per GALINJE, J.S.C.
The duty is therefore that of the trial Judge and not for the Appellant to determine whether PW3 was an expert or not. The trial Judge found PW3 as an expert who gave reliable evidence, see page 932 of the record of Appeal. The learned Counsel has unfettered right to challenge the evidence but lacks the power to determine whether PW3 is an expert or not. The content of his evidence was duly evaluated by the trial Judge and I have no reason to disturb the findings.
Furthermore, assuming the Managing Director, PW1 was also accepting payments into his account, that cannot be justification for the Appellant to divert money from sales into his account. I do not see the relationship of that to the fraudulent diversion perpetrated by the Appellant, the argument of the learned Counsel for the Appellant is not convincing. As said earlier, the ultimate or exact amount diverted by the Appellant cannot water down the application of the law to the facts that he and his two co-workers were stealing from the company.
The Appellant also accused the prosecution of withholding evidence and referred to certain documents, the Appellant should have given a Notice to produce any document if it was necessary for his defence. The prosecution explained that documents in respect of smaller amounts and payments into the Managing Director’s account, PW1 were tagged No query and not included in the audit carried out on larger sums of money. The Appellant had the opportunity to cross examine PW1 on such payments when he was in the box but failed, arguments cannot replace such lost opportunity. The important question which the trial Court answered was whether the prosecution proved its case and it found that the prosecution proved its case beyond reasonable doubt.
I also do not see the need for calling customers who paid the money because for them there is nothing wrong with the transaction and the money had left their hands and duly receipted for. Customers had no complaint. What then are they coming to say? The offence was committed after payment to the Appellant and his collaborators and documentary evidence showed money was received and receipted for by the Appellant but instead of paying into the company account, part of it was diverted to his personal account.
The prosecution is ordinarily not bound to call a host of witnesses if it can prove its case beyond reasonable doubt, see the case AJIBOYE V. FRN (2018) LPELR-44468(SC) wherein the apex Court held thusly:
“In any case, it is even not the law that the prosecution must call host of witnesses to establish its case. All it is required to do is to call witnesses who are material and would assist it in proving its case.” Per SANUSI, J.S.C.
Undoubtedly, the Respondent as prosecution must present evidence to establish the ingredients. The trial Judge appreciated the salient issues raised in the trial and found that ingredients of the offence of stealing named above proved. The Appellant is not complaining about evaluation of evidence but the findings and as noted earlier, proof beyond reasonable doubt is not proof beyond all shadow of doubt, see EWUGBA V. STATE (2017) LPELR-43833(SC) wherein the apex Court held thus:
“The burden on the prosecution in a criminal trial is to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where like in this case, the evidence adduced is strong as to have only a remote probability; See Miller vs. Minister of Pensions (1947) 2 All ER 372 and Bakare v. The State (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12 – 19.” Per OGUNBIYI, J.S.C.
There is also nothing as settled as a confession which comes from the accused person admitting the commission of the crime and retraction does not invalidate the confession. The Appellant in the witness box made a caricature of himself by contradicting himself in several ways, he was tagged a liar by the Court below.
The second leg of issue one refers to the offence of conspiracy. Conspiracy is defined by the apex Court in the case of SMART V. STATE (2016) LPELR-40827(SC) in the following manner:
“Now, the essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. It must be noted that a conspiracy is a continuing offence, other persons may join an existing conspiracy and become parties to it. For example, if X approaches Y and asks him to join him and Z in robbing a Bank, when Y agrees he becomes guilty of conspiracy to rob. This highlights the point that it is not necessary for all the parties to a conspiracy to be in contact with each other. What is necessary is that all the parties to the conspiracy have a common purpose communicated to at least one other person to the conspiracy. The agreement between the parties must be proved beyond reasonable doubt, and an inference or circumstantial evidence of an agreement would do.” Per RHODES-VIVOUR, J.S.C.
The essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be express or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. It is not necessary that the conspirators must have a physical meeting. Conspiracy is inferred from the different acts of those accused of conspiracy. Mere agreement completes the offence. The Appellant and the two others working together as clerks continued to pay company funds into their personal accounts on rotational basis and most times, the 2nd accused would make such payments into the account of the Appellant and vice versa, they all left their employment about the same time. A clear example was given above with regards to the receipted payment of N438,000.00 which was recorded as N38,000.00 only. They all had assets running into millions, over and above their means, they were not earning above N14,000.00 (Fourteen Thousand Naira) only monthly. The Appellant also declined a transfer to another branch before he left the services of the company, while the 3rd clerk now at large was to replace the Appellant also declined to work. Why did the Appellant decline a transfer to another branch? They also have investments beyond their means of income, unexplainable wealth which they admitted were from company funds. Conspiracy can be inferred from circumstantial evidence surrounding events leading to the main offence. There is no speculation here as one is faced with such glaring acts committed by the Appellant and his co-conspirators. The main offence of stealing is established against the Appellant and conspiracy too.
In the light of the above findings, issue one is resolved against the Appellant.
ISSUE TWO
Whether the learned trial Judge was right to have imposed the maximum sentence on the Appellant in view of fact that the Appellant is a first offender, has been stripped of all his assets and has been in custody at Correction Center prior to the delivery of the judgment. (Distilled from grounds 4)
This is a challenge to the sentence which the trial Court imposed as the maximum term when the Appellant is a first offender. Going by Sections 390 and 516 of the Ogun State Criminal Code, the maximum sentence is 7 years for each of the counts and the lower Court imposed the maximum term. The failure to allow allocutus will not make a difference to my mind, because failure of the trial Judge to follow procedure in pronouncing sentence as required by practice will not invalidate the conviction, it will be a mere irregularity.
Simply put, sentencing means a judicial determination of the penalty for a crime. It means no more than the imposition of the punishment prescribed by law on the accused person by the Court. The sentence to be imposed by a Court must be in accordance with that prescribed by the Statute creating the offence, hence, it cannot impose a higher punishment than that prescribed for the offence nor can it impose a sentence which the statute creating the offence has not provided for.
Generally, a trial Court is not under any obligation to give reasons for imposing the maximum sentence, its discretionary and except used wrongly the Appellate Court will not question, see EKPO V. STATE (1982) NCR 34 and IDAM V. FRN (2020) LPELR-49564(SC) where EKO, JSC said:
“The Appellant, citing the principle set out in EKPO v. THE STATE (1982) NSCC 146 at 155, had argued “that the learned trial Judge erred in the principle by not taking into consideration the fact that the Appellant is a young first offender and ought to have exercised his discretion in imposing a minimal sentence which should commence running from the 12th April, 2006 when his detention in prison custody commenced”. In EKPO v. THE STATE (supra) this Court, on the facts of the case, stated that the trial Court is not bound to impose maximum sentence for an offence and that it is “free to exercise its discretion in that regard”. The issue remains in the unfettered discretion of the trial Court. The settled principle on the power the appellate Court has to interfere with a discretion exercised by the Trial Court is that the appellate Court will not lightly interfere with a discretion properly exercised by the trial Court even if the Appellate Court would have exercised the same discretion differently. It is therefore incumbent on the Appellant to establish how the trial Court or the lower Court had exercised its discretion improperly.” Per EKO, J.S.C
General principle of sentencing was restated in the case of EMMANUEL V. FRN (2019) LPELR-47925 (CA) by JAURO, JCA (as he then, now JSC) as follows:
“The appellant is contesting the decision of the trial Court squarely on sentence, hence there is a need to say a word or two on sentencing, before a resolution of the issues involved in this appeal. In a criminal trial upon conclusion of evidence and addresses, if the trial Court finds the accused not guilty it will automatically acquit him in its judgment. On the contrary, where the trial Court finds him guilty of the offence charged or any other offence, he will be convicted and the trial Court will pronounce its sentence on the accused person.”
However, before the sentence is pronounced, the accused is normally called upon to make a plea in mitigation of sentence which is known as allocutus. See ODUNAYO VS STATE (2014) 12 NWLR (PART 1420) 1 AT 25 where this Court PER JAURO JCA (as he then was now JSC) explained the process as follows:
“Etymologically, to allocate in law means “to speak out formally”. In the field of apologetics, allocution is generally done in defence of a belief. Black’s Law Dictionary, 7th Edition, defined allocution as an unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologize for the crime, or say anything else in an effort to lessen the impending sentence. In Nigeria the term “allocutus” is used, and simply put, it is a plea in mitigation of sentence. It is normally made after conviction but before sentence is passed, the Court will enquire from the convict whether he has anything to say in mitigation of sentence or why sentence should not be passed on him according to law. See Yougreen Vs State (1978) 11 FCA. The plea can be made by the convict in person or through a witness to give evidence of previous good character and good works of the convict. Where evidence of good character is given by way of allocutus, the prosecution is also at liberty to produce evidence of previous conviction.“ See also UMARU VS F.R.N (2016) ALL FWLR (PART 816) 475 AT 488, STATE VS JOHN (2013) 12 NWLR (PART 1368) 337; LUCKY VS STATE (2016) 13 NWLR (PART 1528) 128. The trial Court will proceed to impose the sentence after the allocutus. Simply put, sentencing means a judicial determination of the penalty for a crime.
It means no more than the imposition of the punishment prescribed by law on the accused person by the Court. The sentence to be imposed by a Court must be in accordance with that prescribed by the statute creating the offence, hence it cannot impose a higher punishment than that prescribed for the offence nor can it impose a sentence which the statute creating the offence has not provided for. See EKPO VS STATE (1982) 1 NCR 34, SLAP VS ATTORNEY GENERAL FEDERATION (1968) NMLR 326 and ASAKITIKPI VS STATE (1993) 5 NWLR (PART 296) 641. The sentences prescribed by Statutes can be mandatory, maximum or minimum and or a fine. Where the sentence prescribed for a particular offence is a mandatory one, no Court can give a lesser sentence and an appeal against a sentence in such a case is a waste of time, so also is allocutus. See EGUNJOBI VS FRN (2002) FWLR (PART 105) 896; STATE VS JOHN (2013) 12 NWLR (PART 1368) 337. Where a statute prescribes a minimum or maximum penalty for an offence, the discretion of the Court is limited as it cannot impose higher than the maximum or lower than the minimum, hence the Court has some degree of flexibility. In Penology, the aforementioned sentences are categorized into three, indeterminate or discretionary sentencing, mandatory sentencing and presumptive sentencing. A Court has the power to order sentence to run consecutively or concurrently, where the accused is convicted for more than one count in the charge sheet. SEE GARBA VS COP (2007) 10 NWLR (PART 1060) 378 AT 407. By virtue of Section 416(2) (d) of the ACJA, a trial Court shall not impose maximum sentence on a first offender. A Court can also impose a fine. Where a statute defining the offence expressly provides that there is no option of tine, a Court cannot impose fine. It should be noted that by virtue of Section 23(1) CPC, 382(1) CPA and 320(1) ACJL, where a Court has authority to impose imprisonment, without specific authority to impose fine, it may in its discretion impose fine in lieu of prison terms. See Apamadari vs State (1997) 3 NWLR (part 493) 289.” Per JAURO ,J.C.A
Allocutus comes after conviction and it cannot therefore alter the conviction but it can affect sentence. It is also noted that the new trend in sentencing is that a first offender should not be given the maximum sentence for the offence for which he has been convicted and the trial Court should take certain factors which strengthen the objective of sentencing, some the factors are:
i. The objective of sentencing is reformation and deterrence;
ii. The interest of the victim and the community;
iii. Appropriateness of non-custodial sentence or treatment in lieu of imprisonment; and
iv. Previous conviction of the convict.
The trial Court is advised to consider the above factors in determining sentence where a convict is not given an option of fine. As observed above, the Appellant is challenging sentence on the basis that it is excessive, he must show how the trial judge did not exercise his discretion properly. In doing so, the Appellant contended that he is a first offender and some of his properties were forfeited to the victim in compensation and he had been in custody during trial.
The other argument proffered by the Appellant is that sentence was to run from the date of sentence when he had been in custody pending trial. Well, the law is that sentence begin to run from the day it is pronounced and not from the date a convict was remanded pending trial, see
ABDULLAHI V. STATE (2015) LPELR-25928(CA) wherein the Court held thus:
“By Section 281 of the Criminal Procedure Act, “A sentence of imprisonment takes effect from and includes the whole day of the date on which it was pronounced”. Again, by Section 31 (2) of the Supreme Court Act, 1960, provides that the time during which an appellant, pending the determination of his appeal, is admitted to bail shall not count as part of any term of imprisonment under his sentence and, any imprisonment under the sentence of an appellant, whether it is the sentence passed by the Court of trial or the sentence passed by the Court of Appeal or the sentence of the Supreme Court, shall, subject to any directions which may be given by the Court, be deemed to be resumed or to begin to run, as the case requires, from the day on which he is received into prison under the sentence.” Per ABBA AJI, J.C.A.
I have considered all arguments and the fact that the Appellant is a first offender since there was no evidence of previous conviction, furthermore, some of the properties acquired with the stolen funds were forfeited to the victim of the offence, but to serve as a deterrent to young people who are in a haste to be rich, the yahoo boys syndrome is a menace in the society. However, I consider in addition the age of the Appellant and believe the 7 years each, maximum sentence on each of 2-4 count is excessive and is hereby reduced to 5years to run from the date of sentencing.
The issue is resolved partially in favour of the Appellant.
In the light of above, the appeal succeeds partially and only in terms of the sentence which has been reduced to 5 years instead of 7 years. The conviction however, stands. The judgment of the Court below delivered on the 21ST AUGUST, 2017 by HON. JUSTICE O. O. MAJEKODUNMI is hereby affirmed and adjusted only as to the sentence which is now 5 years instead of 7 years maximum sentence.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read in draft form the judgment of my learned brother, Yargata Byenchit Nimpar, JCA. just delivered.
I agree that the appeal be allowed to the extent only that the sentence imposed on the appellant ought to be reduced from a term of 7 years to 5 years imprisonment.
FOLASADE AYODEJI OJO, J.C.A.: I have read in advance a draft of the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I am in complete agreement with the reasoning and conclusions reached therein.
It is trite that the Prosecution may prove its case by any of the following methods – direct evidence, confession and circumstantial evidence. Direct evidence establishes a fact without making any inference to connect the evidence to the fact. In effect, direct evidence proves or disproves a fact directly. Confession is an admission made by a person charged with a crime that he committed that crime. Circumstantial evidence, on the other hand, requires an inference to be made to establish a fact. “Inference” is a conclusion reached by considering other facts and deducing a logical consequence from them. In other words, circumstantial evidence does not point directly to a fact. An inference must be made that would link the circumstantial evidence to the fact the party using it is trying to prove. See NASIRU VS. STATE (2021) 4 NWLR (PT. 1819)165; OKEREMUTE VS. STATE (2021) 16 NWLR (PT. 1803)587: OMOREGIE VS. STATE (2018) 2 NWLR (PT. 1604) 505.
The Appellant, his co-accused and one other who is still at large worked at the Akute branch of Mosebolatan Segun Onasanya Nigeria Limited. By their job designation, they sell company products, particularly Cement. They record daily sales into a ledger referred to as Daily Activity Report (DAR) and lodge the proceeds of sale in designated company account. There is credible evidence on record that the Appellant altered the company’s records. The value of sales recorded in receipts issued to customers is usually different from the entry made in the DAR. In some instances, receipts issued to customers as evidence of cash collected were not recorded in the DAR. Furthermore, in some cases, the record of cash lodgements recorded in the Company’s records are different from what was actually lodged in the bank. Meanwhile, there is evidence that on the days when such manipulation of accounts occurred, cash lodgements were made into the personal account of the Appellant.
For instance at pages 25 to 26 of the printed Record, upon evaluation of evidence on record, the learned trial Judge amongst others found as follows:
“Exhibit P21D is the 1st accused’s statement of account with FCMB. This exhibit shows that on 05/03/08, 30/05/08, 04/09/08, 12/11/08, 11/12/08, 29/12/08, 30/12/08, 05/01/09, 09/01/09, 12/01/09, 17/07/09, 20/07/09, 21/07/09, 22/07/09, 14/08/09, 17/08/09, 18/08/09, 19/08/09, 25/02/10, 02/03/10 and 04/03/10, the 2nd accused made deposits of the various sums of N74,687.50, N277,913.72, N948,394.97, N211,421.25, N571.238.75, N249,238.75, N400,238.75, N498,291.00, N616,291.00, N798,291.00, N353,140.50, N503,140.50, N573,140.50, N653,140.50, N189,435.47, N289,435.47, N339,435.47, N389,435.47, N101,091.11 and N311,091.11 into the said account respectively while their accomplice who is now at large lodged the various sums of N835,887.50, N400,439.07, N598,291.00, N750,291.00 and N624,358.50 into the 1st accused’s same account at FCMB on 10/03/08, 28/08/08, 07/01/09, 18/01/09, 22/01/09 and 04/02/09, respectively.”
Suffice to state that at the material times when the foregoing cash lodgements were made into his account by his fellow employees, each of them were on a monthly salary of not more than N14,000.00. The inference which the learned trial Judge rightly drew from the evidence on record is that the sums of money deposited into Appellant’s personal account were fraudulently taken from his employer with an intention to permanently deprive him of ownership of the monies. He drew the inference that the sums of monies deposited by Appellant’s accomplices were proceeds of crime. All the facts pointed to the irresistible conclusion that the Appellants and his cohorts diverted the money of their employer. The totality of the evidence on record supports the conclusion of the trial Judge that the Prosecution proved the charge against the Appellant beyond reasonable doubt.
For the above reasons and for the fuller and more detailed reasons given in the lead judgment, I too will, and do hereby dismiss this appeal.
Appearances:
J. T. Ogunniyi For Appellant(s)
A. A. Adebayo For Respondent(s)