AKINOLA v. FRN
(2022)LCN/16151(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/417C/2020
Before Our Lordships:
Folasade Ayodeji Ojo Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Abba Bello Mohammed Justice of the Court of Appeal
Between
VERA OLUBUNMI MAYOMI AKINOLA APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE DUTY OF THE COURT IN CONSIDERING A NO-CASE SUBMISSION
It is trite law that in a no-case submission, such as the one in the instant appeal, the Court is only enjoined to consider whether the evidence led by the prosecution has made out a prima facie case against the Defendant for the offences for which he is charged. See: DABOH & ANOR v THE STATE (1977) LPELR-904(SC), per Udoma, JSC at pages 14–15, para. F; AJIBOYE & ANOR V. THE STATE (1995) LPELR-300(SC), per Kutugi, JSC at page 8, para. C; and TONGO v. C.O.P. (2007) NWLR (Pt. 1049) 525, per Onnoghen, JSC (as he then was) at pages 544–545, para. E–F. PER MOHAMMED, J.C.A.
WHETHER OR NOT CRIMINAL OFFENCE IS ONLY AN OFFENCE BECAUSE IT IS DEFINED AS SO IN A WRITTEN LAW
It is settled that a criminal offence is only an offence because it is defined and made so in a written law. Section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide that:
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. PER MOHAMMED, J.C.A.
THE PURPOSE OF A NO-CASE SUBMISSION
A No-Case Submission therefore, postulates that the prosecution has failed to prove (an) essential element(s) of the alleged offence either by failing to adduce evidence in that regard or that the evidence adduced is manifestly unreliable or has been discredited under cross-examination such that no reasonable tribunal could safely convict on it. See: EKWUNUGO v FRN (2008) 15 NWLR (Pt.1111) 630 at 629; OLAWALE AJIBOYE & ANOR v STATE (1995) 8 NWLR (Pt. 414) at 414-415; ADEYEMI v STATE (1991) 6 NWLR (Pt. 195) at 35; IBEZIAKO v C.O.P. (1963) 1 SCNLR 99 at 107; DABOH v THE STATE (1977) 5 SC 197; and OKORO v THE STATE (1988) 5 NWLR (Pt. 94) 255 at 277.
Indeed, in OLAWALE AJIBOYE & ANOR v THE STATE (supra), the Supreme Court restated this trite position of the law when it held that:
“It is also settled by a chain of authorities that a submission of “no case” to answer may be properly made and upheld in the following circumstances…: 1. When there has been no evidence to prove an essential element in the alleged offence; 2. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. [Per Kutigi, JSC (as he then was) at page 8, paras. C-F].”
See also:OKAFOR v STATE (2016) LPELR-26064(SC), per Sanusi, JSC; MUSTAPHA MOHAMMED & ANOR v THE STATE (2007) 11 NWLR (Pt.1045) 303; and EMEKA EKWUNUGO v FEDERAL REPUBLIC OF NIGERIA (2008) 15 NWLR (Pt. 1111) 630. PER MOHAMMED, J.C.A.
ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the ruling of the High Court of Oyo State, Ibadan Division, delivered on the 16th of December, 2020 in Suit No. I/2EFCC/2017 – FEDERAL REPUBLIC OF NIGERIA AND (1) VERA O. MAYOMI AKINOLA; (2) OLUYOMI MAYOMI AKINOLA, wherein the wherein the trial Court overruled the Appellant’s no-case submission and called upon the Appellant to enter her defence to the charges against her in the 3rd Amended Information No. I/2EFCC/2017. The ruling of the trial Court overruling the no-case submission of the Appellant is at pages 752–781 of Vol. 3 of the Record of Appeal.
Dissatisfied with the decision of the trial Court, the Appellant brought this appeal vide an Amended Notice of Appeal filed on 21st June, 2021, which was deemed properly filed by this Court on 20th September, 2021. The Record of Appeal transmitted to this Court on the 22nd of January, 2021 was also deemed properly transmitted on the 20th of September, 2021.
Parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument filed on 21st June, 2021 was deemed properly filed on the 20th of September, 2021, while that of the Respondent filed on 26th October, 2021 was, together with the Appellant’s Reply Brief filed on 1st November, 2021, deemed properly filed on the 27th of January, 2022.
The Appellant distilled two issues for determination, namely–
1. Whether learned trial Judge rightly or wrongly overruled Appellant’s No Case Submission by ordering the Appellant to enter her defence in respect of Counts 1–15 (stealing by conversion and conspiracy to steal); Counts 24–32 (Forgery and Uttering/Conspiracy to forge/utter Board Resolutions and Statement of Affairs of Mooncrest Enterprises Ltd); Counts 33–36 (making of documents without authority and uttering of documents made without authority). (Distilled from Grounds 1, 2, 3, 4, 5, 6, 7 and 10).
2. Whether the learned trial Judge rightly or wrongly countenanced Exhibits C and AD in concluding that a prima facie case of forgery and uttering of Board Resolutions and Statement of Affairs of Mooncrest Enterprises Nigeria Ltd. was made out against the Appellant by the Respondent in Counts 33–36 and consequently ordered the Appellant to enter her defence to the said Counts. (Distilled from Grounds 8 and 9).
On the part of the Respondent, the following sole issue was distilled:
1. Whether from the evidence adduced before the trial Court the Respondent has not made out a prima facie case for the Appellant to enter upon her defence.
From the issues formulated by the parties, it seems to me that the two issues raised by the Appellant can be comfortably subsumed and resolved within the broader sole issue distilled by the Respondent which indeed is the basic consideration in a no-case submission. Therefore, I shall adopt the sole issue raised by the Respondent.
SUBMISSIONS OF THE APPELLANT:
Learned Senior Counsel for the Appellant submitted that in counts 29–32, the Appellant was alleged to have knowingly forged Mooncrest Enterprises Nigeria Ltd Board of Directors’ Resolution dated 22nd November, 2014 and fraudulently uttered same as genuine to A. G. Leventis Nigeria Plc. Learned Counsel pointed out that the Respondent failed to tender in evidence the said Mooncrest Enterprises Nigeria Ltd Board of Directors Resolution which the Appellant was alleged to have knowingly forged and uttered. He cited the cases of DURU v FRN (2018) 3 MJSC (Pt. II) 33 at 64, paras. G–E; and BABALOLA v STATE (1989) 4 NWLR (Pt. 115) 264, and submitted that this was fatal to the Prosecution’s case. He drew this Court’s attention to the fact that in the entire ruling on the No Case submission which is at pages 752–781 of the Record of Appeal, no reference whatsoever was made by the trial Judge to any Board Resolution tendered by the Respondents in proof of the allegations in the said Counts 29 and 32 of the 3rd Amended Information. He submitted that this was fatal to the Prosecution’s case and the Respondents could not be said to have made a prima facie case against the Appellant in respect of those counts. He relied on Section 128 of the Evidence Act, 2011 and the cases of ADEDEJI v OBAJIMI (2018) 16 NWLR (Pt. 1644) 146 at 166; AIS & L LTD v SUBERU (2018) 13 NWLR (Pt. 1637) 387 at 409; FAGORIOLA v FRN (2013) LPELR-20896 (SC); A.G. v CHANRAI (1965) 1 All NLR 325; DARIYE v FRN (2015) LPELR-24398; and ONAGORUWA v STATE (1993) LPELR-43436(CA), submitted that the learned trial Judge ought to have discharged and acquitted the Appellant of counts 29 and 30 of the 3rd Amended Information.
With regard to the allegation of stealing by conversion in counts 2–15 of the 3rd Amended Information, learned Counsel submitted that the learned trial Judge erred by holding that a prima facie case of stealing by conversion of the total sum of N179,125,000.00 was made out against the Appellant by the Respondent. He contended that in drafting a criminal charge, all essential ingredients of the offence must not only be stated in the charge, each of the ingredients so stated must be proved by the Prosecution. He relied on the cases of OFUANI v NIGERIAN NAVY & ANOR (2006) LPELR-5813(CA); and IPALIBO v STATE (2014) LPELR-22678(CA), per Eko, JSC (as he then was). He pointed out that in Counts 2–15 of the 3rd Amended Information, it was identically alleged that the various sums of money alleged to have been stolen by the Appellant belong to Mooncrest Enterprises Ltd, but the Respondent failed to adduce prima facie evidence to establish the ownership of the said monies by Mooncrest Enterprises Ltd as alleged in the particulars of the offences in Counts 2–15; yet the learned trial Judge held that the Appellant should enter her defence to the said counts. He specifically pointed to the evidence of PW8 and PW9 at pages 536 and 597 of Vol. 1 of the Record of Appeal where they testified that the money belonged to A. G. Leventis. Further relying on CHIANUGO v STATE (2002) 2 NWLR (Pt.750) 225; ADEJOBI v STATE (2011) LPELR-97(SC); AYENI v STATE (2011) LPELR-4380(CA); and ONAGORUWA v STATE (supra), where the ingredients of the offence of stealing were stated, he submitted that to establish prima facie case of stealing by conversion as alleged against the Appellant in Counts 2–15, the prima facie evidence that the money belongs to Mooncrest Enterprises Nigeria Ltd is indispensable, and the Respondents had failed to establish that fact and the evidence point of ownership of the monies by A. G. Leventis Ltd and not Mooncrest Enterprises Ltd. as alleged. He submitted that in the face of the discredited evidence of PW8 and PW9 which debunked the allegation that the money allegedly stolen was owned by Mooncrest Enterprises Nigeria Ltd, the learned trial Judge ought to have upheld the Appellant’s No-Case Submission on Counts 2–15. He relied on the cases of STATE v EDOBOR (1975) 9–11 S.C. 69 at 78; and C.O.P. v AMUTA (2017) 1 MJSC (Pt. II) 28 at 49.
Learned Counsel also pointed out that in Counts 2–15 of the 3rd Amended Information, the Prosecution merely alleged conversion and not fraudulent conversion. He submitted that it is the element of fraud that differentiates between the tort of conversion and criminal conversion, and for the charge of stealing under Section 383(1) of the Criminal Code to be valid is most reflect fraudulent taking or fraudulent conversion. Relying on the cases of OMIDIORA v ADEMILUYI (1997) 6 NWLR (Pt. 508) 294 at 306; AKUDO v GUINNESS NIG. PLC (2011) LPELR-8949(CA); H.S. ENGR. LTD. v S.A. YAKUBU (NIG) LTD (2009) 10 NWLR (Pt. 1149) 416; ONWUDIWE v FRN (2006) 10 NWLR (Pt. 988) 382; and 7-UP BOTTLING CO. v ABIOLA & SONS (2001) 13 NWLR (Pt. 730) 469, he argued that the Prosecution failed to plead the essential ingredient of the offence of stealing and no evidence was led by them that the Appellant fraudulently converted the sum of N179,125,000 as preferred in Count 2 or any of the monies stated in Counts 3–15 of the 3rd Amended Information. He particularly pointed to the evidence of PW5 and PW11 at page 519 in Vol. 1 and 743 in Vol. 3 of the Record of Appeal, to the effect that the monies were in custody of the First Bank Plc. He argued that this negates fraudulent intent by the Appellant which is an essential ingredient of the offences in Counts 2–15. He added that the testimonies of the Respondent’s witnesses which are conflicting and contradictory failed to establish prima facie evidence of fraudulent conversion by the Appellant and there could not be any stealing in view of the money allegedly stolen being in custody of First Bank Plc. He cited ONWUDIWE v FRN (supra); C.O.P v UDE (2010) LPELR-8599(CA); AYENI v STATE (2016) LPELR-40105(SC); ADEJOBI & ANOR v STATE (2011) LPELR-97(SC), and LOBEN INVESTMENT CO-OPERATIVE MULTIPURPOSE SOCIETY LTD v FRN (2019) LPELR-47325(CA), and submitted that the learned trial Judge wrongly overruled the Appellant’s No-Case Submission.
On the offences of forgery and uttering of board resolutions and statement of affairs of Mooncrest Enterprises Nigeria Ltd, Counsel submitted that the learned trial Judge misdirected himself when he held at page 774 Vol. 3 of the Record of Appeal that “the Defendants and Yewande Akinola forged Board Resolution of Mooncrest dated 3rd March, 2014 through which they added the names of the 2nd Defendant and Yewande Akinola and which enabled them to open the said savings plus account; solely controlled and operated by them to the exclusion of the PW2 and PW9.” Counsel pointed out that in Court 27 the Appellant was charged with forging the said Board Resolution while in Count 28 she was charged with uttering same to First Bank of Nigeria Plc. Counsel argued that the learned trial Judge misdirected himself on the evidence adduced on the record by the Respondent’s witnesses regarding the Board Resolution of Mooncrest dated 3rd March, 2014. He submitted that the evidence of PW6 at page 522 Vol. 1 of the Record, to the effect that the Mooncrest Board Resolution dated 3rd March, 2014 was not a forged document and that he prepared and signed the Board Resolution, affirmed a direct opposite to the learned Judge’s finding. Relying on the cases of EMETO v STATE (2018) LPELR-46265(CA); OGBOKA v STATE (2016) LPELR-41177(CA); ANYANWU v STATE (2012) 16 NWLR (Pt. 1326) 221 at 263 -264, he submitted that the testimony of PW6 on the non-forgery of Mooncrest Resolution in addition to being materially at variance with the learned trial Judge’s decision, it substantially impacted negatively on the overall case of the Respondent woven around the alleged forgery and uttering of the said Mooncrest Board Resolution and the learned trial Judge was wrong to have called upon the Appellant to enter her defence to Counts 1–15 and Counts 28–28 of the 3rd Amended Information.
Learned Counsel submitted that where the case of the Prosecution has been battered and rendered unreliable under cross-examination as in the instant appeal, the accused person who is the Appellant ought not to be called upon to enter a defence to the charges. He relied on AJIDAGBA v IGP (1958) 3 F.S.C. 5; and ADEYEMI v STATE (1991) 6 NWLR (Pt. 195) 1 at 35, paras. C–D.
Learned Counsel also drew the attention of this Court to pages 514-515 of the Record where during trial the learned trial Judge had rejected in evidence the account opening documents of the savings plus account when the Respondents sought to tender same through PW5. He submitted that having rejected the documents sought to link the Appellant as having opened the said account, there was no admissible evidence on the record linking the Appellant to the said savings plus account and as such the Respondents failed to establish a prima facie case that the Appellant uttered the documents to First Bank by making use of same to open the said savings plus account. He posited that the learned trial Judge acted wrongly when he held that the Appellant opened the said account using forged Board Resolution of Mooncrest dated 3rd March, 2014.
Learned Counsel for the Appellant also faulted the learned trial Judge’s reliance on the evidence of PW2, PW9 and the testimony and report of PW3 in ordering the Appellant to enter defence. He pointed out that contrary to the finding of the learned trial Judge at pages 776–777 of Volume 3 of the Record, PW9 did not adduce any evidence disowning Mooncrest Resolution dated 15th April, 2011 and PW9 never testified that Appellant signed the said resolution. He posited that the mere fact that PW2 and PW9 testified that they did not attend the Board Meeting of Mooncrest Enterprises Nigeria Ltd is not prima facie evidence that the Appellant, 2nd Defendant and Yewande Akinola knowingly forged the said Resolution dated 15th April 2011 as charged in Count 25. He added that the Respondents failed to establish prima facie that the Appellant knowingly forged the Resolution with the intention that it should be acted upon by First Bank of Nigeria Plc to its prejudice. He pointed out that the disputed documents analysed in Exhibit AD by PW3 did not include Mooncrest Resolution dated 15th April, 2011 and PW1 had at page 487 Volume 1 of the Record testified that the forensic analysis in Exhibit AD was only for Statement of Affairs and did not include Board Resolution. Counsel concluded that in view of the faulty evidence of PW2, PW9 and PW3 and Exhibit AD, the Respondent had failed to establish that Appellant knowingly forged and uttered the said Resolution to First Bank of Nigeria Plc as contained in Counts 25 and 26.
It was also the submission of the learned Counsel for the Appellant that the burden of proof of lack of conspiracy was wrongly placed on the Appellant by the trial Court by holding that since the mens rea in conspiracy is difficult to locate, the Appellant should explain her non-involvement in the counts of conspiracy to steal money belonging to Mooncrest Enterprises Nigeria Ltd. Referring to page 770 Vol. 3 of the Record, Counsel submitted that the learned trial Judge acted contrary to Section 36(5) of the 1999 Constitution on the Appellant’s right to be presumed innocent, as well as Section 135(1) & (2) which places the burden of proof on the Prosecution. He relied on the cases of ODUNLAMI v THE NIGERIA NAVY (2013) 5–7 (Pt. IV) MJSC 140; ADEKOYA v STATE (2012) 3 MJSC (Pt. II) 77 at 103; ALI v STATE (2015) Vol. 5 MJSC (Pt. 1) 98; and IGABELE v STATE (2006) 6 NWLR (Pt. 975) 100, he submitted that based on the evidence of the Prosecution witnesses on record which failed to establish ownership of the money by Mooncrest Enterprises Nigeria Ltd, the allegation of conspiracy to steal money belonging to Mooncrest Enterprises Nigeria Ltd was dead on arrival. He added that there was no iota of evidence adduced by the Respondent to support the allegations of conspiracy to forge and utter Board Resolution as found by the learned trial Judge at page 770 Vol. 3 of the Record and the learned trial Judge’s decision which is at variance with evidence adduced is liable to be set aside. He called in aid EMETO v STATE (2018) LPELR-42625(CA); OGBOKA v STATE (2016) LPELR-41177(CA); and ANYANWU v STATE (2012) 16 NWLR (Pt. 1326) 221 at 263-264.
Learned Counsel also submitted that the trial Court wrongly relied on Exhibits C and AD. He particularly referred to the evidence of PW2 at pages 493–494 and 650–651 of Volume 1 of the Record which showed that there was non-compliance with the mandatory provisions of Section 104(1)&(2) of the Evidence Act in that neither the name and designation of the officer that certified the documents nor the amount paid for certification were stated. He submitted that Exhibits C was inadmissible document and same cannot be admitted even by consent of the parties. Counsel added that at page 569 Vol. 1 of the Record, the learned trial Judge even rejected a document purported to be judgment of the Federal High Court when tendered by the Respondent under similar circumstance for non-compliance with Section 104 of the Evidence Act, 2011. Counsel argued that the finding of the trial Court at page 779 Volume 3 of the Record that Exhibit C was certified on the 17th December 2015 was not correct, as the learned trial Judge sidelined the Appellant Counsel’s ground of objection and wrongly stated that the objection to inadmissibility was on the ground that Exhibit C was a photocopy of a certified true copy when in reality the objection was for non-compliance with Section 104(1) & (2) of the Evidence Act, 2011. He also submitted that it was on the basis of the Appellant’s ground of objection to Exhibit C that it was argued that Exhibit AD that was generated from the inadmissible Exhibit C, as well as the analysis of PW3 in Exhibit AD suffered multiple legal defects and cannot be used to establish a prima facie case on the allegations against the Appellant in Counts 33 to 36 of the 3rd Amended Information.
Learned Counsel also pointed to the evidence of PW10 at page 730 Vol. 3 of the Record wherein he admitted under cross-examination that Exhibit C is an extract of the Audited Report prepared by Bakertillly (Nig.) Chartered Accountants. Counsel contended that it is trite that a Court should not countenance or pronounce on a detached or fragmented part of a document, and the learned trial Judge ought not to have countenanced Exhibit C. He relied on ARCHBISHOP OLUBUNMI OKOGIE & ORS v EPOYUN (2010) 11 NWLR (Pt. 1206) 456 at 476. Counsel also argued that contrary to the decision of the learned trial Judge, the mere fact that PW2 and PW9 disowned the Statement of Affairs of Mooncrest Enterprises Nigeria Ltd under the said Counts 33 and 35 of the 3rd Amended Information did not equate to a prima facie evidence that the said documents were made without lawful authority of Mooncrest Enterprises Nigeria Ltd. He added that no prima facie evidence was adduced by the Respondent that the Appellant made the said Statement of Affairs of Mooncrest Enterprises Nigeria Ltd without lawful authority, as no evidence was led that the Appellant signed the signatures alleged to be the signatures of Akintunde Akinola and Akinyemi Akinola on the said Statement of Affairs and no official of the Corporate Affairs Commission testified that the said Statement of Affairs were uttered to the Corporate Affairs Commission by the Appellant as alleged in Counts 34 and 36 of the 3rd Amended Information. He submitted that the Respondent failed to establish prima facie case on Counts 33–36 of the said Amended Information.
Finally, Counsel urged this Court to resolve all the issues in favour of the Appellant and allow the appeal, set aside the ruling of the triail Court and uphold the Appellant’s No-Case Submission.
SUBMISSIONS OF THE RESPONDENT:
In his counter submissions, learned Counsel for the Respondent, Festus Ojo Esq. cited the case of OKAFOR v STATE (2016) LPELR-26064(SC) 18, para. B and 26–27, paras. E–D, where the principle guiding No-Case Submission was restated. He argued that the Prosecution had led evidence to show how the Appellant in conjunction with one Oluyomi Akinola (who was the 2nd Defendant at the trial Court) and one Yewande Akinola conspired among themselves to steal the proceeds of the sale of a large expanse of land belonging to Mooncrest Enterprises Nigeria Ltd (Mooncrest) and pursuant to that intention, they forged and uttered several documents including a board resolution, the signature mandate of the said Mooncrest’s account with First Bank of Nigeria Ltd (FBN) and Statement of Affairs filed at the Corporate Affairs Commission which they used to open a parallel account No. 3095697827 with First Bank which they used to receive the monies meant for the company. That after receiving the monies, they diverted various sums to various other accounts over which the Appellant had sole control with the intention of permanently retaining them.
Learned Counsel submitted that Exhibit B at page 29 and 30 of Vol. 2 of the Record which is an attached document to a letter from the Corporate Affairs Commission to the EFCC shows that after the withdrawal of Chief SPA Ajobade Mooncrest have only three directors, namely – (i) the Appellant, (ii) PW2, Mr. Akinyemi Akinola, and (iii) PW9, Mr. Akintunde Akinola. He argued that the signature of the only account of Mooncrest permitted the Appellant and any of the other two directors (PW2 or PW9) to sign for transactions on the account, but the Appellant conspired with the 2nd Defendant and Yewande Akinola to change the Bank Signature Mandate by forging and uttering a Board Resolution to that effect, because PW2 and PW9 who were claimed to be present proved before the trial Court that they were never at that meeting and did not sign the Extract of the Resolution dated 3rd March, 2014 as purportedly shown in the attached document to Exhibit F.
Learned Counsel referred this Court to the extra-judicial statement of the Appellant dated 8th February, 2016 (Exhibit AN1-AN11) at pages 502 and 504 of the Record of Appeal, wherein she stated that when her husband died on 11th March, 1990 he had left a will bequeathing to her his entire interest in Moon Crest Enterprises while giving all other investments to his children; and that PW2 and PW9, her step-children, are not shareholders, but she was the one who brought them in and introduced them to the Bank in 1999 for one of them to sign with her and this was the arrangement until 2011 when it became clear they were not interested in the company. Counsel submitted that the argument of the Appellant that this is a civil matter of family affairs or that the Appellant is the same person as Mooncrest is misconceived, since a company is a distinct legal entity from its promoters, directors or shareholders.
He cited SOLOMON v SOLOMON & CO. LTD (1897) AC 22.
Learned Counsel asked the Court to discountenance the argument of the Appellant that she has not completed the stealing since the sale of the land is inchoate and that the money does not belong to Mooncrest because if the sale is nullified the Defendants would have to indemnify the buyer A.G. Leventis by returning the allegedly stolen sum. Counsel submitted that indemnity clauses are routine to contracts of sale of land or assignment of interest in land and this does not change the fact that monies received into Mooncrest coffers are presently in the custody of the Appellant who is the sole signatory of the accounts into which they were lodged purportedly on behalf of Mooncrest. Counsel argued that the intention was clear which was to permanently deprive Mooncrest of the ownership of those monies.
On the charge of conspiracy in Count 1 of the 3rd Amended Information, learned Counsel for the Respondent submitted that conspiracy can simply be inferred from surrounding facts and circumstances of the case. He cited OKAFOR v STATE (supra); ADELEKE v STATE (2013) 16 NWLR (Pt. 1381) 556 at 584 paras. D–E; and KAZA v STATE (2008) 7 NWLR (Pt. 1085) 125. He argued that from the evidence adduced at trial, there is a meeting of minds between the Appellant and 2nd Defendant to carry out the various actions that are alleged to constitute the offences of stealing, forgery, uttering, receiving stolen goods, etc.
On whether the Respondent had linked the Appellant with the offence of stealing stated in Counts 1–15 of the Information, Counsel referred to the definition of stealing stated in OYEBANJI v STATE (2015) 1 NWLR (Pt. 1479) 270. He submitted the Prosecution has stated the provision of the law under which the Defendants including the Appellant were charged for stealing and which provision was given a judicial interpretation. He argued that contrary to the submissions of the Appellant, the law does not impose on the Prosecution the burden of referring to conversion as “criminal conversion” or “fraudulent conversion” nor does it impose on the Prosecution the burden to prove fraudulent intention before stealing can be established. He argued that the position of the law is that anybody who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with intent to permanently deprive the owner of the thing. He argued that fraudulent intention is implied by law.
Learned Counsel for the Respondent submitted that the Prosecution had presented sufficient evidence to require the Appellant and the other Defendants to enter their defence as the Prosecution was able to show through unassailable testimonies of 11 witnesses and Statement of Account which showed clearly that such funds meant to be paid into Mooncrest’s account number 2001754957 were paid into account number 3095697827 secretly and fraudulently opened by the Appellant without the knowledge of other signatories and Directors. Counsel pointed out that the Appellant’s Counsel had conceded at trial that the 2nd Defendant received a little less than N10 Million from the over N206 Million and that third parties were paid from this sum in circumstances that permanently make it impossible to restore ownership to Mooncrest Enterprises. He added that the Appellant had also in her statements made to EFCC admitted dealing with these funds in circumstances that amount to stealing under the law. He argued that unless the Court accepts the proposition that the Appellant is the owner of Mooncrest Enterprises, the Appellant will be required to explain how these monies ended up in strange accounts though in the name of the company where she has absolute control and why interest from the money placed in fixed deposit drops regularly into personal account of the Appellant.
On the charge of conspiracy to commit forgery in Count 24, learned Counsel submitted that evidence was led on the action of the Appellant, the 2nd Defendant and one Yewande Akinola in forging a Board Resolution and altering the signature mandate to enable them substitute themselves as signatories to the company’s authorized account and also intentionally open other accounts to receive monies and divert same. He submitted that the Appellant had misconceived the offence of forgery as only restricted to alteration of signatures, when it extends to issuance of false document in part or in whole to gain advantage or support a claim. He cited MUSTAPHA v FRN (2018) LPELR-46565(CA), per Bdliya, JCA at pages 17–18, paras. E–B. Counsel referred to the evidence of PW3, the handwriting analyst and argued that the offence of conspiracy was prima facie established.
As for the offence of forgery and conspiracy to commit uttering in Counts 25 and 26 of the 3rd Amended Information, Counsel referred to the Appellant’s extra judicial statement dated 8th February, 2016 at page 507 and argued that the Appellant had confessed that she committed the offence and as such there was no need for further proof. He relied on BAALO v FRN (2016) LPELR-40500(SC) at page 21, paras. C–E. Similarly, for the offence of forgery in Counts 27, 29 and 31, Counsel referred to Exhibits AN1 to AN11 which are the extra judicial statements of the Appellant at pages 499–537 of Vol. 2 of the Record. He argued that the statements contain admissions and references by her and the 2nd Defendant that they procured many documents in order to open different Bank Accounts apart from the one authorized by the Board of Directors of Mooncrest Enterprises Ltd.
On the charge of uttering in Counts 28, 30, 32, 34 and 36, it was argued on behalf of the Respondent, relying on ONODAVWERHO v FRN (2019) LPELR-47185(CA), that PW2 and PW9 have led evidence that they did not authorize the Appellant or her co-defendants to sign any document on their behalf and as such, there is the need to call them to enter their defence to state their own side before the trial Court. He added that the Board Resolution, the Bank Signature Mandate and the Statement of Affairs were all false documents uttered to various persons in fraudulent circumstances and no evidence was led to the contrary to show that the Appellant and other defendants did not utter those documents.
Turning to the charge of making statements without authority in Counts 33 and 35 of the 3rd Amended Information, Counsel argued that the offence is committed upon proof that the Defendant had uttered a document in the name of another person without his authority to induce a third party to act on it. He submitted that there is irreputable forensic evidence in Exhibit AD that Mr. Akinyemi Akinola’s (PW1’s) signature on that document was forged and a prima facie case has therefore been made, requiring an explanation from the Appellant.
On the Appellant’s contention that Exhibit B, the CAC documents sent to EFCC was wrongly admitted by the trial Court, Counsel urged this Court to discountenance same as the documents were filed by PW6 at the behest of the Appellant and that was why the Appellant’s Counsel did not object to their admissibility during trial. He argued that the covering original letter had all the substantial requirement of a certified true copy. He cited the cases of OLLY v TUNJI & ORS (2012) LPELR-7911(CA) at page 45, paras. B-C; ORIZU v ANYAEGBUNAM (1978) SC (Reprint) 18, where it was held that a document and its attachment have the same legal weight. He argued that Exhibits B1 attached to Exhibit B goes with it. He further argued that…
Learned Counsel submitted that even if it is assumed, though not conceded that Exhibit C at page 66 of Vol. 2 of the Record is a photocopy, such document is still admissible under primary rule of evidence notwithstanding that the document is a letter sent to EFCC which has the custodian, the EFCC that has the right to tender a certified true copy of it. He argued that it would not be necessary to lay foundation before the certified true copy is tendered. He cited KAWU v MINISTER OF FCT & ORS (2016) LPELR-41142(CA) at page 9–11, para. F. He pointed out that the Supreme Court had enjoined trial Courts not to analyse evidence and make pronouncements of same at this stage. Finally, Counsel urged the Court to hold that the Respondent had made out a prima facie case against the Appellant as held by the trial Court, warranting the Appellant to enter upon her defence.
APPELLANT’S REPLY:
In his reply, learned Counsel for the Appellant pointed out that in paragraphs 4.1, 4.4, 5.3, 7.2, 9.5, 11.2, 12.1, 12.2 and 12.4 of the Respondent’s Brief of Argument, the Respondent’s Counsel had made submissions that were unsupported by evidence on record. He submitted that all the arguments made by the Respondent’s Counsel in those paragraphs were at variance with and unsupported by the evidence on record. He argued that the issues to the effect that the Appellant forged bank signature mandate of Mooncrest Enterprises Ltd; that EFCC placed a lien on all the account where the stolen monies are kept; that Appellant and 2nd Defendant opened other fraudulent accounts to receive monies from the public and divert same to secret accounts; that Appellant agreed that PW2 and PW9 are shareholders of Mooncrest Enterprises Ltd, etc., are fresh issues raised by the Respondent’s Counsel in this appeal for the first time.
Learned Counsel pointed out that there is no charge in the 3rd Amended Information to the effect that Appellant forged signature mandate of Mooncrest Enterprises Ltd., and no evidence on record to the effect that Appellant removed PW2 and PW9 as signatories or forged signature mandate of Mooncrest Enterprises Ltd. There is also no evidence that the EFCC placed a lien on all bank accounts where stolen monies are kept. There is also no evidence to support the submission of Respondent’s Counsel that the Appellant and the 2nd Defendant intentionally opened other fraudulent accounts to receive monies from the public and divert same to secret accounts. He added that diversion proceeds of sale of land by Appellant to parallel account is not a component of any of the counts of offences and there is no evidence of it on the record. Counsel argued that the case presented in the Respondent’s Brief of Argument differs from the case presented in the trial Court.
Counsel contended that the trite law is that submission of Counsel can never be a substitute for evidence. He added that the submissions of the Respondent’s Counsel run contrary to the established principle that parties cannot on appeal argue or present a case different from the one presented at the trial Court. Placing reliance on the cases of OGHENERUEMU IBANE v THE STATE (2012) LPELR-97029(CA); OJO v FRN (2008) 11 NWLR (Pt. 1099) 467; PACER MULTI-DYNAMICS LTD v THE M.V. DANCING SISTER & ANOR (2012) LPELR-7848(SC); and FIDELITY BANK PLC v THE M.T. TABORA & ORS (2018) LPELR-44504(SC), Counsel urged this Court to discountenance the unsupported submissions of the Respondent’s Counsel.
Learned Counsel further submitted that the Respondent’s Brief had failed to answer all the points raised and argued in issue 1 of the Appellant’s Brief of Argument. He pointed out that the failure of Respondent to adduce evidence to establish essential ingredients of the offences in Counts 1–15, especially the non-tendering of the Board Resolution or establishment of the ownership of the money allegedly stolen. He similarly submitted that the Respondent failed to answer to or contest the submissions/points raised in the Appellant’s Brief of Argument that the learned trial Judge raised suo motu the issue of “interest of Mooncrest in keeping the money safe and intact” and resolved the same against the Appellant contrary to settled law. He added that the Respondent’s Brief of Argument had failed to respond to the Appellant’s contention that the learned trial Judge’s decision on the No-Case Submission is not supported by the evidence adduced by PW6. Learned Counsel also pointed out that the issue that the learned trial Judge based his decision in respect of Counts 33–36 on uncertified and inadmissible Exhibits C and AD was also neither answered nor contested by the Respondent in its Brief of Argument.
Learned Counsel for the Appellant submitted that the Respondent’s failure to answer to all the highlighted issues/points raised in the Appellant’s Brief of Argument is tantamount to Respondent’s concession of the said issues or points. He placed reliance on the cases of EIGBE v N.U.T. (2008) 5 NWLR (Pt. 1081) 604 at 625, paras. G– H; NWANKWO v YAR’ADUA (2010) 12 NWLR (Pt. 1209) 518; OKONGWU v NNPC (1989) 4 NWLR (Pt. 115) 296; and ERAVWODOKE v UBTHMB (1993) 2 NWLR (Pt. 277) 590, all to the effect that the failure of a Respondent to reply to an issue in the Appellant’s brief is tantamount to conceding the issue raised by the Appellant.
Counsel added that the submission of the Respondent urging this Court to disregard the Appellant’s contention that Exhibit C is inadmissible by virtue of Section 104(1) & (2) of the Evidence Act is contrary to the established principle of law that Courts determine issues only on legally admissible evidence. He placed reliance on KALE v COKER (1982) 12 SC 257-258; and OMEGA BANK (NIG) PLC v O.B.C. LTD. (2005) 8 NWLR (Pt. 928) 547.
Learned Counsel also urged this Court to discountenance the Respondent’s submission that this Court should rely on the judgment of Hon. Justice J. O. Abdulmalik in Suit No. FHC/IB/16/2016, dated 10th December, 2018 since the unreported judgment was tendered by the Respondent and was rejected by the trial Court and marked as such. He relied on MUSA v STATE (2019) 2 NWLR (Pt. 1655) 140; and BELLO v GOVERNOR OF KOGI STATE (1997) 9 NWLR (Pt. 521) 496.
Counsel also submitted that the Respondent had misrepresented the facts contained in the Record when he stated that the Appellant’s Counsel had conceded that the 2nd Defendant received a little less than N10 Million out of the over N206 Million. He referred to the submission of the Appellant’s Counsel at page 647 Vol. 1 of the Record of Appeal.
It was also submitted for the Appellant that the submission of the Counsel for the Respondent that the Appellant had made confessional statements admitting the offences is unsupported by the evidence on record as the Appellant never made such admissions of guilt. Relying on OSUAGWU v STATE (2013) 1 MJSC (Pt. II) 130 at 154, paras. D–F, he argued that BAALO v FRN (supra), relied upon by the Respondent is not applicable because in that case the accused made self-incriminating confessional statement and pleaded guilty three times to the charge for which he was convicted. He added that contrary to the reliance placed on OKAFOR v STATE (supra) by the Respondent, the decision in that case supports the Appellant’s submissions that the essential elements of the offences charged were not prima facie established and the Respondent’s evidence was discredited as a result of cross-examination and rendered manifestly unreliable that no reasonable Tribunal could safely convict upon it.
RESOLUTION:
It is trite law that in a no-case submission, such as the one in the instant appeal, the Court is only enjoined to consider whether the evidence led by the prosecution has made out a prima facie case against the Defendant for the offences for which he is charged. See: DABOH & ANOR v THE STATE (1977) LPELR-904(SC), per Udoma, JSC at pages 14–15, para. F; AJIBOYE & ANOR V. THE STATE (1995) LPELR-300(SC), per Kutugi, JSC at page 8, para. C; and TONGO v. C.O.P. (2007) NWLR (Pt. 1049) 525, per Onnoghen, JSC (as he then was) at pages 544–545, para. E–F.
However, before proceeding to consider whether the Prosecution had made out a prima facie case against the Appellant before the trial Court, it is imperative that I first consider and determine the Appellant’s challenge to the propriety/competence of the charge of stealing made against her in Counts 2–15 of the 3rd Amended Information which he made in item (C), paragraphs 4.29–4.31 of the Appellant’s Brief of Argument. The principal contention of the Appellant is that the charge in the said counts merely alleged “conversion” and not “fraudulent conversion” and that this makes the charge incompetent, as there is a difference between “conversion” which is under tort and “fraudulent conversion” which is under the criminal offence of stealing.
In response, learned Counsel for the Respondent had in paragraphs 10.1–10.2 of the Respondent’s Brief of Argument referred to the case of OYEBANJI v STATE (2015) NWLR (Pt. 1479) 270, where Sections 383(1), (2), (3) and (4) of the Criminal Code, Laws of Oyo State, Cap. 30 Vol. 11, 1978 was quoted in defining the offence of stealing, and asserted that the law neither imposes the requirement of referring to conversion as ‘criminal conversion’ or ‘fraudulent conversion’ nor does it impose on the Prosecution the burden to prove fraudulent intention before stealing can be established.
According to him, the fraudulent intention is implied by law once the taking is with the intention to permanently deprive the owner of the thing.
To enable a proper resolution of this issue, it is pertinent that I reproduce Section 383(1) – (4) of the Criminal Code, Laws of Oyo State, Cap. 30, Vol. 11, 1978 which was referred to by the parties and which has defined the offence of stealing. The said Section provides:
(1) A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person, anything capable of being stolen, is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents:
(a) an intent to permanently deprive the owner of the thing;
(b) an intent to permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
(f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.
(3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.
(4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a Power of Attorney for the disposition of it, or is authorized to dispose of the property.
(underline mine for emphasis).
From the above quoted provisions of Section 383(1) – (4) of the Criminal Code of Oyo State, it is clearly discernible that ‘stealing’ is defined as fraudulent taking or fraudulent conversion. This basic definition is expressly stated in Subsection (1) quoted above. In other words, for a charge of stealing to be proper, it must contain the element of “fraudulent taking” or “fraudulent conversion” as defined in Section 383(1) quoted above. It is a statutory element that must be stated in the charge for the charge to be valid.
It is settled that a criminal offence is only an offence because it is defined and made so in a written law. Section 36(8) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provide that:
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
(12) Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.
In GEORGE v FRN (2013) LPELR-21895(SC), the Supreme Court reiterated this trite position when Fabiyi, JSC held at pages 18-19, paras. A–A as follows:
“Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides. Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court. It occurs to me that Section 203 of the Criminal Code is not in tune with the dictate of Section 36(12) of the 1999 Constitution. That being the position, the charges filed under Section 203 of the said Code ostensibly for splitting contract in disobedience of lawful order by constituted authority cannot stand. I maintained the same stance when faced with a similar scenario in Asake v. Nigerian Army Council (2007) All FWLR (Pt. 396) 731 at 746 – 747. With due sense of purpose and humility, I stand by it. I say it with utmost confidence that the same position applies to the provision of Section 104 of the said Criminal Code Act said to have constituted arbitrary acts resulting in abuse of office are splitting of contracts which were not offences known to law at the material time. The alleged conduct of ‘splitting of contract’ was not only outside any written law but in fact, not an offence at the material time. The same goes for conspiracy to split contract. It occurs to me that the entire proceedings ran foul of the provisions of Section 36(8) of the 1999 Constitution…”
It is important to state that as shown in Section 383(1) of the Criminal Code of Oyo State quoted above, the statute creating the offence usually defines what constitutes the offence and states whether the offence is committed by an act or omission and prescribes the punishment for it. Thus, the elements or ingredients of an offence are discernible from the wordings of the Section of the statute which creates the offence. See: ROLAND v FRN (2018) LPELR-43686(CA), per Ogakwu, JCA at page 32, para. B. It is beyond doubt that Section 383(1) of the Criminal Code of Oyo State which defines “stealing” makes the “fraudulent taking” or “fraudulent conversion” an important and distinctive element or ingredient of that offence.
As rightly observed by the Appellant, the act of “conversion” without the qualification of “fraud” is one which the law places into the civil realm of the law of torts. In BONIFACE ANYIKA & COMPANY LAGOS NIG. LTD. v UZOR (2006) LPELR-790(SC), the Supreme Court stated the civil nature of the tort of conversion when His Lordship Tobi, JSC (of blessed memory) held at pages 18–19, para. C that:
“For the tort of conversion to be committed, the following ingredients must be present and proved. (1) The goods belong to the plaintiff. (2) The goods do not belong to the defendant (3) The goods are taken out of the possession of the owner, the plaintiff, without lawful justification. (4) The defendant must have the intention of exercising permanent or temporary dominion over the goods. (5) There must be specific demand for the goods by the plaintiff, the owner. (6) That denial must be followed by an unequivocal act of refusal to surrender the goods by the defendant to the plaintiff. The crux of the tort is that the defendant must deal with the goods of the plaintiff in a manner inconsistent with the plaintiff’s right of ownership. In view of the fact that ownership is central to the tort, a plaintiff who cannot prove ownership cannot succeed in an action on the tort of conversion. Demand is also a vital ingredient. There cannot be conversion until the plaintiff formally makes a demand for the goods, followed by a refusal by the defendant to surrender them. That is when the intention of the defendant to deny the plaintiff’s right to ownership of the goods comes to the open.”
But in the case ONWUDIWE v FRN (2006) 10 NWLR (Pt. 988) 382, the same cerebral law lord, Tobi, JSC (of blessed memory) differentiated the tort of conversion from stealing when he held at page 429 that:
“Although the disjunctive conjunction “or” is not used at the end of each of the sub-items of Section 383(2), it is the meaning of the subsection that an offence of stealing is committed if any of the conducts of the sub-items of Section 383(2) is committed. In other words, it is not the meaning of Section 383(2) that all the sub-item in Section 383(2) must be present before an offence of stealing is committed. This is clear from the opening words of Section 383(2): “if he does so with any of the following intents”.
As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently.”
See also on this: OKWUDIMONYE V FRN (2021) LPELR-54873(CA), per Abundaga, JCA at pages 19–20, paras. D–D.
It is therefore, clear from the above that the difference between the civil tort of conversion and the criminal offence of stealing is in the qualification of the act of ‘taking” or ‘conversion’ with the element of ‘fraud’. In other words, ‘conversion’ simpliciter without being fraudulent can only amount to tort of conversion and not stealing. Thus, as shown from the decision of the Apex Court in ONWUDIWE v FRN (supra), for a criminal charge of stealing to be competent, it must include the element of fraud.
I have examined the charge against the Appellant for the offence of stealing contained in Counts 2–15 of the 3rd Amended Information from pages 659–673. For clarity, I reproduce below the charge which is contained in all the said counts:
STATEMENT OF OFFENCE – 2ND COUNT
Stealing contrary to Section 390(7) of the Criminal Code of Oyo State, Cap. 38, Laws of Oyo State of Nigeria, 2000
PARTICULARS OF OFFENCE
Vera Olubunmi Mayomi Akinola (a.k.a) Vermi Studio Products, Oluyomi Mayomi Akinola and Yewande Mayomi Akinola (still at large) sometime in 2015 within the jurisdiction of this Honourable Court, converted to your own use, the total sum of N179,125,000 (One Hundred and Seventy-Nine Million, One Hundred and Twenty Five Thousand Naira Only) property of Mooncrest Enterprises Nigeria Limited.
The above reproduced charge is what is contained in all the Counts 2–15 of the 3rd Amended Information. As can be seen the charge of stealing in those counts only contained the element of the civil tort of conversion simpliciter without any element of fraud which, as stated in the express provision of Section 390 of the Criminal Code and reiterated in ONWUDIWE v FRN (supra) is what distinguishes the offence of stealing from the tort of conversion.
For the offence of stealing to be properly constituted under Section 383 of the Criminal Code of Oyo State therefore, it must be alleged that the taking or conversion by the Appellant was done fraudulently. The Respondent did not allege that the Appellant acted fraudulently, an essential statutory ingredient of the offence of stealing.
In considering a scenario where critical elements of an offence were omitted in a charge, such as in the instant case, this Court had, in judgments in three interrelated appeals of OTUNBA C. A. ALAO-AKALA v FRN Appeal No. CA/IB/251C/2021, [reported as (2021) LPELR-56126(CA), per Bada, JCA at pages 9-11, para. D]; OLUFEMI ADEMOLA BABALOLA v FRN Appeal No. CA/1B/250C/2021; and HON. HOSEA AGBOOLA v FRN Appeal No. CA/IB/245C/2021, all delivered on the 2nd of December, 2021, held that the failure to state elements of an offence in a criminal charge is beyond a mere irregularity, but affects the competence of the charge and the Defendant’s right to fair hearing.
Specifically, in its judgment in BABALOLA v FRN (supra), this Court held as follows:
“It is important to stress that in criminal proceedings the Prosecution is enjoined to establish all the elements of the offence against the defendant beyond reasonable doubt, and it is basically on those elements that the parties to the criminal proceedings will join issues as to whether or not the allegation(s) against the defendant has been established. In SARAKI v FRN (2018) 16 NWLR (Pt. 1646) 405, the Supreme Court emphasized this point when it held at page 433, paras. E–F, that:
It is the Prosecution’s duty to ensure that the elements of an offence are properly spelt out in the charge:
Thus, a charge or information which does not contain the essential elements of the offence would be bad and invalid. This position was indeed stated in the same case of SARAKI v FRN (supra) when the Apex Court, while considering a similar scenario where essential element of the offence was not stated, held at pages 467, para. F and 469, paras. B–D, as follows: “By Section 36(6)(a) of the 1999 Constitution, every person who is charged with a criminal offence shall be entitled to be informed in detail of the nature of the offence and to be given adequate facilities for the preparation of his defence. In this case, the Appellant ought to be informed in the information of the person who complained that his asset declaration did not comply with the Code of Conduct for Public Officers. Further, he ought to know or ought to be informed before his trial the “authority or the person authorized on that behalf” that examined his assets declaration and found them to be false. The omission of these details in the information filed by the Respondent was a fundamental defect that rendered counts 4, 5 and 6 of the charge against the appellant incurably bad and invalid as argued by the appellant.”
In emphasizing the importance of stating the ingredients of a criminal offence in the particulars of the charge this Court, per Ejembi Eko, JCA (as he then was) held in IPALIBO v STATE (2014) LPELR-22678(CA), that:
“In every criminal proceeding, the first duty of the Prosecution is to lay or draw up the charge or allegation constituting the criminal offence with sufficient particulars of the elements or ingredients of the offence. Since the Prosecution has the bounden duty to establish the ingredients of the offence with which the accused stands charged, in order to sustain a conviction all the ingredients constituting the alleged offence must be stated in the charge. By stating in detail the ingredients of the offence in the particulars of the offence the basic duty imposed on the Prosecution by Section 36(6)(a)(b) of the Constitution would have been discharged. The accused cannot be convicted for an offence outside the contents of the charge.”
Although the learned Counsel for the Respondent had tried to argue that the proof of fraud in a charge of stealing under Section 383 of the Criminal Code of Oyo State can be inferred under any of the circumstances stated in paragraphs (a) – (f) of Subsection (2) of the Section, the point must be made that his contention only relates to proof. It is only when the essential element of fraud is contained in the charge of stealing itself that the issue of inference in relation to proof of fraud can arise. Hence, the fact that fraud can be inferred does not excuse the mandatory requirement for its inclusion in the charge before same can be inferred. In fact, this argument of the learned Counsel for the Respondent flies in the face of the 3-Count Information which the Respondent first filed at the trial Court against the Appellant dated 21st February, 2017, which is at pages 1–7 of the Record. The Record shows that in the charge of stealing contained in Count 1 of that Information, the Respondent clearly alleged that the Appellant “with intent to defraud fraudulently converted for your own use the sum of …” Interestingly, this critical element of fraud was omitted in the Respondent’s 3rd Amended Information. (See page 1A of Vol. 1 of the Record of Appeal).
Given the omission in Counts 2–25 of the 3rd Amended Information of the element of ‘fraud’ in the act of ‘taking’ or ‘converting’ which is a critical constituent in the charge of stealing created in Section 390 of the Criminal Code of Oyo State, the contention of the Respondent that the law does not impose upon it the requirement of referring to conversion as ‘criminal conversion’ or ‘fraudulent conversion’ is not supported by law. As highlighted in SARAKI v FRN (supra), and relied upon by this Court in ALAO-AKALA v FRN (supra); BABALOLA v FRN (supra); and AGBOOLA v FRN (supra), the failure to state such an important element of the offence of stealing cannot be regarded as a mere irregularity.
It is for the reasons aforementioned that I uphold the submission of the Appellant that the charges against the Appellant in Counts 2–15 as couched do not come within the definition of stealing contained in Section 383(1) of the Criminal Code of Oyo State.
Notwithstanding the above however, I am conscious of the fact that this is an intermediate Court. Hence I shall proceed to consider the whether prima facie case has been made by the Respondent on those Counts as well as the other Counts contained in the 3rd Amended Information needs to be considered, should the above decision on the competence of Counts 2–15 be found to be wrong if there is any appeal on same. I shall therefore, proceed to consider whether the Respondent made out a prima facie case in respect of all the charges against the Appellant for which the trial Court called upon her to enter defence.
It is trite law that in a No-Case Submission, the Court is only enjoined to consider whether the evidence led by the prosecution has made out a prima facie case against the Defendant for the offences for which he is charged. See: DABOH & ANOR v THE STATE (1977) LPELR-904(SC), per Udoma, JSC at pages 14–15, para. F; AJIBOYE & ANOR V. THE STATE (1995) LPELR-300(SC), per Kutugi, JSC at page 8, para. C; and TONGO v. C.O.P. (2007) NWLR (Pt. 1049) 525, per Onnoghen, JSC (as he then was) at pages 544–545, para. E–F.
A No-Case Submission therefore, postulates that the prosecution has failed to prove (an) essential element(s) of the alleged offence either by failing to adduce evidence in that regard or that the evidence adduced is manifestly unreliable or has been discredited under cross-examination such that no reasonable tribunal could safely convict on it. See: EKWUNUGO v FRN (2008) 15 NWLR (Pt.1111) 630 at 629; OLAWALE AJIBOYE & ANOR v STATE (1995) 8 NWLR (Pt. 414) at 414-415; ADEYEMI v STATE (1991) 6 NWLR (Pt. 195) at 35; IBEZIAKO v C.O.P. (1963) 1 SCNLR 99 at 107; DABOH v THE STATE (1977) 5 SC 197; and OKORO v THE STATE (1988) 5 NWLR (Pt. 94) 255 at 277.
Indeed, in OLAWALE AJIBOYE & ANOR v THE STATE (supra), the Supreme Court restated this trite position of the law when it held that:
“It is also settled by a chain of authorities that a submission of “no case” to answer may be properly made and upheld in the following circumstances…: 1. When there has been no evidence to prove an essential element in the alleged offence; 2. When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it. [Per Kutigi, JSC (as he then was) at page 8, paras. C-F].”
See also: OKAFOR v STATE (2016) LPELR-26064(SC), per Sanusi, JSC; MUSTAPHA MOHAMMED & ANOR v THE STATE (2007) 11 NWLR (Pt.1045) 303; and EMEKA EKWUNUGO v FEDERAL REPUBLIC OF NIGERIA (2008) 15 NWLR (Pt. 1111) 630.
(i) On the Charge of Stealing in Counts 2–15 of the 3rd Amended Information:
In line with the settled position that where there is a charge of conspiracy and of the substantive offence, the charge of the substantive offence should be considered first before the charge of conspiracy, I shall first examine the main offences before conspiracy to commit those offences in determining whether the Respondent had made out a prima facie case. See: OKANLAWON v STATE (2015) LPELR-24838(SC), per Ariwoola, JSC at pages 44–45, para. G.
In the Counts 2–15 of the 3rd Amended Information contained at pages 659–673 of the Record, the first contention of the Appellant in relation to those counts is that the Respondents who alleged in the charge of stealing in those counts that the money allegedly stolen was owned by Mooncrest Enterprises Nigeria Limited have not only failed to establish that fact, PW8 and PW9, the Respondent’s witnesses gave contrary evidence that the money is owned by A. G. Leventis. The Appellant also contended that the learned trial Judge’s finding that “there in my view lie the interest of Mooncrest in keeping the money safe and intact” is an admission by the trial Court that the Respondent failed to adduce prima facie evidence as to the ownership of the monies allegedly stolen.
It is instructive that this contention of the Appellant which is in paragraphs 4.16–4.28 of the Appellant’s Brief of Argument was not effectively responded to in the Respondent’s Brief of Argument. Indeed, instead of responding to the specific issues, contentions or points raised in the Appellant’s Brief of Argument, the Respondent had, in its Brief of Argument, embarked on making its own arguments in justification of the decision of the trial Court and failed to respond to the specific issues or points raised by the Appellant. It is only in paragraphs 17.0– 17.3 that the Respondent responds to other issues raised in the Appellant’s Brief of Argument.
It is trite that appeals are argued on the parties’ briefs of argument, and issues/points raised in an Appellant’s Brief of Argument which are not responded to in the Respondent’s Brief of Argument are deemed conceded. See: FULANI M v STATE (2018) LPELR-45195(SC), per Galinje, JSC at pages 10–11, para. F; SAKATI v BAKO & ANOR (2015) LPELR-24739(SC), per Ngwuta, JSC at pages 36–37, para. E; NWANKWO v YAR’ADUA (2010) 3 SCNJ (Pt. 1) 244 at 265; OKONGWU v NNPC (1989) 4 NWLR (Pt. 115) 296; and ERAVWODOKE v UBTHMB (1993) 2 NWLR (Pt. 277) 592 at 596. The Respondent rather merely repeated the assertion that the money belongs to Mooncrest Enterprises Nigeria Limited and did not address the contention of the Appellant on the contrary testimonies of PW8 and PW9.
In the identical charge of stealing in Counts 2–15 of the 3rd Amended Information which I had earlier reproduced above, it is stated that the money allegedly stolen was the “property of Mooncrest Enterprises Nigeria Limited.” Now, my examination of the record of the testimonies of PW8 and PW9 shows that as rightly posited by the Appellant the Respondent’s witnesses gave contradictory testimonies as to the ownership of the monies allegedly stolen in those Counts of the 3rd Amended Information. At page 536 Vol. 1 of the Record of Appeal, PW8, Fidelis Usenbor, a Legal Manager in A.G. Leventis Nigeria Plc, when cross-examined as to the ownership of the money, stated that:
“We still regard it as our money having not concluded the transaction.”
As for PW9, Akintunde Akinola, one of the step-sons of the Appellant and one of the Directors of Mooncrest Enterprises Nigeria Limited, who indeed was one of the complainants, under cross-examination on the ownership of the money, stated at page 597 of the Record:
“The N207,000,000.00 belongs to Leventis because all the 1st Defendant’s action has been declared illegal.”
It is trite that proof of ownership of the thing alleged to have been stolen is an imperative ingredient to the establishment of the offence of stealing. In restating the definition of stealing and its ingredients, the Supreme Court, per Adekeye, JSC held in ADEJOBI & ANOR v STATE (2011) LPELR-97(SC) at pages 38–39, para. F, as follows:
“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 ingredients of the offence of stealing are as follows namely -1. The ownership of the thing stolen. 2. That the thing stolen is capable of being stolen. 3. The fraudulent taking or conversion.”
See also CHIANUGO v STATE (2001) LPELR-7006(CA), per Oguntade, JCA (as he then was) at page 8, paras. A–A; ADEROUNMU v FRN (2019) LPELR-46923(CA), per Tobi, JCA at pages 28–29, para. F; and KADIRI v NIGERIAN ARMY (2021) LPELR-56083(CA), per Shuaibu, JCA at page 19, para. D.
In the instant case, the Respondents have alleged in the charge of stealing against the Appellant in Counts 2–15 that the money is the property of Mooncrest Enterprises Nigeria Limited, while its two witnesses (PW8 and PW9) have each stated that the said money is the property of A.G. Leventis Nigeria Plc.
It is pertinent to state that the failure to prove an alleged fact is either through the failure to adduce evidence to establish that fact, or the evidence so adduced in an effort to establish the alleged fact is insufficient or not credible enough to establish the fact. But the worst in such a failure of proof is one where the evidence adduced in order to establish the alleged fact instead contradicts its existence.
With the contrary testimonies of PW8 and PW9 as to the ownership of the money which the Respondent alleged was the property of Mooncrest Enterprises Nigeria Ltd, even if there are other witnesses of the Respondent who led evidence that the money is owned by Mooncrest Enterprises Nigeria Limited, the case of the Respondent against the Appellant for stealing in Counts 2–15 has evidently crashed. This is because the settled law is that where the witnesses of a party lead contradictory evidence it is not open for the Court to pick and choose which part of the evidence to believe. A party is expected to be consistent in establishing his case. See: COP v AMUTA (2017) LPELR-41386(SC), per Peter-Odili, JSC at page 22, para. C; and GALADIMA v STATE (2017) LPELR-43469(SC), per Ariwoola, JSC at pages 28–29, para. F.
Also, as rightly pointed out by the Appellant in paragraph 4.32 of her Brief of Argument, PW7, Ojo Daniel, a legal practitioner who used to work with the firm of S.P.A. Ajibade, the law firm that represented Mooncrest, had testified asserted under cross-examination that: “I don’t believe that the 1st Defendant stole the said sum of N206,000,000.”
It is therefore clear that with the contrary evidence given by PW8 and PW9 as to the ownership of the money allegedly stolen and the assertion by PW7 that the Appellant did not steal the said sum of N206,000,000, the Respondent cannot be said to have established a prima facie case of stealing against the Appellant, even if the said charges in Counts 2–15 were to be regarded as valid. As rightly observed by the learned Senior Counsel for the Appellant, the finding by the learned trial Judge that “there, in my view lie the interest of Mooncrest in keeping the money safe and intact” connotes a form of acknowledgment of the lack of proof of the ownership of the money by Mooncrest Enterprises Nigeria Limited as alleged in the said Counts.
As I had stated earlier, a No-Case Submission is made out where: (i) there is no evidence to prove an essential element or ingredient of the offence; and/or (ii) where the evidence led by the Prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict on it. See: COP v AMUTA (supra) at page 21–22, para. F; and MOHAMMED v STATE (2007) LPELR-1899(SC), per Tabai, JSC at pages 9–10, para. C. Where either or both is established, the No-Case Submission must succeed. In the instant appeal, I have found that the charge of stealing is not only incompetent, but its essential ingredient of the ownership of the money alleged to have been stolen was unproven, in view of the contrary evidence as to ownership of the money given by PW8 and PW9, the Respondent’s witnesses, which evidence is at variance with what was alleged in the Charge.
It is for all the aforementioned reasons that I find and hold that the learned trial Judge was wrong to have dismissed the Appellant’s No-Case Submission in relation to the charge of stealing preferred against her in Counts 2–15 of the 3rd Amended Information. Based on the printed record, the Appellant’s No-Case Submission was clearly made out in relation to the allegation of stealing in Counts 2–15 of the 3rd Amended Information and the learned trial was wrong to have asked the Appellant to enter her defence on those counts. I so hold.
On the charges of forgery and uttering:
The essential contention of the Appellant under the charge of forgery and uttering, is that the Appellant was alleged to have knowingly forged Board Resolutions of Mooncrest Enterprises Nigeria Limited which the Appellant uttered to First Bank of Nigeria Plc in order to open a Savings Plus Account.
On the allegation in Counts 29-32 that the Appellant forged and uttered Board Resolution of Mooncrest Enterprises Ltd dated 22nd November, 2014 to A.G. Leventis Nigeria Plc as genuine, the Respondent, in its Brief of Argument, never countered the contention of the Appellant in paragraph 4.2 of the Appellant’s Brief of Argument that the Respondent failed to tender the said Board Resolution in evidence and that throughout his ruling on the No-Case Submission at pages 752–781 of Vol. 3 of the Record the learned trial Judge made no reference to any Board Resolution dated 22nd November, 2014 tendered by the Respondent to support the allegation in Counts 29 and 30 of the 3rd Amended Information. As earlier stated, the failure by a party to specifically respond and counter an issue or point raised in a brief of argument will be tantamount to conceding the issue or point so raised. See: FULANI M v STATE (supra); SAKATI v BAKO & ANOR (supra); NWANKWO v YAR’ADUA (supra); OKONGWU v NNPC (supra); and ERAVWODOKE v UBTHMB (supra). Having not responded to those contentions of the Appellant, the Respondent must be regarded as having conceded that point.
Similarly, on the allegation in Counts 29-32 that the Appellant forged and uttered Board Resolution of Mooncrest Enterprises Ltd dated 22nd November, 2014 to A.G. Leventis Nigeria Plc as genuine, the Respondent never countered the contention of the Appellant in paragraph 4.2 of the Appellant’s Brief of Argument that the Respondent failed to tender the said Board Resolution in evidence and that throughout his ruling on the No-Case Submission at pages 752–781 of Vol. 3 of the Record the learned trial Judge made no reference to any Board Resolution dated 22nd November, 2014 tendered by the Respondent to support the allegation in Counts 29 and 30 of the 3rd Amended Information. As earlier stated, the failure by a party to specifically respond and counter an issue or point raised in a brief of argument will be tantamount to conceding the issue or point so raised. See: FULANI M v STATE (supra); SAKATI v BAKO & ANOR (supra); NWANKWO v YAR’ADUA (supra); OKONGWU v NNPC (supra); and ERAVWODOKE v UBTHMB (supra). Having not responded to those contentions of the Appellant, the Respondent must be regarded as having conceded that point.
It is settled law that where a transaction is alleged to be contained in a written document, the document must be tendered in proof of that transaction. See: Section 128(1) of the Evidence Act, 2011 and the case of A.G. BENDEL STATE & ORS. v UBA LTD. (1986) LPELR-3163(SC), per Oputa, JSC at page 25, para. B; ANYANWU & ORS v UZOWUAKA & ORS (2009) LPELR-515(SC), per Tabai, JSC at page 22, para. D; and ADEDEJI v OBAJIMI (2018) LPELR-44360(SC), per Bage, JSC at page 35, para. D. With the failure of the Respondent to tender the Board Resolution of Mooncrest Enterprises Ltd of 22nd November, 2014 which was alleged to be forged by the Appellant, it was not surprising that the learned trial Judge never made reference to the said Board Resolution dated 22nd November, 2014, yet he proceeded to hold that the Respondent had made out a prima facie case against the Appellant in respect of Counts 29 and 30 of the 3rd Amended Information. However, as shown above, the failure to produce the Board Resolution dated 22nd November, 2014 which was alleged to be forged by the Appellant had made the allegation against the Appellant in Counts 29 and 30 dead on arrival, and the learned trial Judge ought to have discharged and acquitted the Appellant on those counts. I so find and hold.
On the allegation that the Appellant forged Board Resolution of Mooncrest Enterprises Ltd dated 3rd March, 2014, the Respondent had also not specifically countered the Appellant’s assertion that the evidence on record, especially that of PW6 is not supportive of that allegation. My examination of the printed record shows that the evidence adduced in relation to the allegation against the Appellant of forgery of Mooncrest Enterprises Nigeria Limited Board Resolution dated 3rd March, 2014, especially that evidence of PW6, is at variance with the finding of the learned trial Judge that the Appellant forged the said Board Resolution.
At page 522 Vol. 1 of the Record of Appeal, the Respondent’s witness, PW6, Chief Felix Eneh, who was the Company Secretary of Mooncrest Enterprises Nigeria Ltd, had under cross examination testified that:
“By paragraph 4 of Exhibit K on the appointment of additional Directors, I now say that Resolutions were signed, Forms were filled and submitted to CAC but were returned because of irregularity in signature of Chief S.P.A. Ajibade. I signed the Board Resolution dated 3rd March, 2014 attached to Exhibit F. I prepared that Board Resolution.”
PW6 again on the same page stated under cross-examination that “The Resolution of 3rd March, 2014 was not a forged document.”
Despite the above evidence on record, the learned trial Judge held at page 774 Vol. 3 of the Record as follows:
“My understanding of the prosecution’s case is that, the Defendants and Yewande Akinola forged the Board Resolutions of Mooncrest Enterprises Ltd dated 3rd March, 2014 through which they added the names of the 2nd Defendant and Yewande Akinola and which enabled them to open the said Savings Plus Account, solely controlled and operated by them to the exclusion of PW2 and PW9.
That the said sum of N206,000,000 which came from A. G. Leventis was paid into the said Account from which the Defendants carried out several transactions as shown in Exhibit F.
I have painstakingly looked at the prosecution’s case particularly through the prism of the PW1, PW2, PW9 and PW10 both in chief and under cross examination and I am of the view that, the counts needs some explanation from the Defendants.”
It is obvious from the above that there is glaring contradiction in the evidence of the Respondent’s witnesses as it relates to the allegation against the Appellant of forgery of the Board Resolution of Mooncrest Enterprises Ltd dated 3rd March, 2014, especially between the evidence of PW6 which I have quoted above and the other witnesses which the learned trial Judge said he relied upon. And while the learned trial Judge preferred and even quoted the evidence of the other witnesses, especially PW1 and PW10 at pages 768 and 769 of Volume 3 of the Record, he completely ignored and made no reference to the contrary evidence of PW6 quoted above.
As stated earlier, the trite law is that where there is contradiction in the testimonies of a party’s witnesses on an issue, the Court should not pick and choose which of the witnesses to believe, but should reject the testimony of the party on the issue entirely. See: COP v AMUTA (supra); and GALADIMA v STATE (supra).
From the evidence on record therefore, the evidence led by the witnesses of the Respondent in relation to the allegation against the Appellant of forgery of Board Resolution of Mooncrest Enterprises Ltd dated 3rd March, 2014 was contradictory and ought to have been rejected by the learned trial Judge. His above finding thereon is therefore, perverse to the evidence on record. I so hold.
As for the allegation against the Appellant in Counts 25 and 26 of forging and uttering Board Resolution of Mooncrest Enterprises Ltd dated 15th April, 2011, the Respondent, in his Brief of Argument also failed to respond to the Appellant’s contention in paragraph 4.47 of the Appellant’s Brief of Argument, that the finding of the learned trial Judge to the effect that PW9 had disowned the Board Resolution of Mooncrest Enterprises dated 15th April, 2011 and stated that the Appellant signed the said Resolution, was not borne by the evidence led on the record, and that the finding of the trial Judge in relation to Count 25 can only be restricted to the examination of Statement of Affairs of Mooncrest Enterprises Nig. Ltd as PW3 never carried out a handwriting analysis on the Resolution of Mooncrest dated 15th April, 2011 as the disputed documents in Exhibit AD did not include Mooncrest Resolution dated 15th April, 2011. The failure of the Respondent to respond to those contentions also amounts to conceding those contentions of the Appellant.
Also an examination of the printed record of appeal at pages 776–777 of Vol. 3, shows that, as posited by the Appellant, the learned trial Judge’s decision in ordering the Appellant to enter her defence to Count 25, which was based on the evidence of PW2, PW3 and PW9, is faulty, in that, apart from merely stating that Mooncrest Enterprises Resolution dated 15th April, 2011 was addressed to First Bank and was signed by the Appellant, the evidence of PW2 at page 491 of Vol. 1 of the Record did not establish prima facie that the Appellant knowingly forged the said Resolution with intention that it should be acted upon to the prejudice of First Bank. Also, in his evidence, PW1 had stated at page 487 of Vol. 1 of the Record that Exhibit AD (PW3’s Report) relied upon by the trial Judge only dealt with the Statement of Affairs and not any Board Resolution. On cross-examination, PW1 had stated at page 487 of Vol. 1 of the Record as follows:
Pages 12 and 13 of Exhibit AD were what we used in preparing our request Forensic Analysis, the said pages where (sic) Statements of Affairs and not Board Resolution, we did not receive any Petition from Corporate Affairs Commission that the Statement of Affairs was forged. There are three signatories on both pages 12 and 13 of Exhibit AD. One of the signatories there is the Company Secretary, Alpha Genesac; Felix, the Company Secretary did not complain to us that, he was not the one who signed it. Felix is not standing trial in this case. I don’t know why he is not being tried for forgery. In preparing our request for forensic analysis Felix’s specimen signature was not taken.
(underline mine).
Given the clear evidence of PW1 that the forensic analysis made on Exhibit AD did not include any Board Resolution, the trial Judge’s conclusion, relying on the evidence of PW3, that the Appellant forged Board Resolution of Mooncrest Enterprises Ltd dated 15th April, 2011 was not backed by the evidence on record. More so, as the documents in Exhibit AD as shown at pages 410–445, confirms PW1’s assertion that the documents in respect of which handwriting analysis was done did not include any of the Board Resolutions alleged to be forged by the Appellant.
On the charge of making documents without lawful authority in Counts 33 and 35 of the 3rd Amended Information, parties have joined issues over whether the bundle of documents in Exhibit C is legally admissible and whether the learned trial Judge was right to have relied on the said bundle of documents, which comprised of the Statement of Affairs of Mooncrest Enterprises Nig. Limited, to hold that the Respondent had made out a prima facie case against the Appellant. I have considered the submissions of the parties.
As rightly observed by the Appellant, PW2 had in his testimony at pages 493–494, affirmed that Exhibits C and AD were the same and that they were photocopies of documents he obtained from the Corporate Affairs Commission. He had stated that he was not sure whether he submitted the original or photocopies to the EFCC. He had acknowledged that the name and designation of the officer that certified Exhibit C was not stated on the documents and the no evidence of payment for the certification was stated.
As rightly observed by the Appellant in paragraph 4.64 of the Appellant’s Brief of Argument, the learned trial Judge had at page 569 in Vol. 1 of the Record, made an earlier ruling rejecting in evidence a copy of judgment of the Federal High Court, Ibadan in Suit No. FHC/IB/CS/16/16: Akinyemi O. Akinola & Anor v. Mooncrest Enterprises Nig. Ltd. & 2 Ors., on the basis that same had contravened Section 104(2) of the Evidence Act, because the purportedly certified judgment neither indicated the name nor the designation of the certifying officer. The Appellant had however made a similar contention in the Appellant’s No-Case Submission at pages 650–651 of Vol. 1 of the Record, objecting to the legal admissibility of the said Exhibits C and AD on the same ground, that the bundle of documents in Exhibit C contravened Section 104(1) (2) of the Evidence Act, 2011 because the name, designation of the officer who certified Exhibit C and the amount paid to the CAC for the certification were not stated. The Appellant even referred the trial Court to the evidence of PW2 that Exhibit AD was produced from Exhibit C and it was stated that the original questioned documents were not available for analysis. The Appellant had then argued that Exhibit AD having been made from inadmissible Exhibit C, the Respondent’s allegation of forgery and uttering which those documents were meant to prove was unsubstantiated.
Instead of considering that objection in deciding the No-Case Submission, the learned trial Judge had sidelined same, despite his earlier ruling on a similar objection and instead only decided on the admissibility of a photocopy of certified true copy and then proceeded to hold at page 779 of Vol. 3 of the Record that:
Exhibit C is a photocopy of the Statement of Affairs of Mooncrest Enterprises (Nig.) Ltd. It was certified on the 17th December, 2015.
Clearly, the purported certification of the said Exhibit C did not meet the requirement of Section 104(1)(2) of the Evidence Act, 2011 relating to certification of public documents, as held previously by the learned trial Judge in relation to the copy of judgment of the Federal High Court in Suit. No. FHC/IB/CS/16/16 tendered under a similar circumstance. See: TABIK INVESTMENT LTD & ANOR v GTB PLC (2011) LPELR-3131(SC), per Rhodes-Vivour, JSC at pages 20–22, para. B. The bundle of documents in Exhibit C was therefore legally inadmissible.
Like in every adjudicatory decision, the trial Judge is supposed to take cognizance of only legally admissible evidence in making his ruling on the Appellant’s No-Case Submission. Thus, as he did in his previous ruling, the trial Judge ought to have disregarded those inadmissible documents in Exhibits C which were used in Exhibit AD, instead of relying on same in ordering the Appellant to enter her defence to the charge in Counts 33 and 35 of the 3rd Amended Information.
On the charge of conspiracy, the Record of Appeal shows that at page 770 that as contended by the Appellant, the learned trial Judge merely held that because mens rea in the offence of conspiracy is difficult to prove, the Appellant should explain her non-involvement in the counts of conspiracy to steal money, forge and utter documents. In his words, the learned trial Judge held as follows:
“In my view, the evidence led by the prosecution on the count of conspiracy an offence in respect of which its mens rea is not easy to locate unlike the actus reus which is normally visible, requires some explanation from the Defendants.”
As rightly posited, the settled principle of law is that a Defendant is presumed innocent until proven guilty and the burden is on the Prosecution to prove the guilt of the Defendant. See; Section 36(5) of the 1999 Constitution and Section 135(1)(2) of the Evidence Act, 2011 and AFOLAHAN v STATE (2017) LPELR-43825(SC), per Ogunbiyi, JSC at pages 47–48, para. E; and OKOH v STATE (2014) LPELR-22589(SC), per Okoro, JSC at pages 43–44, para. G. The learned trial Judge’s decision which simply ordered the Appellant to enter her defence to the charge of conspiracy, not because the Prosecution had made out a prima facie case of conspiracy against her, but because the mens rea of conspiracy is not easy to locate, is clearly contrary to the Appellant’s right to presumption of innocence.
Conspiracy is the agreement or meeting of the minds of the alleged conspirators. Given the difficulty of its actual proof, it is generally inferred from the actions of the parties concerned. See: NJOVENS v STATE (1973) LPELR-2042(SC), per Coker, JSC at page 57, para. A. Given the failure of the Respondent to establish a prima facie case for the charges of the substantive offences of stealing, forgery and uttering brought against the Appellant, there was clearly no evidence produced by the Respondent to substantiate the charge of conspiracy against the Appellant.
It has been severally held that where there is no evidence establishing the essential element(s) of the offence, a submission of no case to answer must succeed. See: UBANATU v COP (2000) LPELR-3280(SC), per Wali, JSC at page 21, paras. A–A; OGUNRONBI v FRN (2014) LPELR-24391(CA), per Okoronkwo, JCA at page23, para. C; and OLAWALE AJIBOYE & ANOR v THE STATE (1995) 8 NWLR (Pt. 414) 408.
Section 357 of the Administration of Criminal Justice Law of Oyo State, “where at the close of evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence, the Court shall, as at that particular stage, discharge being guided by the provision of Section 302 of the Law. See also: OLAWALE AJIBOYE & ANOR v THE STATE (supra).
In the instant appeal, it is evident from the Record of Appeal that not only are counts 2–15 of the 3rd Amended Information incompetent, the Respondent have failed to establish with credible evidence the vital ingredient of those counts relating to the ownership of the money allegedly stolen. It is also evident that the Respondent had not led admissible and credible evidence on the charges brought against the Appellant for stealing and conspiracy to steal (Counts 1–15), forgery, conspiracy to forge and uttering of Board Resolutions and Statement of Affairs (Counts 33–36) of the 3rd Amended Information.
It is for all the above reasons that I resolve the sole issue in favour of the Appellant and hold that having regard to the Information and the evidence led, the trial Judge was wrong in calling on the Appellant to enter her defence to the charges brought against her in the 3rd Amended Information. This appeal therefore, succeeds. It is hereby accordingly allowed. The ruling of the trial Court delivered on 16th October, 2020 in Suit No. I/2/EFCC/2017: FRN v (1) VERA OLUBUNMI MAYOMI AKINOLA (Appellant), AND (2) OLUYOMI MAYOMI AKINOLA, directing the Appellant to enter her defence in respect of the charges in the 3rd Amended Information, is set aside. In its place, the Appellant’s No-Case Submission is upheld and the Appellant is hereby discharged on the Counts 1–15 (conspiracy to steal and stealing) and Counts 33–36 (conspiracy to forge, forgery and uttering of Board Resolutions and Statement of Affairs) with which she was charged in the 3rd Amended Information.
FOLASADE AYODEJI OJO, J.C.A.: I have read before now, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA. I completely agree with him that the appeal has merit and should be allowed.
It is settled law that the Information filed against an Accused Person is a comprehensive document which must contain, the charge, statement of offence and particulars of the offence. See UWAZURUIKE VS. ATTORNEY-GENERAL FEDERATION (2013) 10 NWLR (PT. 1361)105; FEDERAL REPUBLIC OF NIGERIA VS. IBORI (2014) 13 NWLR (PT. 1423) 168; EDET VS. STATE (2008) 14 NWLR (PT. 1106) 52.
The law is further settled that where a charge lacks precision and embarrasses an Accused Person/Defendant, a conviction thereunder will be quashed. The charge must contain the words used in the relevant law under which the Accused is charged. The elements or ingredients which constitute the offence charged must be explicit and not left to speculation or inference. See RODA VS. FEDERAL REPUBLIC OF NIGERIA (2015) 10 NWLR (PT. 1468) 427; ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399) 30: ENAHORO VS THE QUEEN (1965) ALL NLR 132; OKEKE VS. INSPECTOR GENERAL OF POLICE (1965) 2 ALL NLR 81: THE QUEEN VS. GBADAMOSI (1959) 4 FSC 181.
In the instant appeal, The Appellant was arraigned pursuant to the 3rd Amended Information laid before the Court. In Counts 2-25 of the 3rd Amended Information, the Appellant was alleged to have stolen the sum of One Hundred and Seventy-Nine Million, One Hundred and Twenty Five Thousand Naira (N179,125,000) owned by one Mooncrest Enterprises Nigeria Limited. In the said Counts i.e. Counts 2-25, the Prosecution stated the Appellant converted the sum of money allegedly stolen to her use but failed to state she fraudulently converted the money.
In ONAGORUWA VS STATE (1993) 7 NWLR (PT. 303) 49 AT 86, PARAGRAPHS C-D, this Court held, per Tobi, JCA (as he then was) that in order to succeed in a charge of stealing, the prosecution must establish the following particulars: (a) The owner of the thing stolen, (b) That the thing stolen is capable of being stolen, (c) That it was fraudulently taken or fraudulently converted.
In the instant appeal, failure to include the words “fraudulently converted” in the Counts of the Charge alleging the offence of stealing was very fatal. The Charge is defective. In the circumstance, the Prosecution cannot be held to have established a prima facie case against the Appellant and the trial Judge erred when he asked him to enter his defence to Counts 2-25 of the 3rd Amended Information.
It is for the foregoing and the fuller reasons contained in the lead judgment that I also set aside the decision of the trial Court. I abide by all the consequential orders contained in the lead judgment.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: My learned brother, ABBA BELLO MOHAMMED, JCA, has made available to me, before now, a draft copy of the lead judgment prepared by him. I am at one with the lead judgment that the appeal has merit and deserves to be allowed. I agree with the reasoning of my lord that the 3rd Amended Information under which the Appellant was tried was incompetent in that not all the essential elements, particularly, the crucial element of fraud/fraudulent conversion of the offence of stealing at counts 2-15 was stated or incorporated in the said Information. I also agree that no prima facie case has been made out by the prosecution in the entire counts for which the Appellant was tried, to warrant calling her to enter into a defence. In allowing the appeal and upholding the no case submission, I adopt the in-depth legal analysis and reasoning of my learned bother, MOHAMMED, JCA, as mine.
Appearances:
Prof. Osipitan, SAN, with him, Mrs. Olayemi Badewole For Appellant(s)
Festus Ojo, Esq. For Respondent(s)