AKINOLA v. FRN
(2022)LCN/16150(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, April 08, 2022
CA/IB/128C/2021
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
OLUYOMI MAYOMI AKINOLA APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE DUTY OF THE COURT WHEN CALLED TO CONSIDER 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.
THE ELEMENTS OF THE OFFENCE OF STEALING
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. PER MOHAMMED, J.C.A
WHETHER OR NOT A 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.
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…” PER MOHAMMED, J.C.A
THE POSITION OF LAW ON NO-CASE SUBMISSION
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. 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 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 the Additional Record of Appeal transmitted on 21st June, 2021 and deemed properly transmitted on 20th September, 2021.
Dissatisfied with the ruling 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 Appellant also sought leave of this Court to rely on the Record of Appeal transmitted to this Court on the 22nd of January, 2021 in a sister Appeal No. CA/IB/417C/2020, which was also deemed properly transmitted on the 20th of September, 2021. The Appellant also transmitted an Additional Record of Appeal on 21st June, 2021 which was deemed properly transmitted on 20th September, 2021.
Parties filed and exchanged briefs of argument. The Appellant’s Brief of Argument was filed on the 30th of September, 2021, while that of the Respondent filed on 26th October, 2021. The Appellant’s Reply Brief was filed on the 1st of November, 2021.
The Appellant distilled a sole issue for determination, namely –
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 – 2 (stealing by conversion and conspiracy to steal); Counts 16 – 23 (Receiving Stolen Property); Counts 24 – 28 (Conspiracy to forge, Forgery of Board Resolutions, Uttering and Fraudulent Uttering of Resolution of Mooncrest Enterprises Ltd dated 3/3/2014).
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 sole issues raised by the parties are essentially the same, but for the words used in couching them. Being more precise however, I shall adopt the issue raised by the Appellant in deciding the appeal.
SUBMISSIONS OF THE APPELLANT:
Learned Senior Counsel for the Appellant pointed out that in counts 2 and 16 – 23 of the 3rd Amended Information, the Appellant was alleged to have stolen and also received stolen property belonging to Mooncrest Enterprises Nigeria Ltd. The Appellant however, contended that the position of the Prosecution as reflected in the particulars of the said Counts 1, 2, 16 to 23 of the 3rd Amended Information as regards the ownership of the monies by Mooncrest Enterprises Ltd was diametrically in conflict with the evidence adduced by the Prosecution at trial, especially the testimonies of PW8 and PW9, which was to the effect that the monies belong to A. G. Leventis Ltd.
Learned Senior Counsel particularly referred this Court to the evidence of PW8 where he stated that “We still regard it as our money having not concluded the transaction.” Counsel also referred to the evidence of PW9, a director of Mooncrest Enterprises Ltd, who stated that “The N207 Million belings to Leventis.” Counsel submitted that notwithstanding the evidence of PW8 and PW9 on the ownership of the money by A.G. Leventis Nig. Ltd and not by Mooncrest Enterprises Ltd as particularized in Counts 1, 2, 16 – 23 of the 3rd Amended Information, the learned trial judge overruled the Appellant’s No-Case Submission and called upon the Appellant to enter her defence to the said counts.
Learned Senior Counsel also drew the attention of the Court to the fact that under Counts 16 to 23 of the 3rd Amended Information the several sums of money which the Appellant was alleged to have received as stolen property are the same monies which the Appellant is alleged to have stolen under Count 2 of the 3rd Amended Information.
With regard to the allegations of stealing and receiving stolen money, the property of Mooncrest Enterprises Ltd. as stated in Counts 2, 16 – 23 of the 3rd Amended Information, learned Senior 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 be 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, 16 – 23 of the 3rd Amended Information, it was identically alleged that the various sums of money alleged to have been stolen converted or received 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 (1993) LPELR-43436(CA), 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 Count 2, the prima facie evidence that the money belong to Mooncrest Enterprises Nigeria Ltd is indispensable, and the Respondents had failed to establish that fact; rather, the evidence point to ownership of the monies by A. G. Leventis Ltd and not Mooncrest Enterprises Ltd., as alleged in the charge. 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.
With regard to the allegation of receiving several sums of money stolen property of Mooncrest Enterprises Nigeria Limited in Counts 16 – 23, learned Senior Counsel referred to Section 427 of the Criminal Code of Oyo State and the cases of OKOROJI v STATE (2002) 5 NWLR (Pt. 759) 21 at 47 48, paras. G – E, AYEFIGBO v THE STATE (2018) LPELR-45140(CA), R v CREAMER (1991) 1 KB 564 and R v WALTER HUNT (1951) 2 All ER 645, where the ingredients of the offence of receiving stolen property were stated. He reiterated his above earlier argument made in respect of stealing and submitted that the Respondent had failed to adduce prima facie that the monies allegedly were stolen or obtained by means of a felony and that the said monies belong to Mooncrest Enterprises Nigeria Limited. He particularly referred this Court to the evidence of PW7 at page 530 of Volume 1 of the Record where he stated that: “I don’t believe that the 1st Defendant stole the said sum of N206,000,000.” Counsel argued that this is a complete negation of the allegation that the said money was stolen and by extension a negation of the allegation that the Appellant received stolen money.
Learned Counsel further submitted that PW8 and PW9 have testified that the said money belong to A.G. Leventis Limited and as such the ownership by Mooncrest Enterprises Ltd of the money allegedly received was not established. He added that it was also not established that the monies were obtained from A.G. Leventis by means of a felony. Counsel submitted that the essential ingredient of the offence which is ownership of the monies received by Mooncrest Enterprises Nig. Ltd and obtaining the allegedly stolen money through means of a felony were not prima facie established.
Learned Counsel also submitted that there is no evidence on record to the effect that the Appellant received the money allegedly stolen with the guilty knowledge that the money allegedly belonging to Mooncrest Enterprises Nig. Ltd. was stolen. He argued that where in this case Counts 16 – 23 do not allege fraudulent receipt of money by the Appellant or state from whom the Appellant received the said money, no prima facie case would have been made out.
Learned Counsel pointed to the finding of the learned trial judge at page 776 of Volume 3 of the Record wherein he held that: “there, in my view lie the interest of Mooncrest in keeping the money safe and intact.” Counsel argued that this is an admission by the trial Court that the Respondent failed to adduce evidence to establish prima facie the ownership by Mooncrest Enterprises Nig. Ltd of the monies allegedly stolen under Count 2 and allegedly received under Counts 16 – 23 of the 3rd Amended Information. Relying on the cases of ONAGORUWA v STATE (supra) and IPALIBO v STATE (supra), Counsel submitted that the learned trial judge had imported into the Counts 2 and 16 – 23 extraneous element or ingredient of “interest of Mooncrest in keeping the money safe and intact” which is neither a statutory nor a pleaded ingredient of the offences charged in those counts and the parties never addressed the trial Court on that. Further relying on CLAY IND. NIGERIA LTD v AINA & ORS (1997) 8 NWLR (Pt. 516) 208 OLAOLU v FRN (2015) LPELR-24778(SC) and ARIJE v FRN (2013) LPELR-22125(CA), he submitted that the learned trial judge was wrong in rejecting the Appellant’s No-Case Submission on the said Counts.
On the allegation in count 2 of converting the sum of N179,125,000.00, Counsel pointed out that in count 2 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 it must reflect fraudulent taking or fraudulent conversion. Relying on the cases of LOBEN INVESTMENT COOPERATIVE MULTIPURPOSE SOCIETY v FRN (2019) LPELR-47325(CA), he argued that the Prosecution failed to plead the essential ingredient of the offence of stealing as no prima facie evidence was led by them and the trial judge ought to have allowed the Appellant’s No-Case Submission on the said count 2.
Counsel particularly pointed to the evidence of PW5 at pages 519 in Vol. I 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 offence in counts 2, even if it is assumed that fraudulent intent was pleaded. He added that the testimony of PW5 to the effect that the monies allegedly stolen were in custody of First Bank Plc the respondent had failed to establish prima facie evidence that the Appellant had acted with intent to permanently deprive Mooncrest Enterprises Nig Ltd of the said money. He cited LOBEN INVESTMENT COOPERATIVE MULTIPURPOSE SOCIETY v FRN (supra), and submitted that the learned trial judge wrongly overruled the Appellant’s No-Case Submission and called upon the Appellant to enter her defence to count 2.
On the offences of forgery and uttering of board resolutions 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. I 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, 2, 16 – 23, 27 and 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 intention that is 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 pointed to the testimony of PW1, the investigating officer at page 487 Vol. 1 of the Record to the effect that there was no complaint against the Appellant and Yewande Akinola for forgery of Board Resolution. He submitted that no evidence was adduced by Prosecution to support Count 26 alleging that the Appellant conspired with the 1st Defendant and Yewande Akinola to utter a forged Mooncrest Enterprises Nig. Ltd. Board Resolution dated 15th April, 2011 to First Bank of Nigeria Plc as alleged in that Count. He concluded by submitting that the Respondent had adduced no evidence to substantiate the allegations of conspiracies. He urged the Court to resolve the sole issue in favour of the Appellant and allow the appeal by upholding her No-Case Submission.
SUBMISSIONS OF THE RESPONDENT:
In his counter submissions, learned Counsel for the Respondent, Festus Ojo Esq., cited the cases of AJULUCHUKWU v STATE (2014) All FWLR (Pt. 749) 1015 and 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 Vera Akinola (who was the 1st Defendant at the trial Court and mother of the Appellant) 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 1st 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 posited that through Exhibit F, it was shown at the trial Court at page 99, 100 and 101 of Vol. 11 of the Record that the Appellant was part of a syndicate that used account no. 3095697827 to fraudulently obtain about N206,000,000 meant to be paid to the authorized company’s account no. 2001754957 and some of the funds were transferred to the Appellant. Counsel submitted that the Counsel for the Appellant may claim that the will of late Chief Jonathan Akinola who is the father of PW2, PW9 and the Appellant and husband of the 1st Defendant had given total ownership of Mooncrest to the 1st Defendant and by extension her children, but the available facts state otherwise. Counsel further submitted that the argument of the Appellant that this is a civil matter of family affairs 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 1st 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.
On the charge of receiving stolen property, Counsel submitted that having adduced sufficient evidence to prove stealing against the 1st Defendant, the offence of receiving stolen property against the Appellant is invariably established upon showing that part of the stolen funds ended up in her account. He argued that the Prosecution have tendered cogent and compelling evidence that the Appellant received the proceeds of the stolen money in little less that N10 Million. As for argument that the Respondent did not prove that the Appellant knew the money was stolen, Counsel submitted that the Appellant knew that she was not a Director of Mooncrest Enterprises Ltd, yet she purportedly signed the Bank signature mandate as a Director to enable the stealing of those monies and thereafter received part of the money in her personal account. He argued that knowledge that property was stolen can be inferred from circumstances as revealed by evidence. He particularly referred to Counts 16, 17 and 18 and Exhibit F at page 99 of Vol. 2 of the Record where the Appellant was stated to have received N1,500,000.00; N1,000,000.00 and N1,500,000.00 respectively. He added that all the amounts of monies stated on Counts 16 – 23 were received by the Appellant from the 1st Defendant through Bank transfer.
On Counts 24 – 28 relating to forgery and uttering, Counsel argued that the Prosecution had presented sufficient evidence to show that the Appellant was among the people that forged Extract of Board resolution dated 3rd March, 2014 where her signature is contained as a Director and she never denied signing it. He referred to Exhibit F at page 105 of the Record. He argued that the Appellant had misconstrued 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, and ONODAVWERHO v FRN (2019) LPELR-47185(CA), and argued that the PW2 and PW9 have led evidence that they did not authorize the Appellant or her co-defendants to sign any document on their behalf. He submitted that the Board Resolution, the Bank’s Signature Mandate and the Statement of Affairs were all false documents uttered to various persons in fraudulent circumstances. He finally urged the Court to dismiss the appeal and uphold the decision of the trial Court.
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 argument 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 in conjunction with others conspired among themselves to steal the proceeds of the sale of a large expanse of land belonging to Mooncrest Enterprises Nig. Ltd. were raised for the first time by the Respondent.
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., or that the Appellant and other persons fraudulently obtained the sum of about N206 Million. He added that there is no evidence on record to the effect that Appellant forged signature mandate of Mooncrest Enterprises Ltd. and 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 of 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 on 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 the Appellant’s Brief of Argument. He pointed out that the failure of Respondent to adduce evidence to establish ownership by Mooncrest Enterprises Nig. Ltd. of the monies which are the subject of the conspiracy charge under Count 1 and allegedly stolen/received in Count 2 and Counts 16 – 23 of the 3rd Amended Information, and the discredited evidence of the Respondent where Pw8 and PW9 testified contrary to the charge, as well as the trial Court’s finding that: there, in my view lie the interest of Mooncrest in keeping the money safe and intact” it was clear that the Respondent had failed to establish essential ingredients of the offences and have also failed to establish prima facie the offences, their evidence having been discredited and rendered unreliable under cross-examination.
Counsel also 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 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 conceding to 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 Appellant never conceded that she received a little less than N10 Million from the over N206 Million as misrepresented by the Respondent’s Counsel. He added that contrary to the Respondent’s reliance on OKAFOR v STATE (supra), the Supreme Court’s decision in that case which restated the guidelines for upholding a no-case submission, supports the case of the Appellant, to the effect that essential elements of the offences against the Appellant were not established prima facie 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 of the 3rd Amended Information which he made in item (B), paragraphs 4.26 – 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 like 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 of 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 count 2 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.
As can be seen, the charge of stealing in count 2 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 383(1) of the Criminal Code of Oyo State and reiterated in ONWUDIWE v FRN (supra), it is the element of fraud in the conversion that distinguishes the offence of stealing from the tort of conversion. Thus, for the offence of stealing to be properly constituted under Section 383(1) of the Criminal Code of Oyo State, 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 recent 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 in 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 inI PALIBO 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 bySection 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 383(1) 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 charge against the Appellant in Count 2 as couched does 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 question 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 and Receiving Various Sums of Money Belonging to Mooncrest Enterprises Nig. Ltd stated in Counts 2, 16 – 23 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, 16 – 23 of the 3rd Amended Information contained at pages 659 and 673 – 675 of the record, respectively, the Appellant was charged with stealing in count 2 and receiving stolen monies, property of Mooncrest Enterprises Nig. Ltd. The first contention of the Appellant in relation to those counts is that the Respondents who alleged in the charge of stealing against the Appellant that the money allegedly stolen was owned by Mooncrest Enterprises Nigeria Limited, have not only failed to establish that fact, but PW8 and PW9, the Respondent’s witnesses, gave contrary evidence to the effect 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 4.1 – 4.24 of the Appellant’s Brief of Argument were 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 learned Counsel for the Respondent had, in his Brief of Argument, embarked on making broad arguments in justification of the decision of the trial Court and failed to effectively respond to the specific issues or points raised by the Appellant.
It is trite that appeals are argued on the parties’ briefs of argument, and specific 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. In response to the argument over the proof of ownership of the money by Mooncrest Enterprises Nig. Ltd., the Respondent’s Counsel merely repeated the allegation in the charge 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 charge of stealing in Count 2 and receiving stolen monies in Counts 16 – 23 of the 3rd Amended Information, it is stated that the money allegedly stolen or received by the Appellant 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 or received by the Appellant 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 or received is an imperative ingredient to the establishment of the offence of stealing and receiving stolen property.
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.
Also in YONGO & ANOR v C.O.P (1992) LPELR-3528(SC), the Supreme Court, per Karibi-Whyte, JSC restated the ingredients of receiving stolen property, thus:
“The essential ingredients of the offence which the prosecution is required to prove in order to secure a conviction under this Section are: 1. That the property in question is stolen property. 2. That the accused received or retained such property. 3. That he did so dishonestly. 4. That he knew or had reason to believe that the property was stolen property. It is only where these essential ingredients are satisfied that a conviction under Section 317 of the Penal Code can be sustained.
See also STATE v NNOLIM & ANOR (1994) LPELR-3222(SC), per Adio, JSC at pages 21 – 22, para. G.
In the instant case, the Respondents have alleged in the charge of stealing and receiving stolen property against the Appellant in Counts 2 and 16 – 23 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.
It is therefore clear that with the contrary evidence given by PW8 and PW9 as to the ownership of the money allegedly stolen and th asesertion 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 or receiving stolen money against the Appellant in Counts 2 and 16 – 23, even if the said charge in Count 2 of the 3rd Amended Information was 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 acknowledgement 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 in Count 2 is not only incompetent, the ownership of the money which is an essential ingredient of the charge of stealing in Count 2 and the charge of receiving stolen money in Counts 16 – 23, which were brought against the Appellant, was not prima facie established in view of the contrary evidence as to the ownership of the money given by PW8 and PW9, the Respondent’s witnesses.
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 in Count 2 and receiving stolen monies in Counts 16 – 23 of the 3rd Amended Information. Based on the evidence in the printed Record of Appeal, the Appellant’s No-Case Submission was clearly made out in relation to the allegation of stealing in Count 2 and receiving stolen property in Counts 16 – 23 of the 3rd Amended Information. The learned trial was therefore 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 in counts 27 and 28 to have forged and uttered Board Resolution of Mooncrest Enterprises Nigeria Limited dated 3rd March, 2014 to First Bank of Nigeria Plc in order to open a Savings Plus Account.
It was contended on behalf of the Appellant that the trial judge misdirected himself on the evidence adduced on record by the Respondent’s witnesses regarding the said Resolution of Mooncrest Enterprises Nigeria Limited dated 3rd March, 2014. It was posited that contrary to the learned trial judge’s decision that the Respondent’s case was that the Appellant, 1st Defendant and Yewande Akinola forged the Board Resolution of Mooncrest Enterprises Nigeria Limited dated 3rd March, 2014, the evidence adduced by the Respondent on the Record especially by PW6 (the Company Secretary of Mooncrest Enterprises Nig. Ltd) is not supportive of the learned trial judge’s decision. It was argued that based on PW6’s testimony as regards Board Resolution of Mooncrest dated 3rd March, 2014 the learned trial judge ought not to have called the Appellant to enter her defence to Counts 1, 2, 16 to 23, 24, 27 and 28 of the 3rd Amended Information.
On this 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 thereon 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 in line with the trite position of the law. His above finding thereon is therefore, perverse to the evidence on record. I so hold.
Also as rightly noted by the Appellant the learned trial judge had during proceedings rejected in evidence the account opening documents of the savings plus account when the Prosecution sought to tender same through PW5, on the ground that they did not comply with the mandatory provisions of the Evidence Act, 2011. (See pages 514 – 515 of Volume 1 of the Record). Having rejected those documents, there was no admissible evidence on record regarding the opening of the savings plus account either by the 1st Defendant or the Appellant. Therefore, the Respondent failed to establish prima facie that the Appellant uttered the said Resolution dated 3rd March, 2014 to First Bank of Nigeria Plc by making use of same to open savings plus account.
The learned trial judge was therefore wrong to hold at pages 774 – 775 of the Additional Record of Appeal that his understanding of the respondent’s case is that the Appellant, 1st Defendant and Yewande Akinola forged Board Resolution of Mooncrest dated 3rd March, 2014 which enabled them to open the savings plus account, solely controlled and operated the said account to the exclusion of PW2 and PW9, paid the sum of N206,000,000 which came from A.G. Leventis into the account from which they carried out several transactions thereby warranting the Appellant to be called upon to enter her defence.
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 4.43 of the Appellant’s Brief of Argument, that the Prosecution witnesses never adduced evidence that the Appellant knowingly forged Mooncrest Enterprises Nig. Limited Board Resolution dated 15th April, 2011 and that contrary to the learned trial judge’s finding, that PW9 disowned the said Board resolution, PW9 never did so and never testified that the Appellant signed the said Resolution. The failure of the Respondent to respond to those contentions also amounts to conceding those contentions of the Appellant.
As rightly observed by the Appellant, the testimony of PW1 at page 487 of Volume 1 of the Record that: “There was no any complaint against the 2nd Defendant for forgery; the 2nd Defendant was also not mentioned in the petition to have stolen money”, as well as the evidence of PW2 at page 491 of Volume 1 of the Record that Mooncrest Resolution dated 15th April, 2011 “was addressed to First Bank, it was signed by the 1st Defendant” had failed to establish prima facie that the Appellant knowingly forged and uttered the said Board Resolution to First Bank of Nigeria Plc as alleged in Counts 25 and 26 of the 3rd Amended Information.
It is also instructive that testimony and report of PW3 (Exhibit AD) which was relied upon by the learned trial judge in relation to the said Counts 25 and 26 can only be restricted to the examination of Statement of Affairs of Mooncrest Enterprises Nig. Ltd since from the record, PW3 never carried out a handwriting analysis on the Resolution of Mooncrest dated 15th April, 2011. The disputed documents in Exhibit AD which were analysed by PW3 did not include Mooncrest Resolution dated 15th April, 2011. On cross-examination, PW1 had clearly 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.
(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. The learned trial judge’s reliance on evidence of PW2, PW9 and PW3 and Exhibit AD in ordering the Appellant to enter defence is faulty.
It is also pertinent to observe that the Appellant had in paragraph 4.46 of the Appellant’s Brief of Argument raised issue of legal inadmissibility of Exhibit AD and whether the learned trial judge was right to have relied on same having failed to meet the requirement of Section 104(1)&(2) of the Evidence Act. 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. PW2 had then acknowledged that the name and designation of the officer that certified Exhibit C was not stated on the documents and that no evidence of payment for the certification was stated.
I observe that the Appellant had 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.
I also observe that at page 569 in Vol. 1 of the Record, the learned trial judge had during proceedings sustained a similar objection to the admissibility of 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., and rejected same in evidence on the ground 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.
However, instead of considering the Appellant’s similar objection to the admissibility of Exhibits C and AD made in the Appellant’s No-Case Submission on the same grounds, the learned trial judge sidelined same and instead only decided on the admissibility of a photocopy of a 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 previously acknowledged and held 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 and Exhibit AD which was made therefrom were 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 fols:low
“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 theDefendants.”
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, or the evidence led is severely discredited that no conviction can be based on it, 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 is counts 2 of the 3rd Amended Information incompetent, the Respondent have failed to establish with credible evidence the vital ingredient relating to the ownership of the money allegedly stolen by Mooncrest Enterprises Nig. Ltd in respect of stealing in Count 2 and of receiving stolen money in Counts 16- 23. It is also evident that the Respondent had not led admissible and credible evidence on the charges brought against the Appellant for the offences of conspiracy in counts 1, 24 and 26, and stealing, receiving stolen property, forgery and uttering in Counts 2, 16 – 23, 25, 27 and 28 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 Respondent had not made out a prima facie case against the Appellant and 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, AND (2) OLUYOMI MAYOMI AKINOLA (Appellant), 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 said Counts with which she was charged in the 3rd Amended Information.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA. His Lordship has dealt exhaustively with all the issues in the appeal and I have nothing useful to add.
Consequently, I too join in holding that this appeal has merit and I also allow it. I abide by the consequential orders made in the lead judgment.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had the opportunity of reading in draft the lead judgment prepared and just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA. I am in total agreement with his reasoning and conclusion that the Respondent has failed to make out a prima facie case to warrant calling on the Appellant to enter into her defence. I have nothing useful to add to the legal justification for allowing the appeal by my learned brother. I too allow the appeal and set aside the ruling of the lower Court wherein the Appellant was directed to enter into her defence. I abide by the order made in the lead judgment.
Appearances:
Prof. Osipitan, SAN, with him, Mrs. Olayemi Badewole For Appellant(s)
Festus Ojo, Esq. For Respondent(s)