AMINU MUSA OYEBANJI v. THE STATE
(2011)LCN/4644(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 22nd day of June, 2011
CA/I/199/02
RATIO
OFFENCE OF STEALING: WHAT THE PROSECUTION MUST PROVE IN ORDER TO SUSTAIN A CHARGE OF STEALING AGAINST AN ACCUSED PERSON
To sustain a charge of stealing against an accused person, the prosecution must prove: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused was dishonest and (d) that the accused had unlawfully appropriated the thing stolen to his own use See the cases of OTTI VS. THE STATE (1997) 1 N.W.L.R. part 207 Page 103 at 118 and MUHAMMED VS. THE STATE (2000) F.W.L.R. Part 30 Page 2623 at 2626. PER MODUPE FASANMI, J.C.A.
OFFENCE OF STEALING: WHAT DOES THE OFFENCE OF STEALING OCCUR
On ingredients of offence of stealing, the offence of stealing occurs when a person fraudulently converts to his own use or to the use of any other person anything capable of being stolen. PER MODUPE FASANMI, J.C.A.
PROOF BEYOND REASONABLE DOUBT: WHETHER ONUS OF PROVING A CRIMINAL CASE BEYOND REASONABLE DOUBT REQUIRES THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED BEYOND ALL SHADOW OF DOUBT
The onus of proving a criminal case beyond reasonable doubt does not require the prosecution to prove the guilt of the accused beyond all shadow of doubt. It is enough if the evidence before the court has proved the ingredients of the offence and it is sufficient to establish the guilt of the accused. See the case of KAJUBO VS. THE STATE (1988) 1 N.W.L.R. Part 73 Page 721 at 723. PER MODUPE FASANMI, J.C.A.
INTERFERENCE WITH FINDING OF FACTS: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL LACK THE POWER TO INTERFERE OR DISTURB THE FINDINGS OF FACT MADE BY THE LOWER COURT
An Appellate court lacks the power to interfere or disturb such findings of fact particularly when such findings are supported by the evidence on record. See the cases of IWUOHA & ANOR v. NIGERIAN POSTAL SERVICES LTD. & ANOR. (2003) 28 W.R.N. at Page 11 and EDOHO VS. THE STATE (2010) 40 W.R.N. Page 7 at 36 Lines 5-15. PER MODUPE FASANMI, J.C.A.
JUSTICES
STANLEY SHENKO ALAGOA Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
Between
AMINU MUSA OYEBANJI Appellant(s)
AND
THE STATE Respondent(s)
MODUPE FASANMI, J.C.A. (Delivered the Leading Judgment): This is an appeal against the judgment of an Oyo State High Court of Justice sitting at Ibadan delivered on the 30th of October 1992. Appellant was found guilty of
the offence of stealing. He was convicted and sentenced to five years imprisonment with hard labour or five thousand naira (N5,000:00k) in lieu. The conviction gave rise to the instant appeal.
The facts of the case are that Appellant is the Managing Director of Bamico Nig Ltd. The Director of the Associated Commodities and Foodstuff (Nig.) Ltd. paid him a total sum of One Million, One Hundred and Eighty Thousand, Five Hundred and Ninety Three Naira, Seventy Five Kobo (N1,180,593 : 75 k) to import tyres, tubes and granulated sugar, as the Association could not get the foreign exchange to procure the goods. The money was paid in several instaltments as follows;
(a) N22,500:00k on 22/8/06
(b) N30,000:00k on 16/8/07
(c) N516,000:00k on 30/3/87
(d) N6,000:00k on 11/8/87 and
(e) N606,000:00k on 23/7/88
A letter of credit was issued in favour of the Appellant by the Nigerian Merchant Bank which expired on the 10th of April 1987, even before the Appellant collected the 2nd payment which was evidenced by exhibit 7 from the Associated Commodities and Foodstuff (Nig.) Ltd. The letter of credit was never renewed. Appellant never refunded the various sums of money collected nor supplied the goods paid for.
After repeated demands which were ignored by the Appellant, an action was filed at the Oyo State High Court of Justice Ibadan. Appellant was found guilty and convicted as charged for the offence of stealing.
Dissatisfied with the judgment, Appellant filed the notice of appeal. On the 10th of May 2011 when this appeal was heard, briefs of arguments were adopted by both sides of the divide.
The two issues couched for determination of the appeal by the Appellant read as follows:
(1) Whether or not the transaction between the Association and the Bamico Nigeria Limited was contractual or otherwise;
(2) Whether from the facts, evidence and circumstances of this case the accused person ought to have been charged, tried and convicted of the offence of stealing.
The Respondent also distilled two issues for determination as follows:
(i) Whether or not in view of the criminal dimension involved in the instant appeal, the relationship between the Association and Bamico Nigeria Limited should be treated as contractual in nature simpliciter;
(ii) Whether or not the Appellant was properly charged, tried and convicted of the offence of stealing.
The issues formulated by the parties are similar in nature but couched differently. The court will be guided by the issues formulated by the Respondent in the determination of the appeal.
On behalf of the Appellant, learned counsel in the consideration of the two issues argued them together.
Learned Counsel for the Appellant submitted that the transaction between the Associated Commodities and Foodstuff (Nigeria) Limited and Bamico Nigeria Ltd wars purely contractual and does not amount to stealing on the part of the Appellant. Evidence led at the trial confirmed that officers of the Associated Foodstuff Company approached Bamico Nigeria Limited for assistance in the importation of tyres, tubes and granulated sugar. Therefore if the first company paid money to the second company and the later failed to fulfill its own part of the transaction, then the first party’s right is to institute an action against the second party for money had and received for a consideration that has totally failed. Submitted that civil action should have been instituted against the Appellant and not a charge of stealing.
He submitted further that the Appellant could not have been convicted under Section 383(1) of the Criminal Code because of the absence of any intention to fraudulently take or convert the money to his own use. The evidence showed that the Respondent voluntarily paid out the money to the Appellant. This removes any possibility of a charge of stealing or the inference as drawn in this case. It is the duty of the Respondent to prove the charge of stealing against the Appellant beyond reasonable doubt. Submitted that the offence was not proved as required by law beyond reasonable doubt. There was no fraudulent intent on the part of the Appellant vis-a-vis the cash paid to him for the purpose of purchasing (importing) tyres, tubes and granulated sugar for the Respondent’s Company. Learned Counsel for the Appellant urged the court to resolve the two issues in favour of the Appellant, discharge and acquit the Appellant of the offence of stealing for which he has been wrongly convicted.
Learned Counsel for the Respondent submitted that the dealing between the Appellant and the complainant was intended to be purely contractual in nature. However in the course of interacting with each other, Associated Commodities and Foodstuffs Ltd effected payments of money to the tune of One Million, One Hundred and Eighty Thousand, Five Hundred and Ninety Three Naira only to the Appellant.
It is submitted that the Appellant who collected the aforesaid sum of money from the Associated Commodities and Foodstuffs Ltd failed to supply the required goods and return the money paid to the Associated Commodities and Foodstuffs (Nig.) Ltd., has committed an offence of stealing by conversion. He referred to the evidence of witnesses called by the Respondent in this case. P.W.2 Julianah Titilola Raimi at page 32 lines 21-23 of the record of proceedings testified thus:
“The accused told us that granulated sugar has arrived hence we made the 2nd payment and we also insisted for a receipt”.
He argued that the contention of the Appellant’s Counsel that the relationship is contractual and that only civil action should be commenced to resolve the subject matter of the dispute is misconceived. The offence of stealing was proved against the Appellant beyond reasonable doubt in view of the unchallenged evidence of the prosecution witnesses. It is enough if the out is satisfied that the evidence before him has proved the ingredients sufficient to establish the guilt of the accused. He referred to the case of OTTI VS. THE STATE (1991) 8 N.W.L.R. Part 207 Page 103 at 118 Paragraphs E-F. Learned Counsel for the Respondent urged the court to hold that all the conditions laid down by both the statute and judicial authorities to be fulfilled to secure conviction for the offence of stealing by conversion are present in the instant appeal. Learned Counsel for the Respondent urged the court to hold that the Appellant was properly charged, tried and convicted. He urged the court to resolve the two issues in favour of the respondent and uphold the judgment of the lower court.
To sustain a charge of stealing against an accused person, the prosecution must prove:
(a) that the thing stolen is capable of being stolen;
(b) that the accused has the intention of permanently depriving the owner of the thing stolen;
(c) that the accused was dishonest and
(d) that the accused had unlawfully appropriated the thing stolen to his own use
See the cases of OTTI VS. THE STATE (1997) 1 N.W.L.R. part 207 Page 103 at 118 and MUHAMMED VS. THE STATE (2000) F.W.L.R. Part 30 Page 2623 at 2626.
The evidence of the witnesses called by the Respondent and exhibits tendered during the trial of this case before the lower court corroborate the fact that money was paid to the Appellant to import good year tyres, tubes and granulated sugar or behalf of the Associated Commodities and Foodstuffs Ltd. P.W.2 Julianah Titilope Raimi at page 30 lines 22-31 of the record stated thus:
“On 19th March 1987 my company paid accused company N516,000.0k for my purpose of ordering tyres and tubes for my company. Also in June 1988 my company paid another sum of N606,093:75k to accused’s company for granulated sugar.
Accused did not issue a receipt in respect of the first payment of N516,000:00k. Accused issued a receipt in respect of the second payment of N606,093:75k after much pressure”.
It is crystal clear from the above evidence that the contract for the importation of Good Year Tyres, Tubes and Granulated Sugar was entered into between the Appellant and the Associated Commodities and Foodstuff (Nig.) Ltd. In furtherance of that contractual relationship, the Associated Commodities and Foodstuff (Nig.) Ltd. furnished consideration through the payment of the various sums of money totaling N1,180,593:75k to the Appellant. The question now is, has the Appellant supplied the required goods to the Associated Commodities and Foodstuff (Nig.) Ltd.? The answer to this poser can be found at page 31 lines 5-15 of the record through the evidence of P.W.2 thus:
“Up till now my company has not received any tyre or tube in respect of the first payment of N516,000:00k nor has my company received the payment made to the accused back. In respect of the 2nd payment, my company has not received any supply of granulated sugar nor has received a refund of the money paid”.
The Appellant having failed to supply the Good Year Tyre, Tubes and Granulated Sugar he undertook to supply to the Associated Commodities and Foodstuffs Ltd, and having failed to return the money paid for the goods is deemed to have the intention of permanently depriving the Associated Commodities and Foodstuffs Ltd of their money and thereby have committed the offence of stealing the sum of N1,180,593:75k paid to him by the Associated Commodities and Foodstuffs Ltd. See the cases of CHIANUGO v. THE STATE (2002) 2 N.W.L.R. Part 750 Page 225 at 22g and SHODIYA v. THE STATE (1992) 3 N.W.LR. Part 230 Page 457 at 460 where the court had this to say;
“On ingredients of offence of stealing, the offence of stealing occurs when a person fraudulently converts to his own use or to the use of any other person anything capable of being stolen “.
P.W.5 Fatal Lawal – Inspector of Police testified at page 40 lines 10- 12 to the effect that:
“I agree that as per exhibit “23” Local Letter of Credit was offered but not utilized.”
of Credit was offered but not utilized.”
It is on record that monies were paid to the Appellant in cash for the purchase of tyres, tubes and granulated sugar. If money given for a specific purpose is neither used for that purpose nor returned on demand or at a reasonable time thereafter, the case comes within the provision of stealing by conversion under the Criminal Code. See the cases of THE STATE VS. ODIMAYO & 3 OTHERS (1967) N.M.L.R. at 92, R v. ORIZU (1954) 14 W.A.C.A. at 455 and SAGOE VS. THE QUEEN (1963) 7 ALL N.L.R. at 290. In the instant case, the money was not utilized for the purpose it was meant for and was not refunded even after repeated demands. I am inclined to agree with the learned counsel for the Respondent’s submission that the contention of the Appellant’s Counsel that the relationship is contractual and that only civil action should be commenced to resolve the subject matter of the dispute is misconceived.
At page 31 lines 15-18 of the record of proceedings P.W.2 stated thus:
“Apart from the accused, I do not know of any other directors of the company, he seemed to be all in all of the company”.
In my humble opinion, this is a case in which the law should disregard the corporate entity and pay regard to the entities behind the legal veil of incorporation. Allegation of crime lifts the veil of corporate or voluntary associations and opens up the body to prosecution upon good and substantial facts placed before a court of competent jurisdiction. See the case of CHINWO VS. OWHONDA (2008) 3 N.W.L.R. Part 1074 at 347 particularly at 362 Para D. Appellant who is a Director of Bamico has through his fraudulent act of conversion of the Associated Commodities money called for the lifting of the veil of the corporation to criminal trial of the money paid to him for specific purpose which he did not utilize for the purpose and did not refund the money paid. The court found from the evidence that there was no existing letter of credit issued to the Appellant or his company after 10th April 1987. The money collected thereafter was fraudulent when no goods were forthcoming. Associated Commodities caused their Solicitor through exhibit B to write Bamico demanding for the supply of the goods or the refund of the money paid. Appellant did not supply the goods nor refund the money till date. The rule of a corporation is well stated in the case of TRENCO (NIG.) LTD. VS. AFRICAN REAL ESTATE (7978) 7 LAW REPORTS OF NIGERIA Page 146 at 153 as follows:
“But a company, although a legal person is an artificial one which can only act through its human agents and officers. VISCOUNT HULDANE L.C. in LENNARD’S CARRYING CO. VS. ASIATIC PETROLEUM CO. LTD. (1915) A C 705 stated:
My Lords, a Corporation is an abstraction. It has no mind of its own any more than it has a body of its own. Its active and directing will must consequently be sought in the person of somebody who for some purpose may be called an agent; but who is really the directing mind and will of the Corporation, the very ego and centre of the personality of the Corporation”.
This human personification of a company was clearly brought out by DENNING L.J. in BOLTON (ENGINEERING CO. LTD v. GRAHAM & SONS (1957) 1 Q.B. Page, 159 at 172 – 173 where he said:
“A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre.
Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of those managers is the state of mind of the company and is treated by law as such…”
It follows that a company, although having a corporate personality is deemed to have human personality through its officers and agents and will therefore speaking generally, contract like an individual. The veil of incorporation ought to be lifted in the interest of justice in the circumstance of this case. The lower court has rightly lifted the veil of incorporation having found that the Appellant was dishonest from the evidence before it.
At page 74 lines 27-33 of the record, the learned trial Judge found as follows:
“As there was no existing letter of credit after 10th April 1987, the money collected under exhibits 6 and 7 was fraudulent when no goods were forthcoming, Associated Commodities caused their solicitor as per exhibit ‘8’ to write Bamnico demanding the supply of the goods or the refund of the money paid. Neither was effected till today”.
At page75 lines 31-34 the learned trial court held thus:
“I therefore find prove that monies paid to the accused for specific purpose i.e. for the purchase of tyres, tubes and granulated sugar had not been utilized for that purpose”.
The onus of proving a criminal case beyond reasonable doubt does not require the prosecution to prove the guilt of the accused beyond all shadow of doubt. It is enough if the evidence before the court has proved the ingredients of the offence and it is sufficient to establish the guilt of the accused. See the case of KAJUBO VS. THE STATE (1988) 1 N.W.L.R. Part 73 Page 721 at 723.
Appellate courts do not enquire into disputes but on how or the ways the disputes have been tried and settled or resolved. See the cases of AJADI v. OKENIHUN (1995) 1 ALL N.L.R. Part 1 at 213, LAYINKA v. MAKINDE (2002) 10 N.W.L.R. Part 775 at 358 and G.M.O.N. & S CO. LTD. v. AKPUTA (2010) 1 N.W.L.R. Part 1200 Page 443 at 479 per OGBUAGU J.S.C.
The findings of the learned trial Judge are supported by evidence, they are not perverse and have not in any way led to any miscarriage of justice.
An Appellate court lacks the power to interfere or disturb such findings of fact particularly when such findings are supported by the evidence on record. See the cases of IWUOHA & ANOR v. NIGERIAN POSTAL SERVICES LTD. & ANOR. (2003) 28 W.R.N. at Page 11 and EDOHO VS. THE STATE (2010) 40 W.R.N. Page 7 at 36 Lines 5-15.
In conclusion the fact that the relationship between the Appellant and the Associated Commodities and Foodstuff (Nig.) Ltd. was intended to be contractual in nature and the fact that the Appellant committed the offence of stealing by conversion along the line gives the subject matter of dispute in the instant case criminal colouration which can be prosecuted independently as in the case at hand or contemporaneously with any civil proceeding that the Associated Commodities and Foodstuffs (Nig.) Ltd. may intend to commence to seek for redress of whatever grievances the Association may have against the Appellant. Issues 1 and 2 are hereby resolved against the Appellant.
Finally the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court in charge no.I/8c/92 delivered on the 30th of October 1992 is hereby affirmed.
STANLEY SHENKO ALAGOA, J.C.A.: I have had the opportunity of reading before now the judgment of my learned brother Modupe Fasanmi, J.C.A. just delivered. I agree with the reasoning and conclusion reached that the appeal lacks merit and should be dismissed. I also dismiss same and affirm the judgment of the lower court.
SIDI DAUDA BAGE, J.C.A.: I had the privilege of reading in draft the lead judgment of my brother, M. FASANMI J.C.A. All the issues canvassed have been adequately deal with. I do not have anything more useful to add.
I entirely agree with the reasoning and conclusion arrived at, that the appeal lacks merit and it ought to be dismissed and I hereby dismiss same.
I abide with consequential orders made in the lead judgment.
Appearances
Adekunle Ojo with Biodun KuforijiFor Appellant
AND
L.A. Ganiyu D.D.P.P. Oyo State Ministry of JusticeFor Respondent
