ANYANWU v. FRN & ANOR
(2022)LCN/16232(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 23, 2022
CA/L/661/2021
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
MR. UGO ANYANWU APPELANT(S)
And
(1) FEDERAL REPUBLIC OF NIGERIA (2) MR. FRANCIS ATUCHE RESPONDENT(S)
RATIO
DEFINITION OF THE TERM “CONSPIRACY”
Conspiracy has been defined as the agreement to do an illegal act or legal act by illegal means.
See the following cases:-
– OLOYEDE VS. THE STATE (2019) LPELR – 47489 (CA).
– KAYODE VS. STATE (2016) 7 NWLR PART 1511 PAGE 199.
– SMART VS. STATE (2016) 9 NWLR PART 1517 PAGE 447.
– YAKUBU VS. STATE (2014) 8 NWLR PART 1408 PAGE 589.
– OSETOLA VS. STATE (2012) 17 NWLR PART 1329 PAGE 251.
– NJOVENS VS. THE STATE (1973) SC PAGE 17.
– IKEMSON VS. THE STATE (1989) 3 NWLR PART 110 PAGE 455. PER BADA, J.C.A.
THE POSITION OF LAW ON THE APPROPRIATE TIME TO CHALLANGE THE VOLUNTARINESS OF A STATEMENT
It is settled law that the appropriate time to challenge the voluntariness of a statement is at the time it was being tendered in evidence by the Prosecution and not on appeal.
See the following cases:-
– ISA VS. STATE (2016) 6 NWLR PART 1508 PAGE 243.
– BELLO SHURUMO VS. THE STATE (2010) 19 NWLR PART 1226 PAGE 73.
– OGUNO VS. STATE (2013) 15 NWLR PART 1376 PAGE 1. PER BADA, J.C.A.
THE POSITION OF LAW WHERE THE PROSECUTIION FAILS TO CALL A PERSON AS A WITNESS
It is settled law that in criminal trials where the Prosecution fails to call a person as a witness the accused person is at liberty to call that person as a witness in his defence.
See -ODUNLAMI VS. NIGERIAN ARMY (2013) 12 NWLR PART 1367 PAGE 20.
– EKPEYONG VS. STATE (1991) 6 NWLR PART 200 PAGE 683. PER BADA, J.C.A.
THE MEANING OF THE TERM “BIAS”
The term bias has been held in number of cases to mean:–
– A mental attitude or predisposition of a Judge to decide a cause or an issue in favour of a party in a matter. See – IBRAHIM VS. OJONYE (2012) 3 NWLR PART 1286 PAGE 108.
– KENON VS. TEKAM (2001) 14 NWLR PART 732 PAGE 12. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of Lagos High Court delivered on 16/6/2021 in Charge Number: ID/154C/2011 – FEDERAL REPUBLIC OF NIGERIA AND (1) MR. FRANCIS ATUCHE (2) MRS. ELIZABETH ATUCHE (3) MR. UGO ANYANWU. Wherein the Appellant was found guilty of each of counts 1 to 11, 14 to 20, 23 and 24 of the charge contained in the Amended Information of 1st June 2011. The Appellant was convicted of the respective offences of conspiracy to steal and stealing as stated in each of the counts (see page 6860 of the Record of Appeal Volume 15 for the sentence).
Briefly, the facts of the case according to the prosecution ie., the 1st Respondent is that, the Appellant Mr. Ugo Anyanwu who was the Chief Financial Officer of Bank PHB Plc now known as Keystone Bank Limited together with the 2nd Respondent – Managing Director and Chief Executive Officer of the Bank and one Mrs. Elizabeth Atuche – wife of the 2nd Respondent were charged on a 27 count charge of conspiracy to steal and stealing under Section 390 of the Criminal Code Law of Lagos State 2003 (Now Section 278 of the 2011 Law).
The amended information dated 1/6/2011, is on pages 1 to 11 of the Records of Appeal Volume 1.
It was stated that the Appellant acting in connivance and under instruction of the 2nd Respondent fraudulently instructed the opening of several accounts vide Exhibit 96 (on page 9241 to 9242 of the Record of Appeal of Exhibit 26). The Appellant was stated to be the willing tool of the 2nd Respondent. He not only intervened to override, all controls he was actively involved at all stages. Contemporaneously with the opening of these accounts several loans were created in the names of – Futureview Securities, – Extra Oil and Gas Limited, Tradjek Nigeria Limited, Petrosan Oil & Gas Limited and Resolution Trust and Investment Limited in the various sums stated in counts 1 to 10 in the names of those companies without their request, a fact which the Appellant admitted in his statement to the EFCC. Exhibit P184 (on pages 9840 to 9842 of the Records of Exhibits Volume 28). The Appellant acting on the instruction of the 2nd Respondent proceeded to give instructions vide Exhibits P95 and P97 (on pages 9250 to 9252 of the Records of Exhibits Volume 26) for the transfer of these sums to various accounts in other banks.
Despite the query on Exhibit P97 by PW7, noted as “outstanding customers instructions” on page 9251 of the Records of Exhibits Volume 26, the Appellant appended his signature to bypass the controls in place and authorized the transfers of funds out of the Bank. The transfers in Exhibits P95 and P97 even though without the customers’ instructions were effected in total disregard of the stipulations of the respective bogus Credit Approval Memorandum. For example, in the case of Extra Oil Ltd. (Exhibit 120 on pages 9410 to 9416 of the Records of Exhibits Volume 27) the payments were to be made directly to the purported supplier of the Houseboats, Wright International Ltd. In respect of Tradjek Limited, (Exhibit P121 on page 9417 to 9427 of the Records of Exhibits Volume 27), payments for the real estate development in Port Harcourt, Rivers State were to be made in milestones, while in respect of Petosan Oil & Gas Limited (Exhibit P115 on page 9381 to 9388 of the records of Exhibits Volume 27), payment for the construction of the tank farms were to be made directly to the contractor.
Consequent upon the transfers of the various sums out of the Bank via Exhibits 95 and 97 the Appellant proceeded to fill Exhibit P40 – P51 (on pages 9022 to 9097 of the Records of Exhibits – Volume 26), application forms for the purchase of Bank PHB shares in favour of the companies named on the face of the application form. A fact the Appellant never denied in his written statement to the Economic and Financial Crimes Commission Exhibit P184 (on pages 9840 to 9842 of the Records of Exhibits Volume 28) and in fact confirmed in his evidence before the Honourable Trial Court. The Appellant also confirmed his staff identification number UA061201 on all these application forms. These application forms all have the signature and official telephone lines of the Appellant as contained in Exhibits P95, P96 and P97. Having transferred the loan sums out of the Bank’s system, the Appellant and the 2nd Respondent informed the recipient of the funds that the monies paid into their respective accounts were from foreign investors interested in buying shares in the Bank’s public offer.
In the course of the trial, the 1st Respondent as prosecution called 12 witnesses and tendered many documentary evidence.
On the other hand, according to the Appellant, the case of the 1st Respondent suffered a deficiency of proof as the evidence led did not support the allegations as contained in the counts of the charge preferred against the Appellant. That there was no nexus whatsoever between the Appellant and the sums of money said to have been stolen and the shares said to have been purchased by the said sums of money. There were also material inconsistences in the evidence led by the prosecution as even the amounts stated in the charges as what was stolen and used in buying the shares do not add up or tally with the value of the shares purchased by the said companies in the said public offer.
Furthermore, it was stated on the side of the Appellant that there was no evidence against the Appellant with respect to the purchase and transfer of the shares, whereas the substance of the counts was to the effect that Appellant and the 2nd Respondent stole various sums of money being property of the Bank by causing same to be fraudulently described as loans and converting the said sum for their personal use, there was no scintilla of evidence indicating that the Appellant benefitted or converted any monies whatsoever from the said loans. No funds were transferred to the Appellant’s bank accounts, no shares were traced as belonging to the Appellant as a result of the said public offer or in any manner whatsoever connected to or with him. The evidence of the two EFCC Investigating Officers, David Nkpe (PW10) and Hammaadama Bello (PW12) who testified on behalf of the prosecution clearly confirmed this position.
Furthermore, according to the Appellant, the evidence led at the trial showed that the Appellant did not do anything outside the ordinary course of his duties as an officer of the Bank or beyond that done by other officers in the bank with respect to the opening of account for the said companies and/or the approval and disbursement of the loans to the said companies.
The 2nd Respondent (as 1st Defendant at the trial Court) on his part called 15 witnesses in defence of his charge while the Appellant (as 3rd Defendant at the trial Court) called (4) four witnesses including himself.
At the conclusion of the trial, in a judgment delivered on 16th day of June, 2021, the trial Court found the Appellant guilty of counts 1 to 11, 14 to 20, 23 and 24 of the amended information dated 1/6/2011 and convicted him alongside the 2nd Respondent.
The Appellant and the 2nd Respondent were however discharged and acquitted in counts 12, 13, 21, 22 and 26 of the said Amended Information. The Appellant was sentenced to four years imprisonment for each of counts 1 to 11, 14 to 20, 23 and 24 of the charge.
The trial Court also made an order jointly and severally against the 2nd Respondent and Appellant for restitution of the sums of the subject matter of counts 11, 14 to 20 and 24 of the charge.
The Appellant who is dissatisfied with the Judgment of the trial Court appealed to this Court.
The learned senior Counsel for the Appellant formulated (9) nine issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether the learned trial Judge was right in convicting the Appellant of the offence of conspiracy to steal and fraudulent conversion of various sums of money to his personal use by using same to purchase bank shares notwithstanding that the evidence before the Court below unequivocally showed that no sums of money whatsoever were received by him, nor traced to him, no shares acquired by or for him; no dividends received by him, and no benefit, and no proceeds whatsoever received by him or for his use, contrary to the specific averments in the charge against him. (Distilled from Grounds 1, 2, 5, 19 and 34 of the Grounds of Appeal).
(2) Whether the learned trial Judge was right in convicting the Appellant of stealing and conversion of the funds in question when the Prosecution failed to prove that the Appellant did any more than perform his normal official duties as a banker in conjunction with all other relevant officers of the Bank and in line with the Bank’s standard practice. (Distilled from Grounds 3, 4, 6, 7, 8, 9, and 10 of the Grounds of Appeal).
(3) Whether the learned trial Judge was right in finding that the Appellant was involved in a “deliberate scheme of events” by way of the Initial Public Offer of the Bank to defraud the Bank by the use of the deferral system to bypass normal control measures of the Bank in the absence of such evidence against the Appellant. (Distilled from Grounds 11, 12, 13, 14, 15, 16, 17 and 18 of the Grounds of Appeal).
(4) Whether the learned trial Judge was right in his finding against the Appellant that the loan agreements by the Bank with the five companies were “contrived loans” and the loaned sums were lodged in “contrived accounts” contrary to the evidence adduced before the Court below. (Distilled from Grounds 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of the Grounds of Appeal).
(5) Whether the learned trial Judge did not breach the Appellant’s right to fair hearing by wrongly rejecting vital evidence favourable to and presented by the Appellant without any justification, heavily relying on extra-judicial statements of peoples not called as witnesses and on an extra-judicial statement of the Appellant which contravened the provisions of the Administration of Criminal Justice Law of Lagos State in convicting the Appellant. (Distilled from Grounds 33, 35, 38, 43 and 44).
(6) Whether the learned trial Judge’s evaluation of evidence is not wrongful and laced with speculative inferences in making a case for the 1st Respondent, failing to consider the defence of the Appellant, placing the burden of proof on the defence, and in resolving all doubts against the Appellant. (Distilled from Grounds 30, 31, 32, 39, 45, 46 and 47).
(7) Whether the judgment of the Court below is not perverse being affected by the apparent and obvious bias demonstrated by the learned trial Judge against the Appellant by reliance on his personal assumptions and conclusions without any evidence on the records of the trial Court that the Appellant was “corky, combative and rude” and which said personal assumptions and conclusions ultimately influenced the learned trial Judge’s final decision. (Distilled from Grounds 41 and 42 of the Grounds of Appeal).
(8) Whether the judgment of the trial Court is not perverse and liable to be set aside following the trial Court’s denial of the Appellant’s constitutional right to fair hearing when the trial Court proceeded to deliver judgment based on incomplete records of the trial Court, missing exhibits, and when the trial Court proceeded to discountenance the entirety of the Appellant’s Reply on Points of Law without justification. (Distilled from Grounds 40 and 48).
(9) Whether the finding of guilt, the consecutive sentences passed on the Appellant and the order for restitution made against the Appellant by the trial Court, are not contrary to law which provides that a finding of guilty is to be pronounced on each count and a sentence accordingly passed on each such count, and when the evidence before the trial Court showed that the Appellant did not benefit in any manner from the alleged funds and when none of the alleged funds and when none of the alleged sums of money was traced to the Appellant or found in the Appellant’s possession? (Distilled from Grounds 49 and 50).”
The learned senior Counsel for the 1st Respondent also formulated (9) nine issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether the Honourable Trial Court was right in convicting the Appellant for the offence of conspiracy to steal and stealing as spelt out in counts 1 to 11, 14 to ’20, 23 and 24 of the amended information dated 1st June, 2011. – Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 19, 31, 32, 33, 34, 35, 37, 38, 45, 46 and 47.
(2) Whether the Honourable Trial Court was right in holding that the loans subject of counts 1 to 10 of the amended information dated 1st June, 2011 were contrived based on the evidence before it. – Grounds 18, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30.
(3) Whether the Honourable Trial Court was right to hold that exhibits P267(D93), P269(D94) and P271(D95) were unreliable and served no useful purpose to the Appellant and the Court despite the evidence of DW5 that those exhibits were signed by PW1 and PW3. – Grounds 24 and 43.
(4) Whether the failure of the prosecution to call certain persons as witnesses is sufficient basis upon which this Court can proceed to discharge the Appellant. – Grounds 36 and 44.
(5) Whether the Honourable Trial Court was right to consider the confessional statement of the Appellant in the course of its judgment. – Ground 39.
(6) Whether this Honourable Court of Appeal can proceed to set aside the decision of the Honourable Trial Court on the basis of the Appellant’s allegation that the trial Court failed to consider his reply address on points of law in response to the final address of the prosecution. – Ground 40.
(7) Whether in the absence of any concrete evidence against the Honourable Trial Court, this Honourable Court of Appeal can come to the conclusion that the Honourable Trial Court was bias against the Appellant. – Ground 41 and 42.
(8) Whether from the circumstances of this case, it can rightly be held that the Honourable Trial Court convicted the Appellant on an incomplete record. – Ground 48.
(9) Whether this Honourable Court of Appeal can in the circumstances of this case set aside the sentencing and restitution order of the Honourable Trial Court. – Grounds 49 and 50.”
Before going into the merit of the appeal, it is appropriate at this juncture to consider the application dated 14/2/2022 which was filed on 15/2/2022 on behalf of the 1st Respondent.
Application filed on behalf of the 1st Respondent on 15/2/2022
The 1st Respondent prayed for the following orders:-
(1) An order of this Court striking out ground thirty-five (35) IN the Appellant’s Notice of Appeal dated 7/9/2021.
AND CONSEQUENT UPON THE GRANT OF PRAYER 1 ABOVE, the 1st Respondent prayed as follows:
(2) An order of this Court striking out issues five (5) and six (6) in the Appellant’s brief of argument dated 11/11/2021 and filed on 12/11/2021 and all arguments contained therein in respect of the Appellant’s complaints as spelt out in grounds 30, 31, 32, 33, 35, 38, 39, 43, 44, 45, 46 and 47 of the Notice of Appeal dated the 7th day of September, 2021.
THE GROUNDS UPON WHICH THE APPLICATION IS PREDICATED ARE AS FOLLOWS:-
“a. The Appellant by ground thirty-five (35) of his Notice of Appeal dated the 7th day of September, 2021, raises a complaint against the decision of the Honourable Trial Court delivered on the 14th day of May, 2019 wherein the Court rejected a letter dated the 27th day of December, 2007 which the Appellant sought to tender.
b. Being a decision in a criminal matter, the Appellant ought to have lodged an appeal against that decision within ninety (90) days from the date of that decision in line with Section 24 (2) (b) of the Court of Appeal Act.
c. That the decision of 14th day of May, 2019 is for all intent and purpose an interlocutory decision.
d. Even though the law permits the merger of an appeal against an interlocutory decision with an appeal against the substantive judgment, a party seeking such merger ought to first and foremost seek the leave of Court to incorporate both complaints in a single appeal.
e. Furthermore, where the time within which to bring an appeal against such interlocutory decision has elapsed a party seeking to incorporate the appeal against the interlocutory decision with the appeal against the substantive decision ought to seek an extension of time from the Court.
f. The Appellant has failed and or neglected to seek and obtain the requisite leave of Court or extension of time before appealing against the interlocutory decision of 14th May, 2019.
g. The leave of Court and an order for extension of time is a condition precedent for this Court to assume jurisdiction over a complaint arising from the interlocutory decision of the Honourable Trial Court on the 14th day of May, 2019 in the instant appeal.
h. Having not sought leave of the Court or extension of time within which to appeal against the decision of 14th May, 2019, the said ground thirty-five (35) is grossly and unpardonably incompetent and ought to be struck out.
i. The Appellant has distilled issue 5 in his Appellant’s brief of argument dated the 11th day of November, 2021 from incompetent ground 35 and infused into it competent grounds 33, 38, 43 and 44 of his notice of appeal dated 7th day of September, 2021.
j. The law is settled that any issue distilled from an incompetent ground of appeal is itself incompetent and liable to be struck out by the Appellate Court.
k. Issue 5 in the Appellant’s brief of argument dated the 11th day of November, 2021 as well as all the grounds that birthed it are infected by the diseased ground 35 in the Appellant’s notice of appeal dated the 7th day of September, 2021 and ought to be struck out by this Honourable Court alongside all the arguments canvassed thereto.
l. The Appellant in his brief of argument dated 11th day of November, 2021 argued the infected issue 5 (distilled from grounds 33, 35, 38, 44 & 44) with the competent issue 6 (distilled from grounds 30, 31, 32, 39, 45, 46 & 47).
m. Therefore, all the arguments canvassed in respect of issues 5 & 6 in the Appellant’s brief of argument dated 11th November, 2021 arising from grounds 30, 31, 32, 33, 35, 38, 39, 43, 44, 45, 46 & 47 in the Appellant’s notice of appeal dated 7th day of September, 2021 ought to be struck out.”
The application is supported by an affidavit of 4 paragraphs pertinent paragraphs are paragraph 3(a) to (n) reproduced as follows:-
“3. That I was informed by Sodiq A. Lawal, Esq., of counsel at the aforementioned address on the 10th day of February, 2022 at about 4.42pm, during a review of the case file and I verily believe him as follows:
a. That he is one of the counsel handling the matter in our law firm on behalf of the 1st Respondent/Applicant by virtue of which he is conversant with the facts of the case.
b. That he has seen and had the opportunity of perusing the Appellant’s notice of appeal dated the 7th day of September, 2021 filed against the decision of the Honourable Trial Court on the 16th day of June, 2021.
c. That the Appellant by ground thirty-five (35) of the said notice of appeal dated the 7th day of September, 2021, raises a complaint against the interlocutory decision of the Honourable Trial Court delivered on the 14th day of May, 2019 wherein the Court rejected a letter dated the 27th day of December, 2007 which the Appellant sought to tender.
d. That being an interlocutory decision, the Appellant ought to have lodged an appeal against that decision within fourteen (14) days from the date of that decision.
e. That even though the law permits the merger of an appeal against an interlocutory decision with an appeal against the substantive judgment, a party seeking such merger ought to first and foremost seek the leave of Court to incorporate both complaints in a single appeal.
f. That where the time within which to bring an appeal against such interlocutory decision has elapsed a party seeking to incorporate the appeal against the interlocutory decision with the appeal against the substantive decision ought to seek an extension of time from the Court.
g. That the Appellant has failed and or neglected to seek and obtain the requisite leave of Court or extension of time before appealing against the interlocutory decision of 14th May, 2019.
h. That the leave of Court and an order for extension of time is a condition precedent for this Court to assume jurisdiction over a complaint arising from the interlocutory decision of the Honourable Trial Court on the 14th day of May, 2019 in the instant appeal.
i. Having not sought leave of the Court or extension of time within which to appeal against the decision of 14th May, 2019, the said ground thirty-five (35) is grossly and unpardonably incompetent and ought to be struck out.
j. That the Appellant has distilled issue 5 in his Appellant’s brief of argument dated the 11th day of November, 2021 from incompetent ground 35 and competent grounds 33, 38, 43 and 44 of his notice of appeal dated 7th day of September, 2021.
k. That the law is settled that any issue distilled from an incompetent ground of appeal is itself incompetent and liable to be struck out by the Appellate Court.
l. That issue 5 in the Appellant’s brief of argument dated the 11th day of November, 2021 as well as all the grounds that birthed it are infected by the diseased ground 35 in the Appellant’s notice of appeal dated the 7th day of September, 2021 and ought to be struck out by this Honourable Court alongside all the arguments canvassed thereto.
m. That the Appellant in his brief of argument dated 11th day of November, 2021 argued the infected issue 5 (distilled from grounds 33, 35, 38, 44 & 44) with the competent issue 6 (distilled from grounds 30, 31, 32, 39, 45, 46 & 47).
n. That all the arguments canvassed in respect or issues 5 & 6 in the Appellant’s brief of argument dated 11th November, 2021 arising from grounds 30, 31, 32, 33, 35, 33, 39, 43, 44, 45, 46 & 47 in the Appellants notice of appeal dated 7th day of September, 2021 ought to be struck out.”
On the other hand, the learned Counsel for the Appellant filed a Counter-Affidavit in opposition to the 1st Respondent’s application to strike out the Appellant’s Ground 35 of the Notice of Appeal.
The Counter-Affidavit is made up of (6) six paragraphs. Pertinent paragraphs are paragraphs 4 and 5(i) to xii reproduced as follows:-
“(4) That I have been shown a copy of the 1st Respondent’s Motion and the supporting affidavit deposed to by one Tola Oni on behalf of the 1st Respondent seeking to strike out ground 35 in the Appellant’s Notice of Appeal and all the issues and arguments formulated therefrom.
5). That I am informed by the Appellant’s lead counsel, Chief Chris Uche, SAN at a conference on this matter at our office at No. 34 Kumasi Crescent, Wuse 2, Abuja on 17th day of February 2022 at about 5.30pm and I verily believe him as follows:
i. That paragraph 3 of the said supporting affidavit of the 1st Respondent/Applicant is false and is hereby denied.
ii. That the Appellant does not require the leave of Court before filing his Ground 35 in his Notice of Appeal.
iii. That the said ground 35 of the Appellant’s Notice of Appeal is challenging the rejection in evidence of a letter dated the 27th day of December, 2007.
iv. That the ruling on the admissibility of the said letter dated the 27th day of December, 2007 is not such an interlocutory decision that requires leave of Court before being appealed along with the final decision of the trial Court.
v. That the said ground 35 of the Appellant’s Notice of Appeal is competent and is not afflicted by any default/defect whatsoever.
vi. That Issue No. 5 in the Appellant’s Brief of Argument distilled from the said ground 35 of the Appellant’s Notice of Appeal is competent.
vii. That Issue No. 6 in the Appellant’s Brief of Argument argued along with the said Issue No. 5 distilled from ground 35 of the Appellant’s Notice of Appeal is competent.
viii. That all the arguments canvassed in respect of Issues 5 and 6 in the Appellant’s Brief of Argument are all competent and are not afflicted by any default/defect whatsoever.
ix. That the said letter of 27th day of December, 2007 whose admissibility was rejected in evidence is fundamental to the case of the Appellant.
x. That the failure of the trial Court to admit the said letter dated the 27th day of December, 2007 in evidence led the trial Court to a perverse conclusion.
xi. That the rejection of the said letter in evidence led to a miscarriage of justice against the Appellant.
xii. That it is in the interest of justice to dismiss the 1st Respondent’s Motion as incompetent.”
The learned Counsel for the parties in the application filed Written Addresses.
At the hearing of this application on 5/4/2022, the learned Counsel for the 1st Respondent/Applicant moved the application in its terms. The reliefs prayed for by 1st Respondent/Applicant was set out earlier.
He relied on the affidavit in support of the application as well as the Written Address filed along with the application.
He adopted and relied on the affidavit in support and the Written Address as his argument in urging that the application be granted.
On the other hand, the learned Counsel for the Appellant/Respondent in opposing the application relied on the Counter-Affidavit filed on 21/2/2022 and the Written Address filed along with it.
He adopted and relied upon the Written Address filed in opposition to the application as his argument in urging that the application be dismissed.
In order to determine this application, the learned Counsel for the 1st Respondent/Applicant formulated a sole issue for the determination of the application. The issue is reproduced as follows:-
“Whether the Appellant has made out a case to be entitled to the reliefs sought in the instant application.”
In his own case, the learned Counsel for the Appellant/Respondent also formulated a sole issue for the determination of the appeal. The issue is reproduced as follows:-
“Whether the 1st Respondent/Applicant motion ought not be dismissed for being incompetent.”
I have examined the issues formulated for the determination of the application by Counsel for both parties. It is my view that the two issues are like half a dozen and six. I will therefore rely on the issue formulated for the determination of the application on behalf of the 1st Respondent/Applicant.
ISSUE FOR THE DETERMINATION OF THE APPLICATION
“Whether the applicant has made out a case to be entitled to the reliefs sought in the instant application.”
The learned Counsel for the 1st Respondent/Applicant stated that ground thirty-five (35) of the Appellant’s Notice of Appeal dated 7/9/2021 raised a complaint against the interlocutory decision of the trial Court delivered on 14/5/2019 wherein the Court rejected a letter dated the 27/12/2007 which the Appellant sought to tender. He contended that the charge which gave rise to the instant appeal is criminal matter and as such the time within which to appeal is governed and regulated by Section 24(2)(b) of the Court of Appeal Act which provides that an appeal against the decision in a criminal cause or matter ought to be filed within ninety days from the date of the decision appealed against.
He relied on the following cases:- I.G.P. VS. MOBIL PRODUCING (NIG.) UNLTD. (2018) 14 NWLR PART 1659 PAGE 393.
– ADENIYI VS GOVERNING COUNCIL OF YABATECH (1993) 6 NWLR PART 300 PAGE 426.
It was contended on behalf of the 1st Respondent that the law permits the merger of an appeal against an interlocutory decision with an appeal against the substantive judgment but that a party seeking such a merger ought to first of all seek the leave of Court to incorporate both complaints in a single appeal.
And where the aggrieved party is out of time to appeal against the interlocutory decision, he ought to first and foremost seek leave to extend the time within which to appeal against that interlocutory decision.
He relied on BALFOUR BEATLY CONSTRUCTIONS LTD. & OTHERS VS. AKANDE (2019) LPELR – 48832 (CA).
The learned Counsel for the 1st Respondent/Applicant contended that Ground 35 of the Appellant’s Notice of Appeal is incompetent having being filed outside the time prescribed and the implication is that the said Ground 35 in the Appellant’s Notice of Appeal dated 7/9/2021 ought to be struck out.
It was also urged on this Court to strike out issues 5 and 6 because issue 5 in the Appellant’s brief of argument is from the incompetent Ground 35.
In his own case, the learned Counsel for the Appellant/Respondent submitted that the 1st Respondent’s motion is incompetent and ought to be dismissed. He argued further that the grounds of appeal which attacked the Ruling on admissibility of/or rejection of documents during trial can properly be raised and argued in the Notice of Appeal challenging the final Judgment.
It was submitted that the ruling of the trial Court delivered on 14/5/2019 rejecting the letter sought to be tendered in evidence by the Appellant/Respondent is not an interlocutory decision but one made during the course of trial and form part and parcel of the trial and the final Judgment of the trial Court. Therefore that Section 24(2)(b) of the Court of Appeal Act does not in any way apply to this case. He relied on the following cases:-
– ONEHI OKOBIA VS. MAMODU AJANYA & ANOR (1998) 6 NWLR PART 554 PAGE 348.
– ONWE VS. OKE (2001) 3 NWLR PART 700 PAGES 406, 418 PARAGRAPHS E – G.
– ONWUBUARIRI VS. IGBOASOIYI (2011) 3 NWLR PART 1234 PAGES 357, 378 PARAGRAPHS G – H.
– OLATUNJI VS. WAHEED (2012) 7 NWLR PART 1228 PAGES 24, 40 PARAGRAPHS D – E.
– OKEKE VS. PETMAG NIG. LTD. (2005) 4 NWLR PART 915 PAGES 245, 261 – 262 PARAGRAPHS G – A.
The Learned Counsel for the Appellant finally prayed that since Ground 35 contained in the Appellant’s Notice of Appeal complained of wrongful rejection of a document the Appellant did not need to seek leave or extention of time to include the said Ground 35 in its Notice of Appeal dated 7/9/2021.
In his reply on points of law to the Appellant’s Written Address in opposition to the 1st Respondent’s motion on notice dated 14/2/2022 but filed on 15/2/2022, the learned Counsel for the 1st Respondent submitted that the law is settled that a decision of the Court takes effect on the day it was pronounced by the Court. He relied on the following cases:-
– GLOBE MOTORS HOLDINGS (NIG.) LTD VS. OYEWOLE (2022) LPELR – 56856 (CA).
-HEPA GLOBAL ENERGY LTD VS. FEDERAL REPUBLIC OF NIGERIA (2017) LPELR – 44033 (CA).
– OGUNLEYE VS. AINA (2012) LPELR – 7877 (CA).
He went further in his submission that the mere fact that a decision relates to the admissibility of evidence does not change the effective date or time of the delivery of the decision. He contended that the admission or rejection of the evidence is in itself a decision on its own and where any grievance is to be made against the admission or rejection of evidence the relevant decision ought to be the decision rejecting or admitting such evidence.
Learned Counsel for the 1st Respondent urged this Court to discountenance the arguments of the Appellant.
RESOLUTION
The contention of the learned Counsel for the 1st Respondent is that the Appellant by Ground thirty-five (35) of his Notice of Appeal dated the 7th day of September, 2021 raised a complaint against the interlocutory decision of the trial Court delivered on 14/5/2019 wherein the Court rejected a letter dated 27/12/2007 which the Appellant sought to tender.
I am of the view that it is settled law that Grounds of Appeal attacking rulings on admissibility of/or rejection of documents during trial can properly be raised and argued in the Notice of Appeal challenging the final judgment.
In this appeal, the Appellant’s Ground 35 in the Notice of Appeal being objected to by the 1st Respondent is in respect of the rejection by the trial Court of a letter dated 27/12/2007. The said Ground 35 of the Appellant’s Notice of Appeal is reproduced as follows:-
“The learned trial Judge erred in law and occasioned a miscarriage of justice when the Court wrongly rejected the letter dated 27th December, 2007 on the ground that “no real foundation was laid before this copy of a document was tendered in evidence.”
As could be seen, the ruling of the trial Court delivered on 14/5/2019 rejecting the letter sought to be tendered in evidence by the Appellant/Respondent is not interlocutory decision but one made during the course of trial and it forms part and parcel of trial and the final judgment of the trial Court. Therefore Section 24(2)(b) of the Court of Appeal Act does not apply in this case. A complaint against such ruling could be incorporated in the appeal against the final judgment without the need for leave or extention of time to appeal against same.
The view above is supported by the following cases:-
– ONEHI OKOBIA VS. MAMODU AJANYA & ANOR (SUPRA) where it was held among others by the Supreme Court thus:-
“A decision made by the trial Court on wrongful admission of evidence or wrongful rejection of evidence is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue. Thus, a party wishing to appeal against the Judgment of the trial Court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. Both are fundamental as the error might occasion miscarriage of justice.”
Also, in ONWE VS. OKE (supra), it was held among others by the Supreme Court thus: –
“In my humble view therefore, it may be said that ordinarily where an Appellant failed to appeal against an interlocutory order or ruling of a trial Court within the time prescribed by Section 25(2) (a) of the Court of Appeal Act 1976, he must obtain the leave of Court for his appeal to be competent appeal to be competent. When on the other hand; the complaint of the Appellant against the ruling is concerned with the wrongful admission of evidence or wrongful rejection of evidence, such an appellant would not require the leave of Court as the ruling appealed against is not regarded as interlocutory decision. The Appellant may therefore include the ground of appeal against that ruling of the trial Court when appealing against the final Judgment of the trial Court.
In the instant case, it is manifest that the complaint of the Appellants in Ground F of their amended grounds of appeal is that the learned trial Judge wrongly excluded their pieces of evidence, namely plans No IN/12 and CC.14/51 by his rulings in the course of the trial. Now, having regard to what I have said above, Ground F is a competent Ground of Appeal. The Preliminary Objection of the Respondents to the said ground is hereby overruled as I had earlier said when the appeal was heard.”
And in ONWUBUARIRI VS. IGBOASOIYI (SUPRA), it was held among others by the Supreme Court re-emphasizing the point as follows: –
“I have gone through the original ground 1 of the grounds of appeal and I hereby confirm that the ground attacks the admissibility of Exhibit 1 by the lower Court. It is true that no separate notice of appeal was filed with respect to the ruling of the lower Court admitting Exhibit 1 but it is settled law that an Appellant can appeal against interlocutory decision of a lower Court in an appeal against the final decision of the Court as in the instant case.”
See also the following cases: –
– OLATUNJI VS. WAHEED (2012) 7 NWLR PART 1298 PAGES 24, 40 PARAGRAPHS D-E.
– OKEKE VS. PETMAG NIG. LTD (2005) 4 NWLR PART 915 PAGE 245 AT 261-262 PARAGRAPHS G-A.
– A. N. MOHAMMED PET LTD VS. AFRIBANK (NIG.) PLC (2006) 17 NWLR PART 1007 PAGE 131 AT 156-157 PARAGRAPHS H-C.
Consequent upon the foregoing, it is my view that the application filed on behalf of 1st Respondent on 15th February, 2022 lacks merit and it is hereby dismissed.
At the hearing of this appeal on 5/4/2022, the learned Counsel for the Appellant stated that the appeal is against the judgment of Lagos State High Court delivered on 16/6/21. See pages 6617 to 6858 of Volume 15 of the Record of Appeal.
The notice of appeal containing 50 grounds of appeal was filed on 7/9/2021. See pages 6928 to 6992 of Volume 15 of the Records of Appeal.
The Record of Appeal was transmitted on 14/9/2021.
The Appellant’s brief of argument was filed on 12/11/2021 by an order made on 8/11/2021.
The Appellant’s reply brief was filed on 21/2/2022.
The learned Counsel for the Appellant adopted and relied on the said Appellant’s brief as well as the Appellant’s reply brief as his argument in urging that the appeal be allowed.
The learned Counsel for the Appellant contended that the Appellant did not benefit from the transaction and that the ingredients of the offences against him were not proved. He therefore urged that this appeal be allowed.
In his own case, the learned Counsel for the 1st Respondent referred to the 1st Respondent’s brief filed on 15/2/2022 and deemed properly filed and served on 24/2/2022.
He adopted and relied on the 1st Respondent’s brief as his argument in urging that the appeal be dismissed. Reference was made to Exhibit P184 on pages 9840 to 9842 of Volume 28 of the Record of Appeal. He stated that the statement of the Appellant was admitted in evidence without objection.
He urged this Court to dismiss the appeal.
As for the 2nd Respondent, the learned Counsel representing him stated that he did not file any brief on his behalf.
I have carefully gone through the issues formulated for the determination of this appeal by Counsel for the parties. The issues are more or less the same.
In the circumstance, I will rely on the issues formulated for the determination of the appeal on behalf of the Appellant in the determination of this appeal.
ISSUES FOR THE DETERMINATION OF THE APPEAL
“(1) Whether the learned trial Judge was right in convicting the Appellant of the offence of conspiracy to steal and fraudulent conversion of various sums of money to his personal use by using same to purchase bank shares notwithstanding that the evidence before the Court below unequivocally showed that no sums of money whatsoever were received by him, nor traced to him, no shares acquired by or for him, no dividends received by him, and no benefit, and no proceeds whatsoever received by him or for his use, contrary to the specific averments in the charge against him. (Distilled from Grounds 1, 2, 5, 19 and 34 of the Grounds of Appeal).
(2) Whether the learned trial Judge was right in convicting the Appellant of stealing and conversion of the funds in question when the Prosecution failed to prove that the Appellant did any more than perform his normal official duties as a banker in conjunction with all other relevant officers of the bank and in line with the bank’s standard practice. (Distilled from Grounds 3, 4, 6,7, 8, 9, and 10 of the Grounds of Appeal).
(3) Whether the learned trial Judge was right in finding that the Appellant was involved in a “deliberate scheme of events” by way of the Initial Public Offer of the Bank to defraud the bank by the use of the deferral system to bypass normal control measures of the bank in the absence of such evidence against the Appellant. (Distilled from Grounds 11, 12, 13, 14, 15, 16, 17 and 18 of the Grounds of Appeal).
(4) Whether the learned trial Judge was right in his finding against the Appellant that the loan agreements by the bank with the five companies were “contrived loans” and the loaned sums were lodged in “contrived accounts” contrary to the evidence adduced before the Court below. (Distilled from Grounds 20, 21, 22, 23,24, 25, 26, 27, 28 and 29 of the Grounds of Appeal).
(5) Whether the learned trial Judge did not breach the Appellant’s right to fair hearing by wrongly rejecting vital evidence favourable to and presented by the Appellant without any justification, heavily relying on extra-judicial statements of peoples not called as witnesses and on an extra-judicial statement of the Appellant which contravened the provisions of the Administration of Criminal Justice Law of Lagos State in convicting the Appellant. (Distilled from Grounds 33, 35, 38, 43 and 44).
(6) Whether the learned trial Judge’s evaluation of evidence is not wrongful and laced with speculative inferences in making a case for the 1st Respondent, failing to consider the defence of the Appellant, placing the burden of proof on the defence, and in resolving all doubts against the Appellant. (Distilled from Grounds 30, 31, 32, .39, 45, 46 and 47).
(7) Whether the judgment of the Court below is not perverse being affected by the apparent and obvious bias demonstrated by the learned trial Judge against the Appellant by reliance on his personal assumptions and conclusions without any evidence on the records of the trial Court that the Appellant was “corky, combative and rude” and which said personal assumptions and conclusions ultimately influenced the learned trial Judge’s final decision. (Distilled from Grounds 41 and 42 of the Grounds of Appeal).
(8) Whether the judgment of the trial Court is not perverse and liable to be set aside following the trial Court’s denial of the Appellant’s constitutional right to fair hearing when the trial Court proceeded to deliver judgment based on incomplete records of the trial Court, missing exhibits, and when the trial Court proceeded to discountenance the entirety of the Appellant’s Reply on Points of Law without justification. (Distilled from Grounds 40 and 48).
(9) Whether the finding of guilt, the consecutive sentences passed on the Appellant and the order for restitution made against the Appellant by the trial Court, are not contrary to law which provides that a finding of guilty is to be pronounced on each count and a sentence accordingly passed on each such count, and when the evidence before the trial Court showed that the Appellant did not benefit in any manner from the alleged funds and when none of the alleged sums of money was traced to the Appellant or found in the Appellant’s possession? (Distilled from Grounds 49 and 50).”
ISSUE NUMBERS 1, 2, 3, 4 & 5 (Taken Together)
The learned Counsel for the Appellant submitted that the learned trial Judge erred in law in convicting the Appellant of the offence of conspiracy to steal and fraudulent conversion of the various sums of money to his personal use by using same to purchase bank shares notwithstanding that the evidence before the Court unequivocally showed that no sums of money whatsoever were received by him, nor traced to him, no shares acquired by or for him, no dividend received by him or for his use, contrary to the specific averments in the charge against him.
It was contended that in all the Counts of the charges against the Appellant is the averment that the Appellant converted the various sums of money to his personal use, and also used the various specified sums of money to purchase specified units of shares in Bank PHB.
It was submitted on behalf of the Appellant that all the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any of the ingredients of the offence as charged, the accused is entitled to acquittal by the trial or appellate Court.
The following cases were relied upon:-
– ENGINEER SULE ALIYU VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR PART 1399 PAGE 101.
– CHIEF OLABODE VS. F.R.N. (2014) PART 1399 PAGE 1 AT 24.
– TAFIDA VS. F.R.N. (2014) 5 NWLR PART 1399 PAGE 129.
– MAIDERIBE VS. F.R.N. (2014) 5 NWLR PART 1399 68.
– GOLIT VS. I.G.P. (2020) 7 NWLR PART 1722, 40 AT 58 – 59 PARAGRAPHS G – D.
– ABIDOYE VS. FRN (2014) 20 NWLR PART 1399 PAGE 30.
It was also submitted on behalf of the Appellant that the learned trial Judge erred in law when he convicted the Appellant of conspiracy to steal and convert various sums of money to his personal use when the evidence before the Court showed that no sum of money whatsoever was converted to the Appellant’s personal use nor did the Appellant receive any benefit whatsoever from any of the transactions the subject matter of the charge.
As for the charge of stealing against Apthepellant of the various sums of money by converting same to his use by using same to purchase stated units of Bank PHB shares on behalf of named companies. It was submitted that the Prosecution failed to prove this element of the charges and the learned trial Judge was wrong in convicting the Appellant of stealing and converting various sums of money to his personal use by using same to purchase bank shares when the evidence before the Court showed no bank shares whatsoever were purchased by, or for, or on behalf of, or for the benefit of the Appellant.
It was contended that the Appellant’s name was not mentioned or contained in the CBN/NDIC Stress Test Report, which PW10 claimed to be the alleged petition to the EFCC, that gave rise to the investigations and the charges against the Defendants at the trial Court. The Appellant played no role whatsoever in the creation of the loans in question, in their disbursements and the alleged acquisitions of shares with them. It was argued that the Appellant merely acted innocently and in the ordinary course of his duties as the Chief Financial Officer of the Bank in performing duties delegated to him by his superior, just like the PW9 and other bank staff who testified at the trial.
As for issue 3, the learned Counsel for the Appellant posed a question thus:-
“Did the prosecution bring before the trial Court established control measures in Bank PHB Plc that were deliberately bypassed by the Appellant in its evidence before the trial Court”. This question was answered in the negative.
It was argued on behalf of the Appellant that the evidence before the trial Court from the Prosecution witnesses showed that indeed no extant procedure for account opening, loan creation and loan approval in Bank PHB were breached by the Appellant. First the evidence before the trial Court is that the Appellant was not involved in the loan creation and approval process of the Bank and not a member of any of the Committees charged with loan creation and approval. Reference was made to the evidence of:-
– PW4 See pages 1651 – 1682, 1726 – 1748
– PW5 at pages 1750 – 1762
– PW6 at 1802 – 1805
– PW8 at 1926 – 1943
– PW9 at 1989 – 2031
(Of the Record of Appeal Volume 4).
It was submitted on behalf of the Appellant that he was convicted based on speculative conjecture by the trial Court on what the Appellant should have done in the circumstances of the case, and not what he, in fact, did. Reliance was placed on the case of – AMADI VS. THE STATE (1993) 8 NWLR PART 314 PAGE 6944.
It was contended that the trial Court refused to consider the Appellant’s evidence. In the circumstance, the learned Counsel for the Appellant urged this Court to set aside the findings of the trial Court to the effect that the Appellant was involved in a deliberate scheme of events by way of the initial Public Offer of the Bank to defraud the Bank by the use of the deferral system to bypass the normal control measures of the Bank.
It was also submitted on behalf of the Appellant that the trial Court’s findings that:-
– the five companies in issue were never true customers of the Bank PHB and
– that their loan agreements and accounts were contrived is perverse and lacks basis.
The learned Counsel for the Appellant went further that a totality of the evidence before the trial Court from both the Prosecution and defence shows without doubt or contention that:-
– Future view Securities Limited
– Extra Oil Limited
– Resolution Trust and Investment Company Limited
– Petosan Oil and Gas Company Limited
– Tradjek Nigeria Limited
were all true customers of Bank PHB while three of the companies namely:-
– Future view Securities Limited
– Extra Oil Limited and
– Tradjek Nigeria Limited
were run by Elizabeth Ebi (PW3).
The other two companies namely:–
– Resolution Trust and Investment Company Limited and
– Petosan Oil and Gas Company Limited
were run by Peter Ololo who was not called as a witness at the trial Court.
It was submitted on behalf of the Appellant that contrary to the findings of the Court below, the loan agreements and the loan accounts could not be said to have been contrived. And from the evidence before the trial Court that, it was established that the loan facilities granted by Bank PHB to the five companies in issue went through the normal process of the Bank for granting of credit facilities. Reference was made to Exhibit D2 at page 89 of the Record of Appeal Volume 1, which is the Minutes of the Board of Directors of the Bank PHB Plc which held on 9/7/2008 where the loans in issue were approved by the Board of Directors among other loans of other customers which were also approved on the same date. It was submitted that a loan approved by the Board of Directors of a Bank at its duly constituted meeting cannot be said to be contrived.
The learned Counsel for the Appellant urged this Court to hold that the Court below was wrong in holding that the loan agreement by the Bank with the five companies were “contrived loans” and the loan sums were lodged in “contrived accounts” contrary to the evidence adduced before the said Court.
In his response, the learned Counsel for the 1st Respondent referred to pages 5642 to 5643 of the Record of Appeal Volume 12 where the Appellant stated that as Chief Financial Officer of the Bank he was involved in:-
(1) Balance Sheet
(2) Tax Compliance and Management
(3) Regulatory Reporting and Compliance
(4) Budgeting and Budget Control
(5) Financial Control
(6) Cost Management, Performance Registry and Management.
And on page 5644 to 5646 of the Records of Appeal Volume 12 the Appellant testified that he is not involved in account opening or loan creation at all because he was not customer facing. But the Appellant authored-
– Exhibits – P95
– Exhibits – P96
– Exhibits – P97.
He overrode the established controls from account opening to availment of funds culminating in the exit of the funds.
It was submitted on behalf of the 1st Respondent that on the basis of the evidence before the trial Court, the Appellant went beyond the scope of his “Finance” duty being the Chief Financial Officer of the Bank to give instructions to open accounts as well as authorize the transfer of various sums of monies from the Bank. And that the argument that the Appellant acted within the scope of his official duty is unfounded.
It was argued that the critical role played by the Appellant in the scheme of things showed and established that the Appellant acted in conspiracy with the 2nd Respondent.
He relied on the following cases:-
– YAKUBU VS. STATE (2014) 8 NWLR PART 1408 PAGE 539.
– OSETOLA VS. STATE (2012) 17 NWLR PART 1329 PAGE 251.
The learned Counsel for the 1st Respondent referred to the contention of Counsel for the Appellant that the trial Court was wrong to have convicted the Appellant of the offence of stealing because from the evidence no money was traced to the account of the Appellant. It was submitted on behalf of the 1st Respondent that failure to establish the substantive offence is not enough to discharge the Appellant of the offence of conspiracy. The learned Counsel for the 1st Respondent submitted that conspiracy to commit the offence of stealing and the offence of stealing as charged are two distinct and separate offences. The following cases of:-
– MARTINS VS. STATE (2019) LPELR – 48889 (SC) and
– SEGUN BALOGUN VS. ATTORNEY GENERAL, OGUN STATE (2002) SC PART 11 PAGE 89 were relied upon.
It was also contended that the CBN/NDIC report that gave rise to the investigation of Bank PHB Plc did not mention the Appellant’s name. But it was submitted on behalf of the 1st Respondent that EFCC has the powers to investigate allegations of financial and economic crimes and that it was after a microscopic investigation that the criminal activities of the Appellant and the 2nd Respondent were unearthed by team of experienced investigators.
It was submitted on behalf of the 1st Respondent that where a person is charged for stealing of a specific amount, once the Prosecution is able to establish part of the amount stolen, the accused will still be convicted for stealing. The following cases were relied upon:-
– DAVID VS. FRN (2018) LPELR – 43677 (CA).
– ATANO VS. A.G. BENDEL (1988) 2 NWLR PART 75 PAGE 210.
It was submitted on behalf of the 1st Respondent that the case of conspiracy to steal and stealing were proved against the Appellant and that the trial Court was right to convict the Appellant on Counts 1 – 10, 11, 14 – 20, 23 and 24 of the amended information dated the 1st day of June 2011.
It was argued on behalf of the Appellant that the trial Court was wrong in holding that the loans subject matter of Counts 1 – 10 of amended information were contrived.
Learned Counsel for the 1st Respondent referred the testimonies of PW4 and PW8 on pages 1675 to 1676 and page 1930 of the record of Appeal Volume 4 where they testified that in normal practice, an account could not be opened without the customer formally filling account opening documents. And also that instructions to debit an account will not be effected unless the customer issues a formal instruction to that effect. Reference was made to the testimony of PW7 on pages 1809 and 1811 of the Record of Appeal Volume 4.
It was also contended on behalf of the 1st Respondent that both at the time of opening the account to warehouse the loan as well as the authorization to exit the funds from the Bank, the Appellant overrode the system control using the well-intended deferral policy of the bank by falsely claiming that he had the account opening documents and the customers instruction with him. Reference was also made Exhibit D12 the Board of Directors of Bank PHB Plc Minutes of Meeting of 25/8/2010 on pages 174 – 227 of the Records of Exhibit Volume 1 where KPMG stated that there was the involvement of the Appellant and the collusion of the management in the purchase of shares during the IPO of the Bank in 2007.
RESOLUTION
By the amended information before the trial Court, the Appellant who was the 3rd Defendant at the trial Court along with two others were accused of many Counts of conspiracy to steal and stealing various sums of money said to be the property of Bank PHB Plc.
In particular, the Appellant was charged and convicted by the trial Court for the offence of conspiracy to steal and stealing as spelt out in counts 1 to 11, 14 to 20, 23 and 24 of the amended information dated 1/6/2011. The relevant Counts are reproduced as follows:-
“1. MR. FRANCIS ATUCHE
2. MRS. ELIZABETH ATUCHE
3. MR. UGO ANYANWU
are charged with the following offences:
STATEMENT OF OFFENCE – 1ST COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and publishable under Section 390 (7) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N3,500,000,000.00 (Three Billion Five Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Future View Securities and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 2ND COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N3,500,000,000.00 (Three Billion Five Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Future View Securities and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 3RD COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and punishable under Section 390 (7) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N3,900,000,000.00 (Three Billion Nine Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Extra Oil Limited and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 4TH COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos state 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N3,300,000,000.00 (Three Billion Nine Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Extra Oil Limited and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 5TH COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and punishable under Section 390 (7) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N3,300,000,000.00 (Three Billion Three Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Resolution Trust and’ Investment Limited and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 6TH COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N3,300,000,000.00 (Three Billion Three Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Resolution Trust and Investment Limited and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 7TH COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and punishable under Section 390 (7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc, between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N4,000,000,000.00 (Four Billion Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Petosan Oil & Gas Ltd and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 8TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N4,000,000,000.00 (Four Billion Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Petosan Oil & Gas Ltd and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 9TH COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and punishable under Section 390(7) of the Criminal Code Law, CAP C17, Laws Lagos State, 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did conspire with one another to steal the sum of N3,500,000,000.00 (Three Billion Five Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Tradjek Nigeria Ltd and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 10TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the. Managing, Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu whilst being the Chief Financial Officer of Bank PHB Plc between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N3,500,000,000.00 (Three Billion Five Hundred Million Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan to Tradjek Nigeria Limited and converting the said sum for your personal use.
STATEMENT OF OFFENCE – 11TH COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the, Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N2,390,625,000 (Two Billion, Three Hundred and Nine Million, Six Hundred and Twenty Five Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 140,625,000 units of Bank PHB shares on behalf of Guesstrade Services.
STATEMENT OF OFFENCE – 14TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N3,825,000,000 (Three Billion, Eight Hundred and Twenty Five Million Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 22S,000,000 units of Bank PHB shares on behalf of Claremount Asset Mgt. Ltd.
STATEMENT OF OFFENCE – 15TH COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N2,390,625,000 (Two Billion, Three Hundred and Nine Million, Six Hundred and Twenty Five Thousand Naira Only) being property of Bank Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 140,625,000 units of Bank PHB shares on behalf of Arabian Probity Mgt.
STATEMENT OF OFFENCE – 16TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N2,390,625,000 (Two Billion, Three Hundred and Nine Million, Six Hundred and Twenty Five Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 140,625,000 units of Bank PHB shares on behalf of Clearville Business Support.
STATEMENT OF OFFENCE – 17TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N1,912,500,000 (One Billion, Nine Hundred and Twelve Million, Five Hundred Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 112,500,000 units of Bank PHB shares on behalf of Commercial Trading & Services Ltd.
STATEMENT OF OFFENCE – 18TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N1,912,500,000 (One Billion, Nine Hundred and Twelve Million, Five Hundred Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 112,500,000 units of Bank PHB shares on behalf of Trenton Trade Ltd.
STATEMENT OF OFFENCE – 19TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N2,390,625,000 (Two Billion, Three Hundred and Nine Million, Six Hundred and Twenty Five Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 140,625,00 units of Bank PHB shares on behalf of Consolidated Business Support Ltd.
STATEMENT OF OFFENCE – 20TH COUNT
Stealing punishable under Section 390(7) of the Criminal Code Law of Lagos State 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N1,912,500,000 (One Billion, Nine Hundred and Twelve Million, Five Hundred Thousand Naira Only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 112,500,000 units of Bank PHB shares on behalf of Noelle Investment.
STATEMENT OF OFFENCE – 23RD COUNT
Conspiracy to commit a felony to wit: Stealing contrary to Section 516 and punishable under Section 390 (9) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc, Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB Plc and Elizabeth Atuche (F) between November, 2007 and April, 2008 within the jurisdiction of this Honourable did conspire among yourselves to do unlawful acts, to wit: stealing the sum of N5,737,500,000.00 (Five Billion, Seven Hundred and Thirty-Seven Million, Five Hundred Thousand Naira only) being property of Bank PHB Plc by fraudulently converting the proceeds of several illegal loans for the acquisition of 337,500,000 units of Bank PHB shares on behalf of Ghazali Investment Limited and APCO Associates Limited.
STATEMENT OF OFFENCE – 24TH COUNT
Stealing punishable under Section 390 (7) of the Criminal Code Law of Lagos 2003.
PARTICULARS OF OFFENCE
That you Francis Atuche (M) whilst being the Managing Director and Chief Executive Officer of Bank PHB Plc and Ugo Anyanwu (M) whilst being the Chief Financial Officer of Bank PHB between November, 2007 and April, 2008 within the jurisdiction of this Honourable Court did commit an illegal act of stealing the sum of N2,868,750,000.00 (Two Billion, Eight Hundred and Sixty-Eight Million, Seven Hundred and Fifty Naira only) being property of Bank PHB Plc by causing same to be fraudulently described as a loan and converting same for your own use to wit: using same to purchase 168,750,000 units of Bank PHB shares on behalf of Ghazali Yakubu Investment Limited.”
The learned Counsel for the Appellant submitted that the learned trial Judge erred in law in convicting the Appellant of the offence of conspiracy to steal and fraudulent conversion of the various sums of money to his personal use by using same to purchase bank shares.
The Appellant has argued that it was within his powers to make the requests in Exhibits P95, P96 and P97 on pages 9240 to 9252 of the record of Exhibits Volume 26.
It was submitted on behalf of the Appellant that he acted within the scope of the official duties as Chief Financial Officer of Bank PHB Plc. But the Appellant testified that as Chief Financial Officer of the Bank he was involved in
(1) Balance Sheet
(2) Tax Compliance and Management
(3) Regulatory Reporting and Compliance
(4) Budgeting and Budget Control
(5) Financial Control
(6) Cost Management, Performance Registry and Management.
The Appellant testified that he was not involved in account opening or loan creation because he was not customer facing. See pages 5642 to 5646 of the Record of Appeal Volume 12.
The Appellant who from his evidence is not customer facing alleged that –
(i) He received an instruction from Mrs. Ebi to open several accounts on the 31/12/2007.
(ii) Both Mrs. Ebi (PW3) and Peter Ololo called him on 30th & 31st of December 2007.
(iii) He gave instructions for the transfer of monies out of the Bank (which he admitted were at variance with the respective credit approval memorandum).
The Appellant who claimed not to be customer facing, gave instruction to open an account on customer’s instruction vide Exhibit P96 on page 9241 & 9242 of the Records of Exhibits Volume 26 wherein he stated that the account opening documents were with him.
In Exhibit P96, the Appellant directed that account be opened for the following companies:-
– Tradjek Nigeria Limited
– Future view Securities Limited
– Extra Oil Limited
– Extra Systems Limited
– Integrated Services Limited.
He also stated that the account opening documents of three of the companies were with him. And on pages 5706 and 5711 of the Records of Exhibits Volume 12, he stated that PW3 had sent Personal Assistant named “Onye” with the account opening documents of:-
– Future view Securities
– Extra Oil Limited and
– Tradjek Limited.
The said account opening documents were not presented before the trial Court.
There is also the evidence that the Appellant instructed the transfer out of the Bank vide Exhibits P95 and P97.
The appellant stated among others that though he was not the account officer of any of the companies in Counts 1 to 10 of the amended information and not customer facing but both PW3 and Mr. Peter Ololo the alter egos of those companies called him about the same time to effect some transfers out of their accounts to their related companies in other Banks.
In view of the foregoing, I am of the view that the Appellant went beyond the scope of his finance duty being the Chief Financial Officer of the Bank to give instructions to open accounts as well as authorize the transfer of various sums of monies from the Bank.
As stated earlier, the active role played by the Appellant in Exhibit P96 on pages 9241 to 9242 of the Record of Appeal Volume 26 wherein he instructed Alex Ojukwu (PW8) to open several accounts is important as PW4 on page 1676 of the Records of Appeal Volume 4 had stated that an account opening is very essential to the grant of a loan. Yet the Appellant fraudulently authorized the opening of the accounts without the consent or instruction of the purported intending customers. This in my view shows the intention to carry out a mutual objective with the 2nd Respondent.
The role played by the Appellant in the scheme of things established that he acted in conspiracy with the 2nd Respondent.
Conspiracy has been defined as the agreement to do an illegal act or legal act by illegal means.
See the following cases:-
– OLOYEDE VS. THE STATE (2019) LPELR – 47489 (CA).
– KAYODE VS. STATE (2016) 7 NWLR PART 1511 PAGE 199.
– SMART VS. STATE (2016) 9 NWLR PART 1517 PAGE 447.
– YAKUBU VS. STATE (2014) 8 NWLR PART 1408 PAGE 589.
– OSETOLA VS. STATE (2012) 17 NWLR PART 1329 PAGE 251.
– NJOVENS VS. THE STATE (1973) SC PAGE 17.
– IKEMSON VS. THE STATE (1989) 3 NWLR PART 110 PAGE 455.
The role played by the Appellant was in fact corroborated by his statement i.e. Exhibit P.184 on pages 9840 to 9842 of the record of Exhibits Volume 28 where he stated among others as follows:-
“At the time of these transactions, I am aware that Futureview Securities, Tradjek Limited and Extra Oil Limited had no accounts with the bank and to my knowledge the directors did not apply to the bank to open accounts or be granted credit facilities …”
See also the case of EYO VS. STATE (2013) 1 NWLR PART 1335 PAGE 324 AT 346 TO 347.
It was contended on behalf of the Appellant that the trial Court was wrong to have convicted the Appellant of the offence of conspiracy to steal because the Prosecution failed to prove the substantive offence of stealing against the Appellant. I do not agree with the contention of the learned Counsel for the Appellant, this is because even if the prosecution fail to prove the substantive offence of stealing against the Appellant, it is not enough for this Court to discharge the Appellant for the offence of conspiracy. Conspiracy to commit the offence of stealing and the offence of stealing as charged are two distinct and separate offences. My view above is supported by the following cases:-
– MARTINS VS. STATE (2019) LPELR – 48889.
– LAWSON VS. THE STATE (1973) 4 SC PAGE 115.
– IJIFA VS. STATE (2019) LPELR – 49101 (CA).
– OLATINWO VS. THE STATE (2013) 8 NWLR PART 1355 PAGE 126.
It was also contended on behalf of the Appellant that none of the shares bought in Counts 11, 14 to 20, 23 and 24 of the amended information were traced to the Appellant as the trial Court held that the 2nd Respondent was the beneficiary of the shares referred to in Counts 11, 14 to 20, 23 and 24.
As could be gleaned from the information, the Appellant was jointly charged with the 2nd Respondent in those counts for stealing of the said sums and further utilizing same for their use. In this case, the Prosecution was able to establish that the Appellant stole for the benefit of the 2nd Respondent, in the circumstance, the offence of stealing has been established. See AYENI VS. STATE (2016) LPELR – 40105 (SC), (2016) 12 NWLR PART 1525 PAGE 51.
A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or the use of any other person anything capable of being stolen is said to steal that thing.
The fact that no amount of money was traced to the account of the Appellant and the fact that he did not reap any reward from the shares purchased in the name of the companies listed in Counts 11 to 20 of the information under consideration will not avail the Appellant.
The foregoing apart, it is apparent from the Records of Appeal that the Appellant benefitted from a promotion immediately after his role and involvement in the transaction culminating into this criminal charge. The Appellant’s promotion letter dated 22/1/2008 and duly signed by the 2nd Respondent is marked as Exhibit D147 on pages 8951 to 8952 of the Record of Exhibits Volume 25. The promotion letter was released less than three weeks after the Appellant effected the hoax loans out of the Bank. By the said Exhibit D147 the Appellant was promoted to the position of Senior Vice President.
The Appellant also contended that the trial Court was wrong in its holding that the loans subject matter of Counts 1 to 10 of the amended information on pages 1 to 11 of the records of Appeal Volume 1 were contrived. It was also argued on behalf of the Appellant that the loans spelt out in Counts 1 – 10 of the amended information were ratified by the Board of Directors of the Bank on the 9th day of July 2008 vide Exhibit D2 on pages 89 to 118 of the Records of
Exhibits Volume 1.
It is important to stress that the deferred policy of the Bank which the Appellant relied upon was a well intended policy which permitted the doing of certain things with the intention of regularizing later.
The PW4 and PW8 in the course of their respective testimonies on pages 1675 to 1676 and page 1930 respectively of the Records of Appeal Volume 4 had given evidence to the effect that in normal practice, an account could not be opened without the customer formally filling account opening documents. Also, instructions to debit an account will not also be effected unless the customer issues a formal instruction to that effect as testified by PW7 on pages 1809 and 1811 of the Records of Appeal Volume 4. PW7 also testified that the transaction subject matter of this appeal was unusual. Also, a loan will not be granted to a customer unless the customer formally applies to the Bank.
However, the Bank deferral policy permitted such with the belief that officers and staff of the Bank will act in good faith and all activities carried out will be regularized within the shortest possible time. The Appellant and the 2nd Respondent having in mind the existence of the deferral policy of the Bank in order to achieve their objective took full advantage of the well intended policy and went further to abuse it. From the initial account opening to the loan application to the transfer of funds to third party Banks, the Appellant and the 2nd Respondent took advantage of the deferral policy of the Bank. The deferral policy was applied from the beginning to the end without any regularization.
The PW8 testified on page 1929 of the Record of Appeal Volume 4 that he had received mail on 31/12/2007 Exhibit 96 on pages 9241 and 9242 of the Records of Exhibits Volume 26 from the Appellant to open some accounts in the name of:-
– Tradjek Ltd.,
– Extra Oil Ltd. and
– Futureview Securities Ltd.
among others. By the said mail, the Appellant promised to forward the accounts opening documents of those companies to PW8. It is the evidence of PW8 on page 1932 to 1933 of the Records of Appeal Volume 4 that the documents were never forwarded to him by the Appellant. It is to be noted that the dereferral policy was definitely not put in place to displace in perpetuity the systems control or to perpetuate fraud.
After the loan sum had been credited into the respective accounts opened in the name of the companies listed in Counts 1 to 10 and there was a need to have the money transferred out of the Bank, the Appellant acting in connivance with the 2nd Respondent yet again proceeded to take advantage of the deferral policy of the Bank by giving an instruction to transfer various sums of monies out of the Bank vide Exhibits P95 and P97 on pages 9240 and 9250 to 9253 of the Records of Exhibit Volume 26 without any formal instruction from the customer.
The evidence of PW7 on page 1811 of the Record of Appeal Volume 4 that she effected the instructions contained in Exhibits P95 and P97, but before she had obtained an approval from the Appellant who by all standards was her superior in the office, the Appellant being the Chief Financial Officer of the bank. PW7 on pages 1809 to 1810 of the Record of Appeal Volume 4 had queried the instruction of the Appellant to effect the transfer of such a colossal sum of money in one day without an authority from the Appellant. It is clear that the Appellant abused the well-intended deferral policy of the Bank by authorizing the transfer.
The DW19 who testified on behalf of the Appellant on page 1566 of the Record of Appeal Volume 14 where he stated that the only way to confirm the instructions in Exhibits P95 and P97 were at the instance of the customer was by the production of a payment instrument which could be a cheque, letter from the customer, a mail internally sent on what needs to be done. This simply means that the deferral policy of the Bank does not dispence with the necessity of the customer to still issue a formal instruction authorizing the transfer out of its account if truly such transfer was carried out on its instructions.
It is not strange that no instrument confirming the said transfer was presented by the Appellant in respect of PW3 companies and Mr. Peter Ololo Group of Companies in respect of the instruction of the Appellant in Exhibits P95 and P97.
It is important to stress that PW8 Alex Ojukwu on page 1931 of the Records of Appeal Volume 4 stated unequivocally that the Appellant misrepresented the fact that he had the account opening documents of the companies listed in Counts 1 to 10 because normally an account could not be opened except the account opening documents were in place. However, the deferral policy of the Bank permitted such, subject to regularization which the Appellant had promised to do but never did. The evidence of PW8 is corroborated by the Appellant’s extra-judicial statement Exhibit 184 on pages 9840 to 9842 of the Records of Exhibits Volume 28 and the email of 26th October, 2009 from Uguru Onyoke DW7 on page 9243 Volume 26 of the Records of Exhibit where he had stated thus:-
“Please find attached the request and commitment from the former Chief Financial Officer of Bank PHB Plc that documentation are in place and will be forwarded to us.
Kindly notice that we did not receive the documents as promised.”
The PW8, Alex Ojukwu also in the course of re-examination on page 1942 of the Record of Appeal Volume 4 emphasised that the deferral policy of the Bank does not mean that the documentation for account opening will be dispensed with. Despite knowing that he had not produced or availed the PW8 with the account opening documents the Appellant proceeded to authorize the transfer of such colossal amounts on the 2nd and 4th of January, 2008 against the practice of the Bank vide Exhibit P95 and P97.
The Bank by a letter dated 28/10/2009 tendered Exhibit 198 which is on pages 9919 to 9920 of the Record of Exhibit Volume 28 which stated that no account opening document existed in respect of the companies.
At this juncture, I will consider the issue of the loan. The Prosecutions’ case is that the loans were hoax loans i.e. that they were not loans in the true sence although the case of the Appellant is that the loans were real loans.
The question that comes to mind at this juncture is – Was the trial Court right in holding that the loans which is in respect of Counts 1 to 10 contrived.
On Counts 1 & 2 – Futureview Securities Ltd. – The 1st Respondent called PW3 the alter-ego of this company who offered incontrovertible evidence on pages 1565 to 1569 of the Record of Appeal Volume 4 that she never applied for the loan facility of N3.5 Billion Naira. She tendered in evidence Exhibits P58 to P74 (on pages 9127 to 9173 of the records of Exhibits Volume 26) all unsigned documents received from the 2nd Respondent in his plea to have her regularize the facility he had taken and initiated in the names of her companies. There was no account opening package or loan application by PW3 or any officer of her company for the said facility of N3.5 Billion. The evidence of PW3 was corroborated by the testimony of PW1, PW6, PW8, PW10 and PW12.
Counts 3 & 4 – Extra Oil Limited. PW1 a director of this company (alongside Tochukwu Kemakolam & Jude Kemakolam) gave evidence that the company never applied for a loan in the sum of N3.9 Billion from Bank PHB Plc. The statements of Tochukwu & Jude Kemakolam (Exhibits P189 and P190 on pages 9853 and 9855 of the records of Exhibits Volume 28 respectively) corroborated the testimony of this witness.
This facility was listed in Exhibit D20 (particularly on page 380 of the records of Exhibits Volume 2) as an exposure in the energy sector. The Credit Approval Memorandum for this facility (Exhibit P120 on pages 9410 to 9416 of the record of Exhibits Volume 27) stated that the facility was granted for the purchase of six (6), 300 man Houseboats from Wright International Limited with certain conditions for draw down. It was stated expressly in the credit approval memorandum executed that payment ought to be made directly to the seller of the Houseboats. Also, all the conditions and documents required to be executed before the loan could be drawn down in (Exhibit P120 on pages 9410 to 9416 of the records of Exhibits Volume 27) were never fulfilled yet the Appellant permitted and instructed the transfer of the monies out of the Bank. This was the Appellant who gave evidence that he was not involved in loans yet he instructed the transfer of the loans out of the bank.
Counts 5 & 6 – These counts were in respect of a N3.3 billion facility purportedly granted to Resolution Trust & Investment Limited. The Prosecutions case as admitted by the Appellant in the course of his evidence is that the company was owned by one Mr. Peter Ololo. However Exhibits P240 (the credit approval memorandum on pages 10030 to 10036 of the Record of Exhibits Volume 28) showed different persons as being the owners of the company in particular the names of Mrs. Roli Ololo and Matthew Uduebo were listed as the face of the company.
Counts 7 and 8 – These Counts border on the facility of N4 Billion purportedly granted to Petosan Oil & Gas Limited which the Appellant in the course of his evidence in chief admitted as being owned by Mr. Peter Ololo. In support of these Counts, the 1st Respondent called PW5 (Ms Hellen Eriyo) the account officer of Mr. Peter Ololo who confirmed that Mr. Peter Ololo never applied for any facility in that sum. She further stated that she opened the account upon her resumption in December 2007 and as such the customer could not have applied for any facility in October 2007.
The question then is – Was the loan used for construction of a tank farm? The evidence at the trial Court showed that it was used for purchase of shares, and this makes it a contrived loan.
Counts 9 and 10 – These Counts were in respect of a loan of N3.5 billion purportedly granted to Tradjek Nigeria Limited. It was the evidence of the Appellant and the 2nd Respondent that PW3 owned this company. Yet the credit approval memorandum of this company, Exhibit P121 on pages 9417 to 9427 of the Record of Exhibits Volume 27 indicated Mr. Anthony Gwam Nwachukwu as the Managing Director and Chioma Esiago as the Director. The corporate affairs commission document, Exhibit P205 (on pages 9794 to 9799 of the Record of Exhibits Volume 29) reveals that the company majority owned by Kemakolam brothers. This facility from Exhibit P121 pages 9417 to 9427 of the Record of Exhibits Volume 27 was stated to be for the purpose of financing the cost of acquisition of land for real estate development in GRA phase 2, Port-Harcourt, Rivers State. In this case the required documents were not obtained before the monies left the coffers of the Bank.
The PW10 testified that the credit files in respect of the loans were practically empty. The burden then shifted on the Appellant to tender or issue a subpoena on the Bank to produce the said credit files with the documents in them.
Another important issue to consider is where the Appellant faulted the Judgment of the trial Court because it relied upon and referred to the extra-judicial statements of person that were not called as witnesses and also that the Appellant’s right to fair hearing was infracted because the Appellant was not afforded the opportunity to cross-examine some of the Prosecution witnesses on their extra-judicial statements tendered through the IPO’s.
I am of the view that evidence of the IPO’s in relation to the statements which were extracted from the Prosecution witnesses in the course of their investigation cannot be regarded as hearsay evidence in view of the decision in OLAOYE VS. STATE (2018) 8 NWLR PART 1621 PAGE 281 where it was held among others that:-
“It has to be said that it is erroneous for the Appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence. That submission is a misconception since PW3 is the investigating police officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey it is direct evidence.”
See also the following cases:-
– AROGUNDADE VS. THE STATE (2009) ALL FWLR PART 469 PAGE 423.
– KAMILA VS. THE STATE (2018) LPELR – 43603 SC.
– ANYASODOR VS. THE STATE (2018) LPELR – 43720 (SC).
In the circumstance, it is my view that the evidence of the IPO’s and the statements received and obtained from the persons they interviewed cannot constitute hearsay evidence.
The learned Counsel for the Appellant argued that the Prosecution failed to call certain persons as witnesses such as Kingsley Umadia to confirm if he authorized Exhibits P95 and P97 on pages 9240 and 9250 to 9253 of the Records of Exhibits Volume 26.
The learned Counsel for the 1st Respondent submitted that the extra-judicial statements of those persons whom the Appellant contend were not called as witnesses are only corroborative evidence of independent and credible evidence of the Prosecution in the course of trial.
It is settled law that in criminal trials where the Prosecution fails to call a person as a witness the accused person is at liberty to call that person as a witness in his defence.
See -ODUNLAMI VS. NIGERIAN ARMY (2013) 12 NWLR PART 1367 PAGE 20.
– EKPEYONG VS. STATE (1991) 6 NWLR PART 200 PAGE 683.
In view of the foregoing, Issue Numbers 1, 2, 3, 4 and 5 are hereby resolved in favour of the 1st Respondent and against the Appellant.
ISSUE NUMBERS 6, 7, 8 AND 9 (Taken Together)
“(6) Whether the learned trial Judge’s evaluation of evidence is not wrongful and laced with speculative inferences in making a case for the 1st Respondent, failing to consider the defence of the Appellant, placing the burden of proof on the defence, and in resolving all doubts against the Appellant. (Distilled from Grounds 30, 31, 32, ,39, 45, 46 and 47).
(7) Whether the judgment of the Court below is not perverse being affected by the apparent and obvious bias demonstrated by the learned trial Judge against the Appellant by reliance on his personal assumptions and conclusions without any evidence on the records of the trial Court that the Appellant was “corky, combative and rude” and which said personal assumptions and conclusions ultimately influenced the learned trial Judge’s final decision. (Distilled from Grounds 41 and 42 of the Grounds of Appeal).
(8) Whether the judgment of the trial Court is not perverse and liable to be set aside following the trial Court’s denial of the Appellant’s constitutional right to fair hearing when the trial Court proceeded to deliver judgment based on incomplete records of the trial Court, missing exhibits, and when the trial Court proceeded to discountenance the entirety of the Appellant’s Reply on Points of Law without justification. (Distilled from Grounds 40 and 48).
(9) Whether the finding of guilty, the consecutive sentences passed on the Appellant and the order for restitution made against the Appellant by the trial Court, are not contrary to law which provides that a finding of guilty is to be pronounced on each count and a sentence accordingly passed on each such count, and when the evidence before the trial Court showed that the Appellant did not benefit in any manner from the alleged funds and when none of the alleged sums of money was traced to the Appellant or found in the Appellant’s possession? (Distilled from Grounds 49 and 50).”
The learned Counsel for the Appellant contended that the Learned trial Judge without any justification discountenanced and refused to ascribe probative value to the Appellant’s Exhibits D93, D94 and D95 which according to Counsel were crucial to the defence of the Appellant. The 1st Respondent tendered in evidence Exhibits P39, P40 to P50, P52, P95, P96 and P97. The documents according to Counsel are vital to the defence of the Appellant. In order to show that Futureview Securities Limited, Extra Oil Limited and Tradjek Limited were customers of Bank PHB and did applied for the loan in question when they submitted Exhibits P267, P269 and P271 being Board Resolutions of the Companies for the loan facilities they applied for in the Bank. Exhibits D93, D94 and D95 were the Appellant’s copies of Exhibits P267, P269 and P271 being Board Resolutions for Futureview Securities Limited, Extra Oil Limited and Tradjek Limited respectively.
The evidence Mr. Raphael Onwuzuligbo a handwriting expert was referred to. It was stated that the Learned trial Judge discountenanced the evidence.
The learned Counsel for the Appellant submitted that the refusal of the learned trial Judge to ascribe probative value to the said document led to a wrong conclusion as to the guilt of the Appellant and a miscarriage of justice against the Appellant.
It was also submitted on behalf of the Appellant that it is the duty of a Court to consider the defences available to an accused person no matter how stupid it may appear. The following cases were relied upon:- KIM VS. STATE (1992) 4 NWLR PART 233 PAGE 17 AT 27.
– GARBA VS. STATE (2017) LPELR – 41996 PAGE 12 AT PARAGRAPH B – C.
Reference was made to the Opening Statement of the Learned trial Judge in the Judgment delivered in this case and learned Counsel for the Appellant argued that the Learned trial Judge had already concluded that the loans were fictitious, he urged this Court to hold that manifest bias has been shown against the Appellant by the learned trial Judge. And that this has occasioned Miscarriage of Justice.
The learned Counsel for the Appellant also made reference to the issue of the missing records of proceedings of this criminal trial and missing Exhibits at the trial Court. He stated further that notwithstanding the facts surrounding the missing records and exhibits that the trial Court proceeded to deliver its judgment on 16/6/2021 without first resolving the observation and concern raised by the Appellant and the 2nd Respondent in their letters dated 5/2/2021.
The learned Counsel for the Appellant argued that the purpose for the Court keeping a record of all its proceedings is to ensure that the Judgment of the Court when eventually rendered truly and fully reflects the facts and evidence in support of the case. It was contended that the method adopted by the trial Court in proceeding to deliver judgment without the complete and authenticated records of the Court has caused great injustice to the Appellant. He relied on the following cases:-
– AUDU VS. F.R.N. (2013) 5 NWLR PART 1348 PAGE 397.
– AKINFE VS. STATE (1988) 3 NWLR PART 85 PAGE 729.
– ADEBISIN VS. STATE (2014) 9 NWLR PART 1413 PAGE 609.
– KALU VS. STATE (2017) 14 NWLR PART 1586 PAGE 522 AT 552 – 553 PARAGRAPHS G TO A.
It was contended further on behalf of the Appellant that the trial Court failed to consider the reply on point of law of the Appellant to the Prosecution’s final address, and that this amounts to a clear denial of the Appellant’s right to fair hearing. This according to Counsel has rendered the judgment to be perverse and liable to be set aside.
The learned Counsel for the Appellant also submitted that the finding of guilt, the consecutive sentences passed on the Appellant by the trial Court are contrary to the law. And also the order for restitution made against the Appellant when the evidence before the trial Court showed that the Appellant did not benefit in any manner from the alleged funds is wrong.
He went further in his submission that the term of four (4) years imposed on the Appellant in respect of each of the 20 Counts and ordered to run consecutively amounts to 80 years jail term which is ridiculous. He urged this Court to set aside the judgment entered against the Appellant by the trial Court.
It was also submitted on behalf of the Appellant that where there are several Counts in a charge, the sentence should not be made to run consecutively. And where the counts relate to one act or set of acts, sentences should not be ordered to run consecutively. The case of CLARK VS. STATE (1986) 4 NWLR PART 35 PAGES 387 – 388 was relied upon.
In conclusion, the learned Counsel for the Appellant urged this Court to allow the appeal, set aside the judgment and orders of the trial Court against the Appellant and in their place enter a verdict of discharge and acquittal in favour of the Appellant.
Learned Counsel for the Appellant referred to Exhibit P184 and challenged the reliance and holding of the trial Court that it was a confession. It was contended that there was no video recording of the statement. In his response, the learned Counsel for the 1st Respondent stated that it is on record that when the said statement was being tendered in evidence, there was no objection to its admissibility.
The essence of Section 9(3) of the Administration of Criminal Justice Law of Lagos State 2011 is to make sure that the Statement is voluntary.
It is settled law that the appropriate time to challenge the voluntariness of a statement is at the time it was being tendered in evidence by the Prosecution and not on appeal.
See the following cases:-
– ISA VS. STATE (2016) 6 NWLR PART 1508 PAGE 243.
– BELLO SHURUMO VS. THE STATE (2010) 19 NWLR PART 1226 PAGE 73.
– OGUNO VS. STATE (2013) 15 NWLR PART 1376 PAGE 1.
I am therefore of the view that the Appellant not having raised the issue of voluntariness at the time the statement was tendered and the trial Court having admitted same, was right to rely on it in its judgment. It was contended on behalf of the Appellant that the trial Court denied the Appellant his right to fair hearing because the trial Court disregarded the Appellant’s reply address on Points of Law.
The learned Counsel for the 1st Respondent has made reference to Appellant’s final address dated 3/2/2020 on pages 694 to 859 of the Record of Appeal Volume 2 and reply on points of law to the complainant’s Written Address dated 24/7/2020 on pages 1091 to 1149 of the Records of Appeal Volume 3. A perusal of paragraph 2.5 of Appellant’s Reply Brief on page 1094 of the Record of Appeal Volume 3 raised a new issue in relation to the duty of the Prosecuting Counsel to ensure that justice is done with reliance on Rule 37(4) and (5) of the Rules of Professional Conduct for Legal Practitioners 2007 and relied on United States case of – BERGER VS. UNITED STATES 295 US.78 (1935) NO.544.
Also in paragraph 6.0 of the Appellant’s final address on page 806 of the Record of Appeal Volume 2, the Appellant had canvassed argument on standard of proof in Criminal Matters being one beyond reasonable doubt by virtue of Section 135(1) of the Evidence Act. The Appellant in paragraph 2.14 of his reply brief on page 1100 of the Record of Appeal Volume 3 repeated the same line of argument.
In this type of situation, I am of the view that the Appellant ought to have shown and demonstrated before this Court the particular portion of his reply address which was a response to the issue raised by the 1st Respondent which the trial Court ignored and which if it had been considered it would have had major effect on the decision of the trial Court. Since the Appellant has failed to do this, the trial Court was therefore right in holding that several portions of the Appellant’s reply on point of law either raised new issues or amounted to a rehash.
The learned Counsel for the Appellant has also raised the issue of bias against the trial Court because of the pronouncement of the trial Court in the introductory part of the judgment and the finding that the Appellant was not convincing as a witness of truth and was cocky, combactive and rude to the Prosecution in the course of his cross-examination.
The term bias has been held in number of cases to mean:–
– A mental attitude or predisposition of a Judge to decide a cause or an issue in favour of a party in a matter. See – IBRAHIM VS. OJONYE (2012) 3 NWLR PART 1286 PAGE 108.
– KENON VS. TEKAM (2001) 14 NWLR PART 732 PAGE 12.
The learned Counsel for the 1st Respondent submitted that the fact that the trial Court in the course of ascribing probative value on the testimony of a witness disbelieved the Appellant and his witness before coming to the conclusion that they were not witnesses of truth cannot on its own establish an allegation of bias.
He relied on the case of – JIBRIN VS. FRN (2018) 13 NWLR PART 1635 PAGE 20 AT 30 where it was held among others that:-
“… the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses is almost sacrosanct as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole.”
See also:- ADELUMOLA VS. THE STATE (1988) 1 NWLR PART 73 PAGE 683.
– ENEKWE VS. INTERNATIONAL MERCHANT BANK OF NIGERIA LTD. & ORS (2006) 19 NWLR PART 1013 PAGE 146.
In view of the foregoing, I am of the view that the allegation of bias alleged by the Appellant lacks any substance and it is hereby disregarded.
It is settled law that if the decision or finding of a trial Court was not shown to be perverse in any way, an appellate Court will not interfere with such findings.
See – BELLO VS. FRN (2019) 2 NWLR PART 1656 PAGE 193 AT 207.
The attention of this Court was drawn to the fact that the Appellant was in the witness box from 14th May, 2019 (on page 5629 of the Records of Appeal Volume 12) to 6th day of November, 2019 (on page 6425 of the Records of Appeal Volume 14).
Therefore in my view the trial Court had the sole privilege and opportunity to calmly observe, watch and form an independent impression about the Appellant’s demeanor, attitude and credibility in the box.
It was contended on behalf of the Appellant that the trial Court convicted him on an incomplete record as certain Exhibits were said to have been misplaced by the trial Court in its proceedings of 1/4/2021 and the trial Court by electronic mail on 26/1/2021 (on page 1301 of the records of appeal Volume 3) requested from Counsel the proceedings of 13/4/2018 and 8/11/2018.
But by another Electronic Mail of 2/4/2021 on page 1449 of the Records of Appeal Volume 3 wherein it was stated by the Registrar of the trial Court that:-
“I am directed by Her Lordship, the Honourable Justice L. A. Okunnu to inform you of the fact that the missing Exhibits were found early this morning. They had been put in an unrelated place amongst the pack of Exhibits and so missed her attention.
Her Lordship apologizes for the trouble and inconvenience.”
According to the learned Counsel for the 1st Respondent, the Electronic Mail above knocks off the bottom of the Appellant’s contention that the trial Court delivered its decision when it had misplaced or lost important Exhibits. I agree with him in this regard.
The said Exhibits P101, P102, P103, P104, P105 and P106, P107, P108 and P111 are on pages 9276 to 9292 and 9369 to 9377 of the Records of Exhibits Volume 27 respectively.
It has not been argued that the said documents do not represent what was tendered in Court.
The trial Court had requested from the parties, their hand written notes which they obliged the Court. The Appellant’s Counsel provided his Record of Proceedings for both dates (which are on pages 1362 to 1405 of the Records of Appeal Volume 3) to the trial Court. It is not the case of Appellant that the record provided does not represent the true record of the proceedings of those dates.
It is therefore my view that upon the production of the Records of Proceedings of 13/4/2018 and 8/11/2018 by Counsel for the Appellant, the issue of missing record was laid to rest, it should not be be laboured. It is not in all cases where records of trial Court is missing that the Court will order a retrial. In this case, effort was made to procure the missing records and the effort has yielded fruits. But where it is not possible to retrieve the missing record, then the Court may order a retrial.
See the following cases:-
– OKOCHI VS. ANIMKWOI (2003) 18 NWLR PART 851 PAGE 1.
– ABISOYE VS. STATE (2016) LPELR – 40148 (CA).
The Appellant has argued that the trial Court was wrong to have sentenced him to a term of 4 years in respect of the twenty Counts and order the said terms to run consecutively. It was submitted on behalf of the Appellant that a total of 80 year jail term appears ridiculous.
The learned Counsel for the 1st Respondent on the other hand submitted that sentencing is exclusively the discretion of the trial Court and the Appellate Court will not interfere unless it is shown that the trial Court did not exercise that discretion judicially and judiciously. He referred to the following cases:-
– BAREWA PHARM. LTD. VS. FRN (2019) 9 NWLR PART 1677 PAGE 331.
– OKPOGO VS. FRN (2018) LPELR – 44271 (CA).
It was also submitted on behalf of the 1st Respondent that even if the trial Court was wrong in ordering the sentence to run consecutively and not concurrently, he submitted that it cannot be the basis upon which the conviction of the Appellant will be set aside. He contended that this Court has the unfettered powers under Section 15 of the Court of Appeal Act to step into the shoes of the trial Court and reduce or extend the sentence term without setting aside or interfering with the conviction. He relied on the case of SELE VS. THE STATE (1993) LPELR – 3030 (SC).
Conviction is the pronouncement of guilt while sentence is punishment or the price to pay for the commission of the offence. A trial Judge has the discretion in imposing the type of punishment provided by law on a convict. The Appellate Court will not interfere unless it is shown that the trial Court did not exercise that discretion judicially and judiciously.
The Appellant in this case was sentenced by the trial Court to a term of four (4) years imprisonment for each of Counts 1 to 11, 14 to 20 and 23 and 24 of the charge.
The sentence are to run consecutively.
I have examined the sentence imposed by the learned trial Judge along with the facts of this case.
I have to stress it that whether to make the sentence consecutive or concurrent is at the discretion of the Learned trial Judge who heard the case.
However, where the sentence is considered excessive or unreasonable, the Court has every reason(s) to re-examine this part of exercise of discretion of the lower Court; I will come to that at the end of this judgment.
Furthermore, it was argued that the trial Court ought not to have made a restitution order against the Appellant in so far as there was nowhere the Appellant was shown to have benefited from the stolen sum.
The law on Restitution is Section 297(1) of the Administration of Criminal Justice Law of Lagos State and it states as follows:-
“Where any person has been convicted of having stolen or having received stolen property, the Court convicting him may order that such property or part of it be restored to the person who appear to be the owner ….”
The Appellant in this case was convicted for conspiracy and stealing. The order was made against the Appellant and 2nd Respondent in their joint and several capacities. The trial Court was therefore right to have made the order of restitution against the Appellant.
Section 383(1) of the Criminal Code Law of Lagos State 2003 provides thus:-
“A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or the use of any other person anything capable of being stolen, is said to steal that thing.”
In AYENI VS. STATE (SUPRA), it was held among others by the Supreme Court that a person will still be convicted for the offence of stealing once the person has deprived another of its property for:-
“… his own use or the use of any other person …”
The Appellant has filed a reply brief of argument in which issues already argued in the Appellant’s brief of argument were re-argued. A reply brief as the name implies, is a reply to the Respondent’s brief. A reply brief is filed when an issue of law or arguments raised in the Respondent’s brief call for a reply. A reply brief should deal with only new points arising from the Respondent’s brief. In the absence of a new point, a reply brief is of no purpose and the Court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or the inadequacy in the Appellant’s brief.
For example, (i) Conspiracy to steal (ii) Absence of criminal benefit (iii) Inability to prove specific averments in the charge sheet (iv) Performance of Normal Banking Duties (v) Whether loans were contrived (vi) Failure to call vital witnesses etc were already argued in the Appellant’s brief. A reply brief is not to re-open argument already canvassed.
In the circumstance, the Appellant’s reply brief in this appeal is hereby discountenanced.
On the issue of sentence, considering the fact that the offences for which the Appellant was convicted arose in the course of a similar transaction, the trial Court ought to have exercised judicial caution in making an order that the sentences are to run consecutively. Standing on the powers of this Court in section 15 of the Court of Appeal Act, this appeal falls within the ambits of those cases where it is proper and just to interfere with the trial Court’s exercise of discretion in the sentence imposed on the Appellant, as I have earlier stated above.
In place of the trial Court’s order relating to sentencing as evidenced in the enrolment order of 16th June, 2021 and warrant of detention at page 3 of the additional record of appeal, this Court hereby impose on the Appellant a jail term of 4 years each for the group of counts bothering on conspiracy. Those 4 years are to run concurrently. As for the group of counts bothering on stealing, this Court hereby also impose a jail term of 4 years on each of the counts for which the Appellant was convicted by the trial Court. The term of years are also to run concurrently. However, considering the fact and circumstances of this case, the jail term of 4 years for the offences bothering on conspiracy and the 4 years bothering on the offences of stealing are to run consecutively.
Consequent upon the foregoing, issue numbers 6, 7 and 8 are resolved in favour of the 1st Respondent and against the Appellant while issue no. 9 is partly resolved in favour of the Appellant as far as sentencing is concerned.
For the avoidance of doubt, the Appellant is hereby sentenced to a jail term totaling 8 years.
In the end therefore, this appeal succeeds in part. The decision of the High Court of Lagos State delivered by L. A. Okunnu J., on the 16th day of June, 2021 wherein the trial Court convicted the Appellant is hereby affirmed only to the extent of Appellant’s conviction. The jail terms handed down on the Appellant is hereby set aside.
ABUBAKAR SADIQ UMAR, J.C.A.: I had the preview of the lead judgment just delivered by my learned brother, JIMI OLUKAYODE BADA, JCA and I agree with his reasoning and conclusion therein.
He dealt extensively and decisively with all the issues canvassed by the parties, and I will only reiterate the point he made on the issue of conspiracy to steal and stealing. This Court in the case of Mrs. Ebele Mbanugo vs. The State of Lagos (2017) LPELR-43581 relying on Supreme Court decision describes stealing as thus:
“when a person takes anything capable of being stolen or fraudulently converts to his own or the use of any other person anything capable of being stolen then that person is said to steal the thing.”
Whereas conspiracy to steal or to commit an offence is usually inferred from the proven facts or chain of event that are unbroken which unassailably shows consensus between two or more persons to commit a crime.
In the end, the appeal succeeds in part. I abide by the consequential order as to the sentence made in the lead judgment.
ADEBUKUNOLA ADEOTI BANJOKO, J.C.A.: I have carefully perused the draft copy of the judgment delivered by my learned brother, OLUKAYODE BADA JCA and found out that he rightly resolved all the issues in this judgment.
It is settled that for an offence of conspiracy to take place, there must be an agreement between two or more persons, the agreement must be a common purpose and the agreement may either be express or implied. See AKINLOLU VS STATE (2017) LPELR-42670(SC), OMOTOLA & ORS VS STATE (2009) LPELR-2663(SC), NDOZIE VS STATE (2016) LPELR-26067(SC), IBOJI VS STATE (2016) LPELR-40009(SC). The fact that the offence of stealing has not been established does not entitle the Appellant to an acquittal. Once the agreement of minds and the intention has been established, then an accused person will be held liable for the Offence of the Conspiracy. In this instant appeal, the Appellant played a role in the offence of stealing. He took instructions from the 2nd Respondent and also played a role in the disbursement of the contrived Loans. He confirmed the role he played in his Statement marked as Exhibit P184. Consequently, the trial Court was right to have convicted him for the offence of conspiracy as there was an agreement between him and the 2nd Respondent.
It is the law that any person who fraudulently converts to his own use or to the use of another person anything capable of being stolen is said to have committed the Offence of Stealing. See AYENI VS. THE STATE (2016) LPELR-40105 (SC), OYEBANJI VS THE STATE (2015) LPELR-24751SC, ADEJOBI & ANOR VS THE STATE (2011) LPELR. In this case, the Prosecution was able to establish that the Appellant stole for the benefit of the 2nd Respondent. The fact that the Appellant did derive a benefit from the offense will not entitle him to an acquittal. The trial Court was right to have convicted the Appellant for stealing.
For the above reasons, I abide by the decision of my learned brother to dismiss this appeal. To this end, the judgment of the trial Court in Charge No. ID/154C/2011 delivered on the 16th June, 2021 is hereby affirmed.
Appearances:
CHIEF CHRIS UCHE, SAN, SYLVIA OGWEMOH, SAN, and GORDY UCHE, SAN, with them, OLAKUNLE LAWAL, ESQ, AJIBOLA LAWAL-AKAPO, ESQ, FELIX AYEM, ESQ, RUTH NWANKWO, ESQ, and CONSTANCE AWOEGBA For Appellant(s)
DR. KEMI PINHEIRO, SAN, with him, CHUKWUDI ENEBELI, ESQ, SODIQ LAWAL, ESQ, and PRAISE NSOKO-NKWO, – for 1st Respondent
CHIEF WOLE OLANIPEKUN, SAN, PROFESSOR F. ODITA QC, SAN, BODE OLANIPEKUN, SAN, with them, F. ADARIGHOFUA PAUL MGBEOMA, JOHNSON AGWU, JAMES ADESULU, GRACELIA IHIABE, and SHALOM OKEKE – for 2nd Respondent For Respondent(s)
