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GARRI v. STATE (2022)

GARRI v. STATE

(2022)LCN/16723(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/AS/168CA/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

FESTUS GARRI APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON THE DUTY OF THE COURT IN CRIMINAL PROCEEDINGS

​The duty of a Court is to examine all defences of the accused persons, the Court did not consider the full purport and effect of Exhibit C5.
In USUMAN MOHAMMED MAFA v STATE (2012) LPELR -9297 (CA) this Court held thus:
It is however trite that in a criminal trial a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See UWANI v STATE (1988) 1 NWLR (PT 70) 274
See also: OLUSEGUN ADEGBOYE v THE STATE (2015) LPELR–41723 (CA); LADO v THE STATE (1999) 9 NWLR (PT 619) 369; ULUEBEKA v THE STATE(2000) 4 SC (PT 1) 203 AT 231; ARABI v THE STATE (2001) 12 WRN 158.
In CLEMENT PATRICK v THE STATE (2009) LPELR–8904 (CA) the Court held thus:
It is the law that where defence has been put up, it must be considered along with the totality of the evidence holistically by relating them to each other to pinpoint whether there are reasonable doubts in the circumstances of the particular case, and this should have been the case here. It must be considered, no matter how improbable or regarded as stupid.
See: OPEYEMI v STATE (1985) 2 NWLR (PT 5) 101.
PER OBASEKI-ADEJUMO, J.C.A.

THE POSITION OF LAW ON THE CRIMINAL OFFENCE OF CONSPIRACY

Therefore, the prosecution failed in its duty in order to discharge the burden of proof placed on it by law to establish ingredients of conspiracy as held by Onnoghen JSC in LUKMAN’S case wit:
An agreement between the two or more persons to do an illegal act or an act which is not illegal by illegal means and b) that illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
See also: ADELEKE ADETORO v FRN (2018)LPELR-43569 (CA). The lower Court fell into grave error by anchoring her conviction on suspicion and conjectures, in that she failed to take into account the documents tendered to understand the defence and consider the case of each accused on its own defence separately, thereby occasioning miscarriage of justice.
 PER OBASEKI-ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal stems from the decision of A. O. Ommogho, J of the Delta State High Court, Sapele Judicial Division delivered on 27th November, 2018 wherein the lower Court sentenced the Appellant to three years imprisonment each without the option of fine in respect of the offences of conspiracy to commit stealing to the sum of N21,000,000 (Twenty one Million Naira) and stealing of the sum of N21,000,000 (Twenty one Million Naira)

The facts of this case are; the Appellant who was the 3rd Accused person at the trial Court was charged along with four other persons at the Court and pleaded not guilty to the two count charge of conspiracy to steal and stealing the sum of N21,000,000.00 (Twenty one million naira).

The star witness at the trial Court is one Chief Anthony Amitaye who stated before the trial Court that the accused persons including the Appellant stole the total sum of N21,000,000.00 (Twenty one Million Naira) from the account of the Community with First Bank known as a FIRST TO OPERATE ACCOUNT OF UGBORHEN COMMUNITY which account was opened with Seplat Petroleum Development Company. He stated further that he saw a debit alert of N21,000,000.00 (Twenty One Million Naira) from the account and there was a reversal of the sum of N17,600,000.00 (Seventeen Million Six Hundred thousand Naira) to the said account.

The Prosecution called seven witnesses in proof of their case beyond reasonable doubt, while the Appellant testified for himself and called no witness. His defence was that; he is an indigene of Ugborhen Community and as a member of the community he is entitle to be given a loan from the community; he had tried severely to get loans from the previous executive but failed but when the 1st accused person became the president of the executive vide the Court order he asked him to apply for loans, which he did in writing; and based on that he was given a loan of N830,000.00 (Eight Hundred and Thirty thousand naira) to pay interest totalling N1,200,000.00 (One million, two hundred thousand naira). Under cross-examination, the Appellant was questioned to the effect that taking of loan with interest was a criminal offence.

​The trial Court in its judgment sentenced the Appellant to three years imprisonment each without an option of fine in respect of the two offences preferred against him.

Displeased with the judgment of the trial Court, the Appellant filed a Notice of Appeal on 29th November, 2018 containing five grounds of appeal.

He also filed his brief of argument on 25th November 2021 but deemed properly filed on 10th February 2022 prepared by Olayiwola Afolabi, Esq of SIGNATURE LAW HUB OFFICE wherein a sole issue was distilled for determination thus:
Having regard to the essential and fundamental ingredients of stealing which is the substantive offence and having regard to the sum of only N830,000.00 (Eight hundred and thirty thousand naira) given to the Appellant as loan and documented whether the trial Court was right when it convicted the Appellant in respect of the substantive offence of stealing and for conspiracy to commit stealing of the sum of N21,000,000.00 (Twenty one Million Naira)

​In like manner, the Respondent filed her brief of argument on 21st December, 2021 but deemed properly filed on 10th February, 2022 settled by Omamuzo Erebe Esq, Solicitor General/Permanent Secretary, MINISTRY OF JUSTICE and a sole issue was also formulated for determination thus:
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT WHEN HE CONVICTED THE APPELLANT IN RESPECT OF THE SUBSTANTIVE OFFENCE OF STEALING AND FOR CONSPIRACY TO COMMIT STEALING THE SUM OF 21,000,000.00 (TWENTY-ONE MILLION NAIRA).

APPELLANT’S ARGUMENTS
Counsel submitted that the current trend of law is that when accused persons are charge with both conspiracy to commit the main offence and the substantive offence together, the trial Court is enjoin first to consider the substantive offence and determine if the substantive offence has been proven against the accused person before the Court can now consider the conspiracy aspect of the said offence. He referred to the case of OSETOLA & ANOR v STATE (2012) LPELR 9348 (SC) at PP. 27-28.

​He further submitted that before the prosecution can prove the charge of stealing against the Appellant, he must prove the following ingredients beyond reasonable doubt; the ownership of the things stolen; that the thing stolen is capable of being stolen and; the taking or the conversion of the things stolen must be fraudulent. Relying on the cases of MUSA OYEBANJI v THE STATE (2015) 62 NCCQR; OSHINIGE v COP (1960) 5 (SC) 105; CHIANUGO v THE STATE (2002) 2 NWLR (PT 750) 225; MOHAMMED v STATE (2000) FWLR (PT 30) 2623 at 2226; STATE v ISIAKA (2013) AA NWLR (PT 1364) 162.

Counsel argued that there was evidence that sum of N21,000,000.00 (twenty one million naira) was not transferred by the Appellant into own personal account but into the personal account of the 1st accused person by virtue of the Court order and the only thing connecting the Appellant in this case is that he was given a loan of N830,000.00 (eight hundred and thirty thousand naira) by the 1st accused.

He further argued that having regard to the loan transaction which was given to the Appellant, what the Complainant ought to do is to take a civil remedy to recover the loan of N830,000.00 (eight hundred and thirty thousand naira) given to the Appellant if any and not to file a criminal complaint the Appellant and referred to the case of OBIAKOR v FRN (2021) JELR 108859 (CA).

​It is the contention of the Appellant that the main reason of the lower Court convicting the Appellant for stealing at page 338 of the record is against the decision of this Court AOKO v FAGBEMI (1961) 1 ALL NLR 400 where it was held that no person shall be convicted of an offence unless the offence is defined and the penalty is prescribed in a written law. He further contended that the receiving of the loan of N830,000.00 (eight hundred and thirty thousand naira) by the Appellant is not a criminal offence and the Apex Court equally affirmed that above position in AOKO v FAGBEMI (SUPRA) in the cases of ABIDOYE v FRN (2013) LPELR–21899 (SC) and AMADI v FRN (2011) ALL FWLR (PT. 561) 1588.

Counsel opined that the law is clear that before an accused person can be convicted of an offence, the ingredients of the offence must be proved against the accused and shown to have fallen with the four walls of such ingredients of offence charged. He cited the dictum of OLATAWURA, JSC in M. O. AMADI v THE STATE (1993) 3 NWLR (PT. 314) 644 at 633 PARAS H TO 664 and the case of CHARLES OKASI v THE STATE (2016) LPELR 40454 (CA).

Appellant submitted that having regards to the unchallenged documentary evidence that the amount given to the Appellant is the sum of N830,000.00 (eight hundred and thirty thousand naira) as a loan, the trial Court can no longer convict the Appellant for stealing the sum of N21,000,000.00 (twenty one million naira) having regard to clear fact that the evidence led against the Appellant was at variance with the particulars of the charge. He further submitted that the Court cannot convict the accused person because the certain and definite amount indicated in the charge as stolen has not been proved. The cases of ABIDOYE v FRN (SUPRA); AKINLEMIBOLA v COP (1976) JELR 48562 (SC) were cited in aid of submission.

It is the submission of the Appellant that the trial Court in convicting the Appellant closed its juridical eyes to the unchallenged documentary evidence of the loan given to the Appellant. Relying on the cases of ABIDOYE v FRN (SUPRA); MOHAMMED IBRAHIM v THE STATE (2015) 61 NSCQR 1097/(2015) JELR 54916 (SC) and OJO v FEDERAL REPUBLIC OF NIGERIA (2008) JELR 55811 (CA).

Counsel argued that PW5 destroyed the issue of conspiracy when he stated that the 3rd and 5th accused persons were not involved in any transfer of fund except the taking of loan. See page 364 of the record. 

The cases of STATE v SALAWU (2011) LPELR 8252 (SC); ALBERT IKEM v STATE (1985) LPELR 1472 (SC) and ALMU v STATE (2009) NWLR (PT. 1143) 31 were cited to submit that there will be no need to consider the offence of conspiracy having regard to the crucial fact that the prosecution has failed woefully to prove the substantive offence of stealing.

In conclusion, the Appellant urged the Court to discharge the Appellant in respect of the two offences to wit: conspiracy to commit stealing and stealing of the sum of N21,000,000.00 (twenty one million naira).

RESPONDENT’S ARGUMENTS
Counsel submitted that the standard required in a criminal prosecution is that of proof beyond reasonable doubt and referred to Section 135 of the Evidence Act 2011 and DIBIE v THE STATE (2004) 14 NWLR (PT 890) PG 284–285, PARA H–A.

​He further submitted that whenever an accused person is charged with the offence of stealing, the burden of proof is on the prosecution to prove the following ingredients; a. the ownership of the thing; and b. that the thing stolen is capable of being stolen; and that the thing was fraudulently taken or converted beyond reasonable doubt. The cases of OLAMOLU v STATE (2013) 2 NWLR (PT. 1339) PG 580 at PG 600 and BABALOLA v STATE (1989) 14 NWLR (PT. 115) PG 264 in aid of submission.

In establishing the first ingredient, Respondent made reference to the evidence led by the witnesses for the prosecution (PW7, PW6 and PW4) in establishing that the Freedom to operate Account was set up by SEPLAT for the Ugborhen community.

On the second ingredient that the thing stolen is capable of being stolen, Counsel referred to the evidence of PW1 that the sum of N21,000,000 withdrawn into the account of Mr. Christopher Jemijaye is a thing capable of being stolen.

On the third element of stealing, Counsel referred to the defence of the Appellant, the evidence of the 3rd Accused person, PW4 and PW5 to submit that the very act of giving out spurious loans to the Appellant and other accused persons and the 1st Accused person being the sole guarantor of the loan shows the intention of the Appellant and his cohorts to permanently deprive the Ugborhen community permanently of the use of the sum of N21,000,000.00, this against the backdrop that there was no application to grant loans to the community members that was made to SEPLAT. The purported loan as can be gleaned from Exhibit J–J4 had only one sole guarantor to all the purported borrowers was the 1st Accused, who disbursed the loan.

Counsel submitted that the fact that the Appellant and his co-conspirators shared the sum of N4,000,000 from the withdrawn sum of N21,000,000 on the same day is proof of their intent permanently deprive the Ugborhen community of the use of the sum of N21,000,000. He further submitted that the holding of a meeting consisting of the Appellant, the 1st accused and others as a meeting of Ugborhen community which extract was signed by one Sunday Jemijaye is another fraudulent act.

On the second offence of conspiracy, Counsel submitted that the offence of conspiracy is complete when two or more people agree to do a lawful act by unlawful means, the case of ADEJOBI v STATE (2011) 12 NWLR (PT. 1261) PG was cited in aid.

​He further submitted that the Courts establish the offence of conspiracy as a matter of inference to be deduced from certain criminal acts of the parties concerned. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and the meeting of the mind and need not be physical.

In addition, he stated that in this instant case the acts of the Appellant and his other co-conspirators i.e. the withdrawal of the sum of N21,000,000 into the account of the 1st accused and the subsequent sharing was all part of the scheme to steal the aforesaid sum. He referred to the holding of the trial Court at pages 338–339 of the record.
In conclusion, Counsel urged the Court to dismiss the appeal in its entirety.

RESOLUTION
The parties each distilled a sole issue each, I find that they are the same but differently framed. I shall adopt the Appellant’s issue because it encompasses the Respondent’s issue with a specific slant.

The starting point of this appeal is the charges. The charge is stealing of N21,000,000 but the facts are clear that the Appellant applied for loan after previous futile attempt to obtain it from the previous executive, he was called to come and collect the loan, he presented no collateral to the loan but was to pay back monthly for 12 (twelve) months totalling N1,200,000.00 (one million two hundred thousand naira). Exhibits J-J4 were tendered to back up the fact, the said N21,000,000 was withdrawn by the 1st Accused into his account, N4,400,000 was disbursed for loan purposes.

​The authority for the withdrawal from the account was as stated by Pw6 and Pw7, the bank officer in charge of transfer and the bank manager, no fraud was reported. They both acted on Exhibits L2 & L5 which were signature change and a Court order from Amukpe Customary Court same was confirmed to effect the transfer. Pw7 and their legal teams verified its genuiness, it changed the mandate. The 1st Accused and 2nd Accused were the new executives of the said Ugborhen community. Upon investigation by Pw5 – the Investigating police officer’s statement that aside the loan application forms, the 3rd and 5th accused persons did not participate in any aspect of the matter. N4.4 million was disbursed as loan to 2nd to 5th accused persons by the 1st accused person; the police report was Exhibit k. The Pw7 said the Court order was verified at page 380, Dw1 in his evidence was clear when he stated thus:
In 2008 there was a case before EMUDAINOWHO J IN SAPELE HIGH COURT in respect of chairmanship tussle in Ugborhen community for 2 years. On September 13th 2010 judgement was passed in my favour in S/8/2008, the faction of Ugborhen community filed a motion to set aside the judgement. On 29th of July 2011, the motion to set aside was dismissed. On 18th of October 2013, the judgement was enforced at Ugborhen town hall.
The elders of the community swore me in with my executives, we wrote a letter to the bank- Exhibits D4, D5 & D6. Community gave authorization letter – Exhibits D7, D8 & D9.

All this was unchallenged in cross-examination, therefore the SEPLAT knew about the change of guard, the community and the bank were economical with the truth, Pw1 was one of the old executives who refused to hand over the affairs of the community to the 1st & 2nd Accused and who raised the alarm, his evidence is tainted.

​How the Appellant fraudulently took the funds was not proved by the prosecution, since he was only a beneficiary of a loan, he was not in control of the funds neither is he an executive. All the counter signatures by SEPLAT stated by PW2 had been overtaken by the Court order and until set aside by another order of Court, it stands. It cannot be set aside by or in a criminal matter before which is not ceased of the materials and/nor jurisdiction on appeal, that would be usurping the jurisdiction of the Amukpe Customary Court which in my opinion is what the prosecution misled the Court to do.

What did the lower Court say on this? At page 338 of the record, the lower Court held that:
I reject the defences of the accused persons that their act of transferring the sum of N21m was pursuant to the judgement they got in suit No S/8/2008 as there was nothing to show by way of contempt proceedings that they were trying to enforce the judgement. Consequently, each one of the accused persons is herein convicted for the offence of stealing the sum of 321m property of Ugborhen community on the 9th day of July 2014

There is nothing in the judgment to show that the lower Court examined/evaluated the Court order and the Exhibits tendered in Court including the statements tendered in Court. What has a contempt proceeding got to do with a firm change of guard?

​The duty of a Court is to examine all defences of the accused persons, the Court did not consider the full purport and effect of Exhibit C5.
In USUMAN MOHAMMED MAFA v STATE (2012) LPELR -9297 (CA) this Court held thus:
It is however trite that in a criminal trial a Court is bound to examine and consider all possible defences from the evidence in favour of an accused person. See UWANI v STATE (1988) 1 NWLR (PT 70) 274
See also: OLUSEGUN ADEGBOYE v THE STATE (2015) LPELR–41723 (CA); LADO v THE STATE (1999) 9 NWLR (PT 619) 369; ULUEBEKA v THE STATE(2000) 4 SC (PT 1) 203 AT 231; ARABI v THE STATE (2001) 12 WRN 158.
In CLEMENT PATRICK v THE STATE (2009) LPELR–8904 (CA) the Court held thus:
It is the law that where defence has been put up, it must be considered along with the totality of the evidence holistically by relating them to each other to pinpoint whether there are reasonable doubts in the circumstances of the particular case, and this should have been the case here. It must be considered, no matter how improbable or regarded as stupid.
See: OPEYEMI v STATE (1985) 2 NWLR (PT 5) 101.

​There is evidence of the loan application, he did not withdraw the said amount, the bank was satisfied that there was no fraud, and that SEPLAT was not joined in the action for chairman tussle. It definitely does not impute a fraud. The effect of a Court order was clear; that there was no contempt proceeding is not sufficient proof of conspiracy nor ingredients of stealing. In addition, the loan was to be repaid with interest, where was fraudulent conversion imputed?

What is more worrisome is that, there was a contest for chairmanship, two factions and it is not in dispute that the 1st accused was sworn in as chairman, the Court jumped into the arena and considered other factors for a conviction, thereby setting aside a Court order which was not before her.

​The ingredients of stealing are; the ownership of the thing stolen, the money is the community money in a bank to be controlled as agreed but same was altered by the Court order which was attempted to be set aside but was refused, all the community needed was to join SEPLAT as a signatory and appeal, but there seemed to be a connivance and not the conspiracy to get through the back door what was refused by the Amukpe Court and the Sapele judgment in S/8/2008 pronouncing the 1st Accused as chairman.
Secondly, that the thing is capable of being stolen. Yes, but the Appellant is not in position to withdraw without the Court order, he is not one of the said executives but a beneficiary. Again, whether taking or the conversion of the things must be fraudulent. There is clear evidence that there was no element of fraud proved either by the prosecution Pw5, Pw6 and Pw7 who maintained that they acted on the Court order which was verified, even if the Court was misled, does it lie in the mouth of the trial Judge to address? It was not before her, there was no fact that the Court was misled, there are documents showing that there was a valid order. What the High Court did was to rubbish the order of Court. It is trite that a Court order is valid until set aside.
​The Appellant only received a loan per his loan application, this is contained in his statement, his evidence was not shaken, his statement was not faulted, there was no legal justifiable reason given not to accept the statement and oral evidence. The reason for the 1st Accused was applied across board for all accused person, this was a miscarriage of justice. In addition, what was received was N830,000.00 (eight hundred and thirty thousand naira), it was in the statement, same was in evidence which was consistent that it was given based on the loan application approved by the house before the sum of N21 million was not found in the Appellant’s account.
In ONAGORUWA v THE STATE (1993) LPLER–43436 (CA) the Court held that:
…the prosecution must stand or fall by proving the particular amount or by failing to prove same. A contrary position will be oppressive to the accused but certainly run against the provision of Section 33(5) Constitution 1979.
Besides, there is evidence that N17 million of the sum of N21 million was reversed from the account of the 1st accused into the account of Ugborhen community. See the evidence of PW5, PW6 & PW7.
Therefore, the Appellant cannot be charged for the whole sum of N21 million, the facts of this case is contrary to the contents of the charge and the lower Court erred when she held that it had been proved.

​This in my humble view was a loan transaction without any element of fraud, conspiracy has not been proved, there is no connection of minds or anything that points to conspiracy. The fact that he is known to the 1st accused does not prove fraud nor conspiracy, it settles on suspicion and conjecture which is not sufficient to ground a conviction.
In this appeal, there is no offence under the law against applying for loan or receiving loan neither is there penalty for this. See AOKO v FAGBEMI SUPRA; ABIDOYE v FRN; AMADI v FRN and OBIAKOR v FRN.
This ought to be a recovery civil action against the Appellant not a criminal summons, I am afraid I cannot find any law or facts of the alleged charge proved by the prosecution beyond reasonable doubt.
​The prosecution did not prove or adduce evidence to establish ingredients of conspiracy. The evidence of Pw3 to Pw7 were very clear, they neither mentioned nor indicted the Appellant, in fact, Pw5 exonerated the Appellant and 5th accused persons, that they did not participate in any aspect of the matter, this was in the police report and their statements Exhibits C3 & C5. There is nothing on record to establish that in furtherance of any agreement and that each of the accused persons participated in the illegality or conspiracy. See: LUKMAN ABUDULLAHI v STATE (2008) LPELR–28 (SC).
Therefore, the prosecution failed in its duty in order to discharge the burden of proof placed on it by law to establish ingredients of conspiracy as held by Onnoghen JSC in LUKMAN’S case wit:
An agreement between the two or more persons to do an illegal act or an act which is not illegal by illegal means and b) that illegal act was done in furtherance of the agreement and that each of the accused persons participated in the illegality.
See also: ADELEKE ADETORO v FRN (2018)LPELR-43569 (CA). The lower Court fell into grave error by anchoring her conviction on suspicion and conjectures, in that she failed to take into account the documents tendered to understand the defence and consider the case of each accused on its own defence separately, thereby occasioning miscarriage of justice.

In OJO v FRN SUPRA, the Court held that:
From the records, it is glaring the learned trial Judge in the judgments took into account matters which he ought not to have taken into account, shut its eyes to the obvious and drew wrong inferences from adduced evidence.

This Court has a duty to interference from adduced evidence. This Court has a duty to interfere with the findings of trial Court in the instant case as the conclusions reached by it were thereby occasioning a miscarriage of justice to the Appellants.

I adopt the above and apply it in this appeal. I resolve the sole issue in favour of the Appellant.

The appeal has merit and is allowed. The judgment of A. O. OMMOGHO, J delivered on 27th November 2018 is hereby set aside in respect of the conviction of the Appellant, the Appellant is discharged and acquitted forthwith. The sentence is set aside.

MISITURA OMODERE BOLAJI–YUSUFF, J.C.A.: I have read in advance, the judgment of my learned brother, Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with his reasoning and conclusion that this appeal has merit. I too allow the appeal.

JOSEPH EYO EKANEM, J.C.A.: I agree with my learned brother, OBASEKI-ADEJUMO. JCA. that this appeal is meritorious as the prosecution did not prove that the sum of N21,000,000.00 or a lesser sum of money was fraudulently taken or converted by the Appellant,

The Appellant applied for and was granted a loan of N30,000.00 which was to be repaid by him with interest. I fail to see any fraudulent intent in the transaction. I therefore the appeal, set aside the decision of the trial Court and, in its place. I discharge and acquit the Appellant

Appearances:

E. O. Afolabi. For Appellant(s)

O. Erebe, S/G, P/S, MOJ with him, J. A. Otite, DD, C.O. Agbagwu, DD. For Respondent(s)