MICHAEL v. FRN
(2022)LCN/17092(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, February 10, 2022
CA/LAG/CR/602/2019
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Muhammad Ibrahim Sirajo Justice of the Court of Appeal
Between
MICHAEL IKECHUKWU MICHAEL APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON DISCHARGING THE BURDEN OF PROOF IN CRIMINAL MATTERS
The Respondent has rightly submitted, and it is well settled that the burden of proving the guilt of an accused person in any criminal trial must be discharged by the prosecution beyond reasonable doubt. See Ogundiyan v. State [1991] 1 NSCC 448, The State v. Azeez (2008) 4 S. C. 188, Shande v. State (2005) 12 MJSC 152, John Agbo v. State (2006) 1 S.C. (PT. II) 73, Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011. This simply means there is credible evidence upon which the Court can safely convict; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval in John Agbo v. State (supra). Therefore, where all the ingredients of an offence have been credibly and clearly established by the prosecution, the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC), Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523, Ajayi v. State (2013) 2-3 MJSC (PT 1)59. PER OTISI, J.C.A.
DEFINITION OF STEALING
Section 279 thereof defined stealing as:
Any person who dishonestly:
(a) takes the property of another person; or
(b) converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.
Section 279(2) gave an expose of the meaning of dishonestly in this manner:
A person is deemed to dishonestly take or convert the property of another if he does so with any of the following, to:
(a) intent to permanently deprive the owner of the property;
(b) intent to permanently deprive any person who has a special interest in the property;
(c) intent to use the property as a pledge or a security;
(d) intent to part with the property on a condition as to its return which he may be unable to perform;
(e) intent to deal with the property in a manner that it cannot be returned in the condition it was in at the time of the taking or conversion; or
(f) intent to in the case of money, an intent to use it at his will although he may intend to repay the owner afterward.
By these provisions, the offence of stealing is committed where a person fraudulently takes or converts to his own use or the use of any other person, any property capable of being stolen, in any of the circumstances enumerated under Section 279(2) reproduced above.
Simply put, ingredients of the offence of stealing which must be proved by the prosecution are:
(a) that the thing stolen is capable of being stolen;
(b) that the accused has the intention of permanently depriving the owner of the thing stolen;
(c) that the accused was dishonest; and,
(d) that the accused had unlawfully appropriated the thing stolen to his own use.
See also Oshinye v. Commissioner of Police (1960) 5 SC 105, Chianugo v. State (2002) 2 NWLR (PT 750) 225, Adejobi v. State (2011) LPELR-97(SC), Ayeni v The State (2016) LPELR-40105(SC) Chyfrank Nigeria v. Federal Republic of Nigeria (2019) LPELR-46401(SC), Takim v The State (2014) LPELR-22667(CA). PER OTISI, J.C.A.
THE PRIMIARY DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE VALUE TO IT
Indeed, the settled position of the law, as expressively stated in Ayeni v State (supra), per Kekere-Ekun, JSC, page 31 of the E-Report, is that:
“…it is the primary duty of the trial Court to evaluate the evidence and ascribe probative value thereto. The trial Court has the unique advantage of listening to the witnesses testify and observing their demeanor. See Okoye v. Obiaso & Ors (2010) 8 NWLR (Pt.1195) 145, Amadi v. F.R.N. (2008) 12 SC (Pt. III) 55. Where a trial Judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its own views for the views of the trial Court. See Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282, Mogaji V. Odofin (1978) 4 SC 91 Odofin V. Ayoola (1984) 11 SC 72.”
See also Iko v The State (2001) LPELR-1480(SC), (2001) 7 SC (PT 11) 115, Egunjobi v FRN (2012) LPELR-15537(SC) and Obidike v The State (2014) LPELR-22590(SC). PER OTISI, J.C.A.
WHETHER OR NOT A TRIAL COURT CAN CONVICT AN ACCUSED PERSON FOR A LESSER OFFENCE THAN THAT WHICH HE WAS CHARGED FOR
The settled position of the law is that where a defendant is charged with an offence and it appears from the evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with that particular offence. See Odeh v State (2008) LPELR – 2205(SC), Ezeja v The State (2008) LPELR-1202(SC), Segun v The State (2018) LPELR-44693(SC). A fortiori, a trial Court can convict a defendant of a lesser offence where the one charged is not proved. See Adava v The State (2006) LPELR-74(SC); Amadi v The State (2019) LPELR-47041(SC). The conditions to be fulfilled in such circumstance are, first, that the elements in the offence charged and those in the lesser offence for which the defendant is convicted must be the same. Secondly, the evidence adduced and the facts found to be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the defendant was convicted. See Adeyemi v The State (1991) LPELR-172(SC), Okobi v The State (1984) LPELR – 2453(SC), (1984) 7 SC 47 and Segun v The State (supra). PER OTISI, J.CA.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): By an information dated 27/11/2017, the Appellant, and a second defendant, Michi Industries International Ltd, were arraigned before the High Court of Lagos State, Ikeja Judicial Division on the following three counts charge:
1. Stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011
Particulars of Offence
Michael Ikechukwu Michael and Michi Industries International Ltd on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division, dishonestly converted to your personal use the sum of Seven Million Four Hundred and Eight Thousand Naira (N7,408,000.00) being the value of Electronic Equipment and Instruments, property of Ibina Celestine.
II. Obtaining goods by false pretence contrary to Section 1(2) and (3) of the Advanced Fee Fraud and other Related offences Act.
Particulars of Offence
Michael Ikechukwu Michael and Michi Industries International Limited, on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division with intent to defraud, induced Mr. Celestine Ibina of NO. BB. 27H Alaba International Market, Ojo, Lagos to supply and deliver Electronic Equipment and Instruments valued N7,408,000.00 (Seven Million Four Hundred and Eight Thousand Naira) to Michi Industries International Limited on the false pretence that after two months of the supply you will pay back the amount, which pretence you knew to be false.
III. Issuance of Dud Cheque contrary to Section 1(1) of the Dishonoured Cheques (Offences) Act Cap D11, Laws of Federation of Nigeria, 2004.
Particulars of Offence
Michael Ikechukwu Michael and Michi Industries International Limited on or about the 13th March, 2013 at Lagos within the Ikeja Judicial Division, without sufficient funds to your credit in Zenith Bank Plc domiciliary Account no: 61516920 dated 13th March, 2013 for the sum of N3,408,000.00 (Three Million Four Hundred and Eight Thousand Naira) in favour of Ibina Celestine as payment for the product supplied to Michi Industries International Limited which cheque upon presentation for payment was returned unpaid.
The Appellant pleaded not guilty to the offences. At the trial, the prosecution called four witnesses while Appellant testified for himself, and the 2nd defendant. The evidence before the lower Court can be summarized in this manner: PW1, the primary complaint, was Mr. Celestine Ibina. He testified that sometime in 2012, the Appellant informed him that he had been awarded a contract for the supply of musical instruments/equipment and furniture by African Trinidard & Tobago Company (AT & T) in Agbara, Lagos and that he wanted PW1 to be involved. The Appellant further informed him that the contract was being financed by the Bank of Industry (BOI) on behalf of AT & T, and that he, PW1, would be paid after BOI releases payment. Upon confirmation that this was indeed the case, PW1 agreed to be part of the business. The Appellant thereupon gave him a list of goods, comprising of musical instruments and furniture, to supply. PW1 gave his prices for the said items. After negotiations, the parties agreed on N9.5 million. The items were supplied by PW1, and inspected by BOI. Two months after the supply, the Appellant gave him a cheque for N9.5 million, which was returned unpaid. PW1 later found out that the Appellant had been fully paid for the supply. When every attempt at retrieving payment from PW1 failed, he reported the matter at Morogbo Police Station, where the PW1 and the Appellant made statements. At the police station, the Appellant transferred N5 million to the Appellant. He disclosed that some of the items supplied were returned. The police intervened to persuaded PW1 to accept 30% of the items, worth N1.1 million, while the Appellant took 70%. PW1, who reluctantly accepted the return of the goods, insisted that the transportation cost of N8,000.00 also be paid by the Appellant, bringing the balance due to him from the Appellant to N3,408,000.00. The Appellant wrote a cheque for the said balance of N3, 408,000.00, which was again returned unpaid on presentation. PW1 subsequently wrote a petition to the Economic and Financial Crimes Commission (EFCC).
The Appellant gave evidence for himself, largely in line with the evidence for the prosecution. He admitted that he had a contract with AT & T to supply electronics and studio equipment worth N20,960,000,00, which was to be sponsored and funded by BOI. The aspect of the contract involving furniture was to be supplied by Century Base Ltd. DW1 testified that there was an agreement between himself and PW4, the CEO of Century Base Ltd, that because Century Base Ltd could not supply the furniture awarded to them, he should supply it. But that, since the approval was already given by BOI in the name of Century Base Ltd, when payment will be made, the money will be given to him. The Appellant however said that when the money was eventually paid, he was not given the money by PW4.
At the conclusion of trial, the Appellant was discharged and acquitted on Count 2, for obtaining by false pretences, and count 3, for issuance of a dud cheque, but was convicted on Count 1, for stealing. The learned trial Judge ordered that he should make full restitution to PW1 the sum of N3,408,000.00.
Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on 20/3/2019, on six grounds of appeal, pages 259 – 264 of the Record of Appeal. The Appellant’s brief was filed on 24/7/2019 but deemed on 23/1/2020. The Respondent’s brief was filed on 2/7/2021 but deemed on 24/11/2021.
At the hearing of the appeal on 24/11/2021, the Briefs of Argument were, respectively, adopted by A. Owolabi, Esq., for the Appellant, and by S.O. Saka, Esq., for the Respondent.
The Appellant distilled four issues for determination of this appeal:
i. Whether the learned trial Judge was right convicting 1st appellant of stealing when she said “I must agree with the defence therefore that the element of intention to defraud at the time of obtaining the goods under consideration but yet went ahead to convict 1st appellant when intention to defraud is one of the element(sic) of stealing”.
ii. Whether the learned trial Judge was right when the charge before her alleged 1st appellant dishonestly converted to his personal use sum of Seven Million Four Hundred and Eight Thousand naira (N7,408,000.00) being the value of Electronic Equipment and Instrument property of Ibina Celestine but went ahead to convict him for stealing without stating out what stole (sic) but only said “It is also hereby ordered that the defendant shall make full restitution of the sum of Three Million Four Hundred and Eighty Thousand Naira) to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”.
iii. Whether the Section 6 of the Economic and Financial Crimes Commission Act is such a robust and elastic statute that empowers the organization to colourate a failed commercial transaction that ought to have found action in a civil suit a crime.
iv. Whether from the totality of evidence adduced the offence of stealing has been established against 1st appellant hence rightly convicted.
The Respondent adopted the issues raised by the Appellant but further formulated the following issue:
Whether the prosecution proved its case beyond reasonable doubt sufficient enough and whether the trial Judge was right in convicting the defendant for the offence of stealing.
The Respondent noted that the Appellant failed to relate the issues raised for determination to any of the four grounds of appeal. Interestingly, I also note that the Respondent fell into the same ditch. The issue framed by the Respondent was not tied to any of the Appellant’s grounds of appeal. In Idam v NLPC (2021) LPELR-53400(CA) at pages 6 – 8, I expressed the following view:
“Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR – 3956(CA), Yussuf v. Ilori (2007) LPELR-5137(CA), Ukwuoma v. Okafor (2016) LPELR-41505(CA), Daisi v IGP (2019) LPELR-47897(CA). This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain that the issues have been distilled from the grounds of appeal or otherwise, and also ascertain whether any ground of appeal has been abandoned…
The point must, however, be made that the extant COA Rules do not prescribe that issues for determination in an appeal must be tied to the grounds in briefs of parties, on pain of a sanction. Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the current attitude of the appellate Courts appears to be one of liberality. See Agodi v Anyanwu (2014) LPELR-23746(CA), Ukwuoma v. Okafor (supra), Daisi v IGP (supra). In Otu v ACB International Bank Plc (2008) LPELR-2827(SC), the Supreme Court, per Tobi, JSC said, page 13:
“Issues are formulated from grounds of appeal and if they are based on valid grounds of appeal, an appellate Court must consider them.”
Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal. In that light, this Court now resounds the demand that counsel should tie issues for determination to the grounds of appeal in order to remove the additional burden of doing so on the Court.”
I stand by this same view. See also Fugro Subsea LLC v Petrolog Limited (2021) LPELR-53133(CA).
That said, an examination of the issues formulated by the Appellant for determination of this appeal will confirm that the issues indeed flow from the grounds of appeal. However, to my mind, Issue IV as formulated by the Appellant, which is the same as the sole issue framed by the Respondent, will resolve the issues in controversy herein. I shall therefore adopt the said Issue IV for determination of this appeal, and consider alongside any other arguments made by the parties.
Arguments
The Appellant contended that the element of fraud in obtaining goods under false pretence, for which the Appellant had been acquitted, cannot be said to be different from the one in stealing, especially when the sum claimed to have been stolen was associated with the same goods that were adjudged by the lower Court not to have been obtained under false pretence.
The Appellant argued that the learned trial Judge did not mention precisely what the Appellant was alleged to have stolen in the pronouncement of his conviction and sentence, referring to page 258 of the Record of Appeal, particularly the third line. It was submitted that the fraudulent intention by an accused person, required as element of the offence of stealing is foundational. That the intent to defraud is the act resulting to the commission of the alleged offence, and where the intention to steal is missing, the lower Court ought to have discharged and acquitted the Appellant.
It was submitted, assuming without conceding that Appellant stole, the intention to defraud that can result to his conviction would be the fraudulent intention exhibited at the commencement of the transaction in issue, and this intention must be manifestly established by the prosecution. In this case, that the Appellant did not exhibit at any time of the transaction to the conclusion of same, any intention to defraud PW1. From the outset of the transaction, the Appellant had informed PW1 that he will not be paid until BOI paid him. PW1 became impatient and did not wait until payment was made by the bank. The Appellant paid the PW1 N5 million of the sum, a day after he was paid by BOI, which was the day PW1 brought police to arrest Appellant.
Still on what constitutes an intent to defraud, reliance was placed on Onwudiwe v FRN (2006) no citation supplied. If the Appellant did not have fraudulent intention to obtain goods on false pretence, it is a paradox that he will be convicted for stealing unnamed goods, items, property or materials. An offender even at conviction must be made to know what he is being convicted for, and not just the pronouncement of stealing as did the trial Judge. It was also submitted that Section 278 of the Criminal Law of Lagos State, 2011 emphasized the need to establish an intention to defraud.
The Appellant reiterated that the learned trial Judge ought to have stated exactly what the Appellant was alleged to have stolen. On count 1, the charge was stealing of the sum of N7,408,000.00 being the value of Electricity Equipment and Instrument property of Ibina Celestine. The learned trial Judge however convicted the Appellant on this count 1 for stealing, without stating out what he stole but said “it is also hereby ordered that the defendant shall make full restitution of sum of Three Million Four Hundred and Eight Thousand Naira to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”. It was argued that this was at variance with the particulars of offence associated with count 1 which was N7,408,000.00.
It was argued that the failure to state what the Appellant stole in his conviction and sentence occasioned a miscarriage of justice. The case of Commissioner of Police v Agu 1980(1) NCR 234 was cited and relied on.
The learned trial Judge had agreed with the prosecution that there was no basis to investigate Century Base Company, mentioned by the Appellant in his defence. The decisions in Ogunleye v The State (1991) 3 NWLR part 177 at 4, Opeyemi v The State (1985) 2 NWLR (Pt.5)101 were cited and relied on to submit that a trial Court has a duty to consider and examine a defence raised by the defendant, no matter how improbable. To do otherwise would amount to a miscarriage of justice, which would result in the decision being set aside. The evidence of the Appellant against the evidence of the prosecution on the issue of Century Base Company was referred to in submitting that the lower Court ought to have accepted and acted on the evidence of the Appellant.
It was further submitted that the provisions of Section 6 of the Economic and Financial Crimes Commission Act, which gives the EFCC the responsibility of conducting an investigation into whether any person has committed a financial crime under the Act, implies that when a report by way of a petition is made to the agency, it has a responsibility to x-ray such petitions and see whether the report is one that can be established in crime or one of civil action. That the content of a petition is not what makes it a crime but the transaction to be investigated.
It was argued that a business transaction between two persons, where one of the parties paid part of the sum in the agreement and the remaining balance for the goods became contentious between them, cannot be said to amount to economic crime to the extent of the offence of stealing. PW1 and Appellant entered into contractual agreement part of the sum in question was paid and the remaining sum became contentious in form of returned goods. That having regard to the evidence before the trial Court, it was not a crime. The decision in Diamond Bank v Opara (2018) 7 NWLR (Part 1617) 1 was cited and relied on.
It was submitted that from the totality of the evidence by the prosecution, the offence of stealing was not established against the Appellant by credible evidence, citing Ayeni v The State (2016) LPELR 40105(SC); Oyebanji v The State (2015) LPELR 24751(SC). The Court was urged to allow the appeal and set aside the conviction and sentence of the Appellant.
For the Respondent, it was submitted that its duty was to prove the elements of the alleged offences beyond reasonable doubt, citing State v Bakare (1987) 1 NWLR (PT 52) 579; Nwankwo v FRN (2003) 4 NWLR (PT 809) 1; Onagoruwa v State (1993) 7 NWLR (PT 303) 49 at 85; Egbirika v State (2014) 4 NWLR (PT. 1398) 558 at 585. On the elements of the offence of stealing, reliance was placed on Ayeni v The State (SC. 447/2011) (2016) NGSC 85; Aosika v State (2010) 9 NWLR (PT 1198) 49 at 52; Nwaturuocha v State (2011) 6 NWLR (PT 1242) 170 at 174. The Respondent relied on the evidence adduced to submit that the elements of stealing were established by the prosecution. The evaluation of evidence and ascription of probative value lay within the province of the lower Court, which had the opportunity of hearing the testimony of witnesses and observing their demeanor. It was submitted that an appellate Court would not generally interfere with the findings of a trial Court in this regard unless shown to be perverse. See Onogwu v State (1995) 6 NWLR (PT 401) 276 at 552. The Court was urged to discountenance the submissions of the Appellant’s Counsel.
It was submitted for the Respondent that the EFCC was empowered to arrest, investigate and prosecute financial crimes such as exhibited by the actions of the Appellant.
On the elements of the offence of stealing reliance was placed on FRN v Ikpe (2005) 2 QCCR 155 at 196. It was submitted that the money alleged to have been stolen was N9.5 million, property of PW1 and his other colleagues. The learned trial Judge merely ordered the Appellant to pay the unrecovered balance of N3, 408,000.00. The Appellant did not deny the transaction or deny the outstanding balance. The Respondent contended that the fact that the Appellant opted to use the money for his own purport until later when part of it was recovered as exhibits, meant that he not only intended to deprive the victims of the use of their money, but had conclusively converted the money. That any other explanation was an afterthought. The case of Onwudiwe v FRN (2006) 10 NWLR (PT 988) 382 at 427 was cited and relied on.
The Respondent submitted that the burden of proof placed on it by virtue of Sections 135 and 137 of the Evidence Act, 2011 had been discharged. Reliance was placed on C & C Const. Co Ltd v Okhai (2003) 18 NWLR (PT 851) 79 at 100; Torri v National Park Service of Nigeria (2011) 13 NWLR (PT 1264) 365 at 382. The Court was finally urged to dismiss the appeal.
Resolution
The Respondent has rightly submitted, and it is well settled that the burden of proving the guilt of an accused person in any criminal trial must be discharged by the prosecution beyond reasonable doubt. See Ogundiyan v. State [1991] 1 NSCC 448, The State v. Azeez (2008) 4 S. C. 188, Shande v. State (2005) 12 MJSC 152, John Agbo v. State (2006) 1 S.C. (PT. II) 73, Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011. This simply means there is credible evidence upon which the Court can safely convict; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval in John Agbo v. State (supra). Therefore, where all the ingredients of an offence have been credibly and clearly established by the prosecution, the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC), Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523, Ajayi v. State (2013) 2-3 MJSC (PT 1)59.
The Appellant was convicted of stealing, punishable under Section 287 of the Criminal Law of Lagos State, 2011. Section 279 thereof defined stealing as:
Any person who dishonestly:
(a) takes the property of another person; or
(b) converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.
Section 279(2) gave an expose of the meaning of dishonestly in this manner:
A person is deemed to dishonestly take or convert the property of another if he does so with any of the following, to:
(a) intent to permanently deprive the owner of the property;
(b) intent to permanently deprive any person who has a special interest in the property;
(c) intent to use the property as a pledge or a security;
(d) intent to part with the property on a condition as to its return which he may be unable to perform;
(e) intent to deal with the property in a manner that it cannot be returned in the condition it was in at the time of the taking or conversion; or
(f) intent to in the case of money, an intent to use it at his will although he may intend to repay the owner afterward.
By these provisions, the offence of stealing is committed where a person fraudulently takes or converts to his own use or the use of any other person, any property capable of being stolen, in any of the circumstances enumerated under Section 279(2) reproduced above.
Simply put, ingredients of the offence of stealing which must be proved by the prosecution are:
(a) that the thing stolen is capable of being stolen;
(b) that the accused has the intention of permanently depriving the owner of the thing stolen;
(c) that the accused was dishonest; and,
(d) that the accused had unlawfully appropriated the thing stolen to his own use.
See also Oshinye v. Commissioner of Police (1960) 5 SC 105, Chianugo v. State (2002) 2 NWLR (PT 750) 225, Adejobi v. State (2011) LPELR-97(SC), Ayeni v The State (2016) LPELR-40105(SC) Chyfrank Nigeria v. Federal Republic of Nigeria (2019) LPELR-46401(SC), Takim v The State (2014) LPELR-22667(CA).
The evidence before the lower Court was largely straightforward. It was not in dispute that the contract entered into by the Appellant and PW1 for the supply of musical instruments/equipment to AT & T, sponsored by BOI, was worth N9.5 million. It was not in dispute that some of the items worth N1.1 million were returned to PW1. It was also not in dispute that the sum of N5 million was paid to PW1 by the Appellant, leaving a balance of N3,400,000.00. It was also not disputed that the transportation cost for the returned items was N8,000.00. Under cross-examination, the Appellant had said, page 159 of the Record of Appeal:
“It is possible I agreed to pay him N8,000 for the transportation of the returned goods to add up to N3.408 (sic), its been a long time.”
This was certainly not a categorical denial. The total sum outstanding was therefore N3,408,000.00. This was the sum that the learned trial Judge, in convicting him on Count 1, held that the Appellant intended to permanently deprive PW1. The learned trial Judge then ordered the Appellant to make full restitution of the said sum of N3,408,000.00.
To my mind, the relevant question is whether the Respondent established that the Appellant had acted with fraudulent intention in failing to pay over the outstanding sum of N3,408,000.00 to PW1. As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently, and with an intent permanently to deprive the owner of the thing of it. Contrary to the postulations of the Respondent, the unsubstantiated evidence of PW1 that he previously had a transaction with the Appellant in which the Appellant defrauded him is not unassailable proof that the Appellant acted herein fraudulently or that the Appellant should be condemned as being a dishonest character. In any event, PW1 gave no details of the said transaction. I do not see its relevance herein.
The entire sum due to PW1 on his contract with the Appellant was N9.5 million. The Appellant and PW1 had the understanding that PW1 would be paid when BOI paid for the contract. The learned trial Judge in evaluating the evidence adduced, made the following findings, pages 255 – 256 of the Record of Appeal:
“The evidence before the Court is that when the money eventually hit the Defendant’s Account in Exhibit 6 on 25/02/2012, the 1st Defendant never called PW1 to inform him with a caveat that some goods were rejected so as to work things out between them. PW1’s evidence is that the 1st (sic) goods and both his capital and profit had since then been tied down. The cheque of N20M paid into the Defendant’s account was well over the N9.5M goods PW1 had supplied the Defendants before the rejection of certain goods. The 1st Defendant never called PW1 on the pretext that he gave “someone” with no name to give a cheque to PW1. This confirms that he admitted owing PW1, but it was PW4 that eventually called PW1 to let him know that the Defendants had been paid while he, the 1st Defendant was still pleading with PW1 to be patient claiming that he had not been paid. This led to PW1 inviting the police to arrest the 1st Defendant and after much interrogation and interventions, the 1st Defendant reluctantly told the Police that he could only pay N5M to PW1 as certain goods were rejected, it was at that stage PW1 knew for the first time that PW4 returned some goods. The 1st Defendant testified that he was forced to take 70% of the returned goods while 30% was returned to PW1. Since the N5M had been forced out of the Defendants out of the N9.5M that was the initial value of the goods supplied before the returned goods, the balance would have been N4.5M which the 1st Defendant has alleged was the value of the returned goods out of which 70% was shared to him and 30% to PW1, which culminated in him being again forced to sign a cheque for N3,408,000.00, the N8,000 he admitted was what was agreed as the transport cost of the returned goods to PW1’s shop. The issue is therefore no longer that the 1st Defendant was forced to take 70% of the goods, but the fact that the goods never left his possession. He did not tell the Court what he did with the said goods, either selling or otherwise making use of same for his own benefit. The value therefore of the remaining 30% is what was agreed at the Police Station and which is also logical, to be N3,400,000.00 which has been due for payment to PW1 since that February 2013 and which has remained unpaid till date. You cannot retain the goods and not pay for them.
The evidence of PW1, PW4 and DW1 also shows that the 1st Defendant actually padded the prices of the goods supplied by PW1 to PW4 and after PW4 found out the truth from the 1st Defendant. He demanded for a refund of the calculated excess of N8M which is also reflected in Exhibit 6. This angered the 1st Defendant so much that he went after PW1 to challenge him for divulging the actual prices at which he supplied the goods to the Defendants, as stated in his own oral testimony in Court. The evidence of PW4 in supporting his demand for this refund is that what he agreed with the 1st Defendant was a supply of all the goods at the real Market value for which he would be paid N1M for his services. The 1st Defendant himself in his oral evidence in Court testified that when he told PW4 that he would get the supplies for him at the best Market value he would get, PW4 promised that he would give him N1M for this. This had corroborated the said evidence by PW4 and for which the 1st Defendant went charging after PW1. It therefore confirms the fact that the agreement DW1 had with PW4 was the supply of the goods at the Market value and the Defendants’ profit would only be N1M! But of course, this would not satisfy the 1st defendant even though he would still have N7M left in the account after the N8M paid back to PW4 and the N5M, he was forced to pay PW1, out of which anyone with a moral uprightness would have paid PW1’s outstanding N3,408,000 and the Defendants would still have a profit about N1.5M.
It was never in their contemplation that the Defendants would hike up the prices of the good supplied and still be paid N1M. That is why even by his own evidence he went to challenge PW1 for letting PW4 know the exact prices at which he PW1 supplied the goods. He was and is still smarting from the excess of N8M he was forced to refund.
Because of the unwillingness of the 1st Defendant to pay the balance of N3,408,000 to PW1, he secretly parked out of his house which PW1 knew and relocated. It took the private intelligence of PW1 to trace him to his new house where his arrest was eventually executed after surveillance at the break of dawn before he could sneak out. It is therefore clear that the Defendants never intended to pay the balance of N3,408,000.00 even until now when unassailable defences are still being raised. It does give the impression that the 1st Defendant is not a man given to honouring reciprocal obligations…
It should be pointed out that the Defendant’s Account in Exhibit 6 was in perpetual debit balance for 2 years unbroken until the N20M credit arising from the supply of the goods of PW1 to him middleman between PW1 and PW4, PW1 gave up his goods on credit for under N10M while the source of the money was not a windfall to PW4 but a loan to be repaid which happily has been confirmed to have been repaid. Only the Defendants had no monetary contribution in the whole transaction and he alone wanted to reap the benefit of virtually everything PW1 and PW4 had sown. There was no single credit inflow in Exhibit 6 for 2 years until the N20M came in for which any reasonable man should have been grateful to both PW1 and PW4 but no, the 1st Defendant chose to cheat them both because PW1 gave him away leading to the “loss” of N8M he was forced to return to PW4, he decided never to pay PW1 either the whole of the value of the transaction or the balance of N3,400,000 which has remained unpaid till date, 6 years on.”
In his defence, the Appellant had said that Century Base Ltd, which was to supply furniture to A T & T, backed out of the contract, after their name had been given to BOI. He had agreed with PW4 and Century Base that he would supply the furniture and when payment is made, it would be transferred to him. The Appellant further said he approached PW1, who introduced him to a certain Chucks, that agreed to supply the furniture. That the total worth of the entire contract with was N20, 926, 000.00 but that he was only paid N20 million. He said that Century Base was later paid for the furniture but that the money due to him, N9.6 million, was not transferred to him by PW4, the CEO of A T & T. Under cross-examination, the Appellant said, page 159 of the Record of Appeal:
“N3.408 million is not with me. It is with PW4. I introduced PW1 to PW4.”
Any involvement of Century Base in this matter was not investigated by EFCC. In justifying the failure to investigate Century Base Ltd, PW2 testified that Century Base was not the one awarded the contract by A T & T. Under cross-examination, page 78 of the Record of Appeal, he said:
“We did (sic) investigate Century Base because it was not the one that was awarded the contract. It was BOI and the money was paid by BOI, not Century Base. It is not connected to the contract; the money was paid to the Defendant not Century Base. The excess of N8 million paid to the Defendant was returned by him.
This matter had nothing to do with the 2nd Defendant and Century Base. The Defendant executed the contract by supplying the Musical equipment and electronic and he was subsequently paid.”
PW4, on his part, said, page 117 of the Record of Appeal:
“I contracted the Century Base Company to supply a generator. That is the only relationship I had with Century Base and none between me, Century Base and the Defendant. Yes, the transaction between me and the Century Base is independent of the transaction between me and the Defendant.”
Under cross-examination, PW4 further said, page 119 of the Record of Appeal that if he gave Century Base any supplies to make, outside the generator, it could be confirmed from their invoice, but that for whatever they supplied, they were paid directly. PW4 reiterated that his contract with Century Base had nothing to do with the Appellant. That the Appellant was paid directly based on his invoice while Century Base was also paid directly for what they had been contracted to supply.
The learned trial Judge found in line with the assertions of prosecution on this issue and held as follows, page 256 of the Record of Appeal:
”It will also appear that the 1st Defendant is trying his defence to a certain transaction with one Century Base Company for the supply of furniture to PW4 on behalf of the Defendants and for which some payment has allegedly been made but in the hands of PW4, PW4 has denied any such transaction in existence stating that the only business he had with Century Base was a direct transaction for the supply of a Generating set which had nothing to do with the Defendants. This clearly finds support in Exhibit 12 which is the Bank of Industry’s Payment Advice Authorization FCMB showing that all the Century Base ever supplied Africa Trinidad and Tobago Company as a 100 KVA Basic Generator and confirmed by the said Century Base Limited’s letter signed its CEO, Nneji Chike on 20/03/2013. There is no other evidence beyond this before the Court and he who asserts has the burden of proof. The Defendants who assert that any furniture was at all supplied by Century Base to PW4 or anyone at all never proved same. This confirms PW4’s oral testimony in Court and his extra-judicial. Statements to EFCC in Exhibit 11. The Defendant tendered several documents but none touching on any alleged supply of furniture on their behalf by Century Base. It is very clear from the Defendant’s Statement of Account in Exhibit 6 that the N8M refunded to PW4 was from the N20M and no other money, having been paid the same day the account was credited with the N20M. I therefore agree with PW2 the Investigating Officer that there was no basis to investigate Century Base Company at all.”
The learned trial Judge then concluded that, page 257 of the Record of Appeal:
“…the Defendants never intended to pay up the outstanding balance of their indebtedness of N3,408,000.00 to PW1 even though the full value for the goods is with the Defendants which translates to fraudulent conversion.”
I see no miscarriage of justice suffered by the Appellant here. He who asserts, proves. The Appellant failed to prove his assertions that any payment was due to him from Century Base. Further, even if PW4 was meant to have given the Appellant the payment for any furniture he supplied in the stead of Century Base for A T & T, how any such payment impacted on the sum of N3,408,000.00 due to PW1 from the Appellant was not clear. The Appellant did not demonstrate by credible evidence how any such payment due to Century Base but which allegedly ought to have been paid to him by PW4, would in turn affect the unpaid balance due to PW1.
The learned trial Judge, admirably, captured the pith of the evidence of the parties, evaluated and ascribed probative value to the same. The evidence before the trial Court amply demonstrated the fraudulent intention of the Appellant to deprive PW1 of the entire sum due to him on their agreed terms. It was only at the police station that he paid to PW1, N5 million and returned to him N1.1million worth of the items.
I see absolutely no reason to disturb the conclusion of the learned trial Judge. Indeed, the settled position of the law, as expressively stated in Ayeni v State (supra), per Kekere-Ekun, JSC, page 31 of the E-Report, is that:
“…it is the primary duty of the trial Court to evaluate the evidence and ascribe probative value thereto. The trial Court has the unique advantage of listening to the witnesses testify and observing their demeanor. See Okoye v. Obiaso & Ors (2010) 8 NWLR (Pt.1195) 145, Amadi v. F.R.N. (2008) 12 SC (Pt. III) 55. Where a trial Judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its own views for the views of the trial Court. See Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282, Mogaji V. Odofin (1978) 4 SC 91 Odofin V. Ayoola (1984) 11 SC 72.”
See also Iko v The State (2001) LPELR-1480(SC), (2001) 7 SC (PT 11) 115, Egunjobi v FRN (2012) LPELR-15537(SC) and Obidike v The State (2014) LPELR-22590(SC).
The Appellant contended that the learned trial Judge failed to state what he stole in the judgment. The Appellant was charged in count 1 for stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011. The particulars of the offence stated N7, 408,000.00 as the sum alleged to have been stolen. The learned trial Judge held, page 258 of the Record of Appeal:
“The Defendants intend still to permanently deprive PW1 of the money in issue and they are hereby convicted on Count 1.
The punishment for stealing under Section 287 is 3 years imprisonment. The 1st Defendant is accordingly sentenced to 3 years imprisonment with effect from 13th February, 2018 when he was remanded in prison custody by this Court.
It is also ordered that the Defendants shall make full restitution of the sum of N3, 408,000.00 (Three Million, Four Hundred and Eight Thousand Naira) to PW1, Celestine Ibina and the Prosecution is to employ every means within its powers to ensure same.”
The conviction of the Appellant was clearly for stealing, as charged. However, while he was charged for stealing N7,408,000.00, the evidence established the sum in issue to be N3,408,000.00. This is the sum for which the Appellant was ordered to make restitution.
The settled position of the law is that where a defendant is charged with an offence and it appears from the evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with that particular offence. See Odeh v State (2008) LPELR – 2205(SC), Ezeja v The State (2008) LPELR-1202(SC), Segun v The State (2018) LPELR-44693(SC). A fortiori, a trial Court can convict a defendant of a lesser offence where the one charged is not proved. See Adava v The State (2006) LPELR-74(SC); Amadi v The State (2019) LPELR-47041(SC). The conditions to be fulfilled in such circumstance are, first, that the elements in the offence charged and those in the lesser offence for which the defendant is convicted must be the same. Secondly, the evidence adduced and the facts found to be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the defendant was convicted. See Adeyemi v The State (1991) LPELR-172(SC), Okobi v The State (1984) LPELR – 2453(SC), (1984) 7 SC 47 and Segun v The State (supra).
The Appellant was charged with and convicted for stealing. The sum of N7,408,000.00 was stated in the particulars of the offence. The evidence led however was that the contract sum was N9.5 million out of which N3,408,000.00 remained unpaid. The evidence established that the sum of money which the Appellant fraudulently intended to permanently deprive PW1 of was N3,408,000.00. The Appellant was not misled or confused. It was the same facts and evidence that was led in support of the offence of stealing, leading to his conviction. There was no miscarriage of justice in the Appellant’s conviction. See also Ogunade v AG of the Federation (1971) LPELR-2320(SC), The Nigerian Air Force v Kamaldeen (2007) LPELR-2010(SC). It cannot therefore be said that the Appellant was not informed of what he stole. The case of Commissioner of Police v Agu (supra), relied on by the Appellant, which is a decision of the High Court of Imo State sitting in its appellate jurisdiction, is not at all applicable herein.
The Appellant had argued that there was no need to have criminalized the delay in payment to PW1. The evidence adduced however demonstrated that this was not merely a business transaction gone sour but a complaint that deserved the attention of EFCC had arisen. Evidence of the Appellant’s fraudulent intent elevated it to criminal activity. The petition to the police and subsequently, to EFCC, which ignited the prosecution of the Appellant were therefore in order. See Sections 6 and 7 of the EFCC Act, 2004. See also Ahmed v FRN (2009) LPELR-8895(CA); Akingbola v FRN (2012) LPELR-8402(CA).
Elements of the offence of stealing were established by the Respondent by credible evidence against the Appellant, beyond reasonable doubt. Issue IV, as well as other issues formulated for determination, are therefore resolved against the Appellant.
This appeal is completely without merit. It fails and is hereby dismissed. The conviction and sentence of the Appellant by the lower Court in Count 1 of Charge No: ID/6590C/2019 is hereby affirmed.
ABUBAKAR SADIQ UMAR, J.C.A.: My Lord and my learned brother, ONYEKACHI AJA OTISI, JCA granted me the privilege of reading before now the comprehensive leading judgment just delivered in this appeal. I entirely agree with the reasoning and conclusion.
The appeal is unmeritorious and deserves to be dismissed.
I hereby dismiss the appeal and affirmed the conviction and sentence of the Appellant by the lower Court.
MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I am in agreement with the reasoning and conclusions reached therein that the appeal is bereft of merit. I too dismiss the appeal and affirm the conviction and sentence passed on the Appellant by the lower Court.
Appearances:
A. Owolabi, Esq. For Appellant(s)
S.O. Saka, Esq. For Respondent(s)
