OLUKAYODE ADEOYE v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12785(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/828C/18
RATIO
CRIMINAL LAW: OFFENCE OF CONSPIRACY
“…the ingredients to be established by the prosecution in proof of the offence of conspiracy. Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means, in the old case of NJOVENS V. STATE (1973) 5 SC 12. The Supreme Court held as follows:
The overt act or omission which evidenced conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See: R V. Meyrick & Ribuff (1929) 21 C.A.R. 94. They need not all have started the conspiracy at the same time for the conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose common between them and in proof of conspiracy the acts or omissions (and the commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with that offence. See also: ALH MOHAMMED SANI ABACHA & ORS V. THE STATE 11 NSCQR 345 at 457-458 and 468-469, and JOSEPH OKOSUN & ORS V. ATTORNEY GENERAL BENDEL STATE (1985) 11 S.C 194. The offence of conspiracy becomes established where the following ingredients are established by the prosecution: I. There must be an agreement of two or more persons, in other words there must be meeting of two or more minds. II. The persons must plan to carry out an unlawful act or illegal act which is an offence. III. Bare agreement to commit an offence is sufficient. IV. An agreement to commit a civil wrong does not give rise to the offence, the law only provides for criminal conspiracy. V. One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator. VI. Conspiracy is complete if there are acts on the part of the accused which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective. See: KAZA V. THE STATE (2008) 1-2 SC, 151, OSUAGWU V. THE STATE (2013) 1-2 SC (Pt. 1) 26, IKARIA V. THE STATE (2012) SC (Pt. VI) 1, AJAYI V. THE STATE (2013) 2-3 (Pt. 1) 143; and OSETOLA & ANOR V. THE STATE (2012) 6 SC (Pt. IV) 148. PER TIJJANI ABUBAKAR J.C.A.
JUSTICES:
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria
Between
OLUKAYODE ADEOYE – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of the High Court of Lagos State delivered by IPAYE J on the 7th day of March 2018 in charge No. ID/318C/2013. In the said Judgment, the learned Trial Judge found the Appellant guilty of conspiracy to steal and sentenced him to three years imprisonment.
Just by way of brief summary of facts giving rise to this appeal. The Economic and Financial Crimes Commission received a petition from a Company known as Lily Pond Container Depot Nigeria Limited alleging that one of its employees named Miss Oluwatoyin Egbeyemi, Finance Manager stole funds from the accounts of the Company to the tune of N100 Million between May and September 2011. That following the discovery of this massive fraud, the Company conducted internal investigations and discovered that its employee was at the Centre of the fraud. The Company alleged that Miss Egbeyemi used the names and accounts of five different Companies to perpetrate the fraud. The Company alleged that the Appellant herein and four other defendants were part of the scheme.
Upon the conclusion of investigation, the Commission charged five defendants to Court. Trial commenced and at the conclusion of trial, Appellant was sentenced to three years imprisonment, he became aggrieved and therefore brought an appeal to this Court by notice of appeal filed on the 27th day of April 2018 containing seven grounds of appeal.
The Respondent in this appeal failed to file brief of argument, this Court therefore made an order on the 4th day of October 2018 that the appeal be heard on the Appellants brief alone, the appeal was therefore heard on the Appellants brief alone on the 2nd day of December 2018. I must be quick to say that, the fact that the appeal is not contested by the Respondent by its failure to file Respondents brief does not serve as automatic ticket to success for the Appellant, obviously the Appellant will have a smooth sail at the hearing and that is all, the law requires this Court to still consider the appeal on its merit to determine the appeal, the fact that it is heard on the Appellants brief alone does not entitle the Appellant to judgment, the Appellant must satisfy the Court that his appeal is meritorious and therefore deserves to succeed, see JAMES IDIEGE OKO Vs. EDE AGANYI (2012) LPELR-19704 (CA), SALAU Vs. PARA-KOYI (2001) 13 NWLR (Pt. 731) 111 and JOHN HOLT VENTURES Vs. OPUTA (1996) 9 NWLR (Pt. 470) 111.
I will now go the brief of the Appellant to determine whether the appeal has merit or not. The Appellants brief of argument was filed on the 10th day of August 2018 by learned Counsel Ayodeji Awobiyide, learned Counsel for the Appellant, he identified four issues for determination and the issues are as follows:
I. Whether Learned Trial Judge rightly or wrongly (on facts of this case) held Appellant culpable for conspiracy to steal money belonging to Lily Pond Containers Limited (Grounds 1,2,4, and 7).
II. Whether Learned Trial Judge was right or wrong in refusing to avail the importation of requirement of reasonableness of mistake into Section 25 of the Criminal Law of Lagos State. (Ground 3).
III. Whether or not Learned Trial Judge breached Appellants right to fair hearing when she delivered the Judgment outside the mandatory 3 months from date of adoption of final addresses. (Ground 5).
IV. Whether Learned Trial Judge adopted the correct sentencing policy/approach when she sentenced Appellant to 3 years imprisonment because of the classification of conspiracy as a felony which attracts imprisonment of 3 or more years.
(Ground 6).
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUE ONE
Submitting on issue number One, learned Counsel for the Appellant submitted that it was wrong on the part of the lower Court to conclude that the Appellant and other defendants jointly agreed to conspire with Ms. Egbeyemi in order to steal the money belonging to Lily Pond Containers Limited. Learned Counsel said the decision of the lower Court is lacking in factual or legal basis. Counsel referred to the statement and particulars of offence and submitted that the prosecution failed to furnish details of common intention with Ms. Ekpeyemi to conspire in order to steal the money. Counsel said to prove conspiracy, the Prosecution must prove agreement and common intention between the Appellant and Ms. Ekpeyemi, and the evidence must be complete and unbroken showing that the accused person actually committed the offence, it must also be established that the conspirators directly communicated with each other or one person acts as a hub around whom the others revolve, or there is evidence that a particular person communicated with another who in turn communicated with another. Learned Counsel relied on the decisions in IGBIKIS Vs. STATE (2017) LPELR-41667 (SC), and OSUAGWU V. STATE (2013) 5 NWLR (Pt. 1347) 360 at 391-392.
Learned Counsel for the Appellant said the Appellant in the instant appeal never met any of the persons individually or collectively prior to the commission of the offence, he could not therefore have agreed or formed common intention with them. Learned Counsel argue that from the evidence at the trial each of the defendants acted independently and differently at different times with the said Ms. Egbeyemi, Appellant could not therefore have conspired with the said Ms. Egbeyemi to commit the offence.
Learned Counsel said Count One is devoid of essential particulars, the charge does not contain the amount stolen and the particulars of the owner of the amount stolen, it is therefore ambiguous and defective it cannot therefore provide a platform for conviction. Learned Counsel referred to page 1148 of the records of appeal where the Court held that the defendants acted in concert with common purpose of aiding Ms. Egbeyemi in her enterprise of stealing, the same Court also held at page 1140-1141 of the same record of appeal that none of the accused persons was in close proximity with the complainant, they were strangers who had no business relationship with the Company and were strangers to each other they were all discharged and acquitted of the offence of stealing.
Learned Counsel then submitted that having been discharged and acquitted of the offence of stealing, they ought to have been discharged and acquitted of the offence of conspiracy, since there was no proof of agreement between the Appellant and the other Defendants, there was no proof of agreement to act with common purpose. On proof of conspiracy learned Counsel said it must be established that there is consent of two or more persons, agreement, translation of intention to an overt act or omission, Counsel said there must be agreement between the conspirators and meeting of the mind to jointly commit an offence. In support of this submission, Counsel referred this Court to YAKUBU Vs. STATE (2012) NWLR (Pt. 1313) 131 at 142-143, WAZIRI Vs STATE (1997) 3 NWLR (Pt. 496) 689, BUSARI Vs. STATE (2015) LPELR-24279 (SC), ADELANI Vs. STATE (2012) LPELR-8664 (CA), UTUYORUME Vs. THE STATE (2010) LPELR-4710 (CA), ODUNEYE Vs. STATE (2001) 2 NWLR (Pt. 697) 311 at 332-333, and DAVID OMOTOLA & ORS Vs. THE STATE (2009) 7 NWLR (Pt. 11390 148 SC 192-193.
Learned Counsel for the Appellant said contrary to the erroneous conclusion reached by the learned trial Judge that the defendants acted with common purpose in aiding Ms. Egbeyemi, each of the defendants acted differently and independently and at different times under different circumstances and transactions, the defendants could not therefore have conspired in the instant case. Counsel said the lower Court was satisfied at pages 1140-1141 of the records of appeal that there was no evidence of togetherness between the Appellant and the other defendants and therefore held that there was no evidence of stealing. Counsel said it was however surprising that the same Court that found that there was no evidence of close proximity between the Appellant and the other accused persons still found him guilty of conspiring with others. Learned Counsel finally submitted on this point that there was no evidence of confederation, togetherness or meeting of the minds between the defendants. A case of conspiracy could not therefore have been made out against the Appellant.
Learned Counsel for the Appellant also contended that the evidence of the Appellant at the trial was not properly evaluated by the trial Court. Appellant testified that he was Ms. Egbeyemis colleague, they both worked in TSL, that when Ms. Egbeyemi left TSL, she joined Lily Pond Containers and sold some containers to the Appellants Company. The Appellant also said Ms. Egbeyemi requested to use the Account of his Company to receive some payments coming from her private business and that the Appellant agreed and allowed her to use the Corporate Account he operated with one Kunle Ajayi. Appellant also admitted that he borrowed the sum of N2.5 Million from Ms. Egbeyemi which he repaid.
Upon giving evidence the learned trial Judge did not conduct proper evaluation of the evidence put forward by the Appellant. Learned Counsel said the learned trial Judge ought to have made a finding if the Appellant and Ms. Egbeyemi were actually colleagues, if there were previous transactions between the Appellant and Ms. Egbeyemi in respect of containers sold to TSL, whether it was true Ms. Egbeyemi told the Appellant that she was in private container business and that her Customers actually insisted that payments be made through Corporate Bank Accounts, that Ms. Egbeyemi made statement to the Police exculpating the Appellant from the alleged crime. Learned Counsel said the learned trial Judge did not conduct any serious evaluation of the evidence to ensure that the innocent party is not punished or the guilty is set free, in support of this submission, Counsel relied on ONAH V. STATE (1985) 3 NWLR (Pt. 12) 236, and OLAGUNJU V. ADESOYE & ANOR (2009) 4-5 SC (Pt. III) 1.
Counsel for the Appellant referred to the evidence of PW3 to submit that the mens rea of the offence of conspiracy was not established by the prosecution. To the contrary, Counsel said the lower Court shifted the burden of proof from the prosecution to the Appellant to establish his innocence. Counsel for the Appellant contended that the Bank account was opened in December 2010, and the request to use the same account was made in April 2011, the account was not therefore opened for the sole purpose of perpetrating fraud. That Appellant took a loan of N2.8 Million for the perpetrator and master mind of the fraud Ms. Egbeyemi who is at large. Appellant said he repaid the loan, but the lower Court disbelieved him and held the view that it was a share of the fraud enjoyed by the Appellant. Learned Counsel relied on EBEINWE V. STATE (2011) 7 NWLR (Pt. 1246) 402 at 417-418, and ESANGBEDO V. STATE (1989) (Pt. 113) 57 at 69-70 to submit that the burden of proof in criminal trials must be discharged by the prosecution. The prosecution has a duty to prove the guilt of the accused person beyond reasonable doubt.
Learned Counsel for the Appellant also relied on UDENGWU V. UZUEGBU (2003) 13 NWLR (Pt. 836) 136 at 152, and UKPAH V. UDO (2002) 8 NWLR (Pt. 769) 329 at 342, to submit that where it is shown that the lower Court failed to properly evaluate the evidence or facts, or acted under a misapprehension of the facts or improperly relied on materials it ought not rely on, or the conclusion reached by the trial Court is patently perverse, the Court of Appeal is entitled to intervene to redress the misapprehension. Counsel further argued that is is not sufficient for the lower Court to hold that it does not believe the evidence of the Appellant, there must be proper evaluation to ground such disbelief. In support of this submission learned Counsel referred this Court to JUDICIAL SERVICE COMMITTEE V. OMO (1990) 6 NWLR (Pt. 157) 407 at 442, and IHEANACHO V. EJIOGU (1995) 4 NWLR (Pt. 389) 324 at 340. Learned Counsel urged that this issue be resolved in favor of the Appellant against the Respondent.
ISSUE TWO
Submitting on this issue, learned Counsel for the Appellant said the Appellant permitted the perpetrator of the fraud to use the Account of the 5th Defendant in good faith, under the mistaken belief that the said Ms. Egbeyemi was running a genuine business of buying and selling containers, and that she genuinely needed corporate account to receive payments from the business. Appellant according to Learned Counsel did not know that the Account would be used to steal money from Ms. Egbeyemis employer. Counsel submitted that defense of mistake negatives criminal intention which constitutes an essential ingredient of the offence charged.
Counsel referred to the statement made by the Appellant to the prosecuting Agency exhibit 11(a) – (c) tendered at the trial, and that it was after the co-signatory to the Account Kunle Ajayi consented to the use of the Account by Ms. Egbeyemi, that the Appellant permitted her. Counsel said even though it was very clear that Appellant acted under the mistaken belief that the Account was being used for container business, the lower Court did not allow him benefit from the defense of mistake which was readily available to him, but the learned trial Judge held that the defense of mistake put up by the Appellant was not honest and reasonable, therefore the Appellant ought be allowed to benefit from it by the lower Court. Counsel submitted that this conclusion by the learned trial Judge was based on the provisions of Section 25 of the Criminal Code of Lagos State which was repealed, he said the provision is no longer part of the Criminal Law of Lagos State 2011 under which the Appellant was charged and convicted. Learned Counsel said under the Criminal Code, reasonableness was a requirement in order to benefit from defense of mistake, but under the Criminal Law of Lagos, Section 25 of the 2011 Law provides for good faith. Counsel contended that the lower Court was in error when it held that the Appellant did not act reasonably by allowing Ms. Egbeyemi to use the Account, the law according to Counsel provides for good faith, and having acted in good faith the defense of mistake of fact ought to have been made available to him.
Counsel said it is one of the cardinal principles of interpretation that words in a statute must be given their natural and ordinary meaning. It was wrong to hold that the belief must be honest and reasonable, the law clearly stated that the Accused must believe the facts in good faith. Learned Counsel relied on the cases of DABIERIN & ANOR V. THE STATE (1968) 1 ALL NLR (Pt. 138) at 140., and NWAKIRE V. COP (1992) 5 NWLR (Pt. 241) 289 at 308-309. Learned Counsel urged this Court to hold that the lower Court was in error which it concluded that the Appellant failed to be reasonable in his belief. Counsel said the importation of the word reasonable defeated the true and correct meaning of the Section 25, the lower Court therefore fell into grave error. He urged this Court to resolve this issue in favor of the Appellant.
ISSUE THREE
Learned Counsel for the Appellant said the Appellant was denied fair hearing when the lower Court delivered Judgment after Ninety days from the date of conclusion of evidence contrary to the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel said trial was concluded on the 14th day of March 2017, and final written addresses were adopted on the 23rd June 2017, while Judgment was delivered on the 7th of March 2018 almost nine months after the adoption of addresses, he submitted that this was a violation of the provisions of Section 294 (1) of the Constitution. The delay in delivering the Judgment within the time provided by the Constitution impaired the ability of the learned trial Judge to properly evaluate the evidence adduced at the trial, and this fact led to the conviction of the Appellant. The delay led to miscarriage of justice where the learned trial Judge held that the Appellant was not guilty of stealing but was guilty of conspiracy to steal. Learned Counsel referred to AKOMA V. OSENWOKWU (2014) 11 NWLR (Pt. 1491) 462, and NAGEBU CO. (NIG) LTD V. UNITY BANK PLC (2014) 7 NWLR (Pt. 1405) 42 at 66-67 the delay per se in delivering the judgment does not lead to a judgment being vitiated, the delay must be shown to occasion miscarriage of justice.
Learned Counsel further submitted that the delay made it such that the lower Court did not believe that the Appellant took a loan and repaid but failed to provide basis for the decision. Counsel said the inordinate delay in delivering the judgment negatively impacted on the ability of the learned trial Judge to properly evaluate the evidence and therefore resulted in miscarriage of justice, he urged this Court to so hold.
Counsel said the lower Court called parties to on the 15th day of February 2018 to address it on an issue it raised suo motu, he said this cannot cure the failure to deliver the Judgment within the time provided by the Constitution having regard to the decisions in IDOWU & ORS V. SEGUN KOYA INVESTMENT LTD. (2017) LPELR-43580, and OLUSANYA V. UBA (2017) LPELR -42348. He therefore urged this Court to resolve this issue in favour of the Appellant against the Respondent.
ISSUE FOUR
Challenging the sentence imposed on the Appellant, learned Counsel said the correct sentencing principles were sidelined by the lower Court, that Appellant who had no records of previous conviction was sentenced to three years imprisonment because that in the opinion of the lower Court is the minimum sentence to be imposed for conspiracy to commit a felony. Learned Counsel said the criminal Law of Lagos State does not stipulate that three-year imprisonment is the minimum sentence to be imposed for conspiracy to commit a felony, that Section 409 of the Criminal Law of Lagos State 2011 does not provide that a felony shall attract a minimum sentence of three years, the section does not provide for the words at least or not less than three years in order to suggest that three years imprisonment is the minimum sentence. Learned Counsel for the Appellant said where such words do not appear, it means some measure of discretion is exercisable on the part of the Judge.
Learned Counsel for the Appellant said under Count 1 under which the Appellant was arraigned and sentenced was brought pursuant to Section 410 of the Criminal Law of Lagos State and the law provides that a person convicted is liable to be sentenced to 2 years imprisonment. Counsel said the trial Court did not take into account the provisions of the law on sentencing. Learned Counsel relied on following cases in support of his submissions, ISANG V. STATE (1996) 9 NWLR (Pt. 473) 458 at 471, EKPO V. STATE (1982) 13 NSCC 146 at 154, ADEYEYE V. STATE (1968) 1 All NLR 239 at 241. MAIZAKO & ANOR V. SUPERINTENDENT GENERAL OF POLICE (1960) WRNLR 188 at 189.
Learned Counsel urged this Court to resolve this issue in favor of the Appellant and allow the appeal.
I stated earlier in this Judgment that the Respondent failed to file the Respondents brief of argument, the appeal was therefore heard on the Appellants brief alone. Since there is no Respondents brief, I will proceed to determine the appeal on the Appellants brief alone.
RESOLUTION
In this appeal, the Appellant through learned Counsel nominated four issues for determination, the main issue being whether the decision by the learned trial Judge to find the Appellant guilty of conspiracy was proper. The other issues touch on whether the defense of mistake was available to the Appellant, breach of fair hearing and failure to follow the law by the learned trial Judge in sentencing the Appellant. Issues One, Two and Three may be conveniently compressed and collapsed into the sole issue central to the determination of this appeal, which I earlier on identified. Determination of Issue four on the propriety or otherwise of the sentence may be necessary where the determination of the sole issue is resolved in the negative. I am sure the issue central to the determination of the appeal is whether Appellants conviction for conspiracy was proper or not. I will deal with it first.
Before I go to the facts and circumstances surrounding the conviction and sentence of the Appellant to 3 years by the lower Court for conspiracy, let me set out the requirements of the law with respect to what constitutes conspiracy and the ingredients to be established by the prosecution in proof of the offence of conspiracy.
Conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means, in the old case of NJOVENS V. STATE (1973) 5 SC 12. The Supreme Court held as follows:
The overt act or omission which evidenced conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Caesar, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See: R V. Meyrick & Ribuff (1929) 21 C.A.R. 94. They need not all have started the conspiracy at the same time for the conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose common between them and in proof of conspiracy the acts or omissions (and the commissions) of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators. It is therefore, the duty of the Court in every case of conspiracy to ascertain as best as it could the evidence of the complexity of any of those charged with that offence. See also: ALH MOHAMMED SANI ABACHA & ORS V. THE STATE 11 NSCQR 345 at 457-458 and 468-469, and JOSEPH OKOSUN & ORS V. ATTORNEY GENERAL BENDEL STATE (1985) 11 S.C 194.
The offence of conspiracy becomes established where the following ingredients are established by the prosecution:
I. There must be an agreement of two or more persons, in other words there must be meeting of two or more minds.
II. The persons must plan to carry out an unlawful act or illegal act which is an offence.
III. Bare agreement to commit an offence is sufficient.
IV. An agreement to commit a civil wrong does not give rise to the offence, the law only provides for criminal conspiracy.
V. One person cannot commit the offence of conspiracy because he cannot be convicted as a conspirator.
VI. Conspiracy is complete if there are acts on the part of the accused which lead the trial Court to the conclusion that he and others were engaged in accomplishing a common object or objective.
See: KAZA V. THE STATE (2008) 1-2 SC, 151, OSUAGWU V. THE STATE (2013) 1-2 SC (Pt. 1) 26, IKARIA V. THE STATE (2012) SC (Pt. VI) 1, AJAYI V. THE STATE (2013) 2-3 (Pt. 1) 143; and OSETOLA & ANOR V. THE STATE (2012) 6 SC (Pt. IV) 148.
The major contention of the Appellant in this appeal is that, the lower Court found as a fact that none of the accused persons was in close proximity with the complainant, and held that they were strangers who had no business relationship with the Company and were strangers to each other. They were all discharged and acquitted of the offence of stealing, but found guilty of conspiracy. Learned Counsel contended that they ought to have been discharged of the allegations of conspiracy, since it appeared obvious that common intention was not established to ground their conviction of the offence of stealing in counts 2-9. Learned Counsel referred to page 1140-1141 of the records of appeal in support of this submission.
The Learned Trial Judge while delivering Judgment at pages 1140-1141 of the records of appeal held as follows:…Nevertheless a crucial element of the offence of stealing is that the accused person must have the intention to permanently deprive the owner of the use of the thing stolen. In other words, the accused persons must have the requisite mens rea or guilty mind. This must be proved by the prosecution beyond reasonable doubt. Mens rea is the mental element, it goes hand in hand with the actus reus. An accused person is only held liable for what he has chosen to bring about. In the instant case the prosecution has not established any nexus, link or connection between the accused persons before me and the close proximity to the complainant, they had no business relationship in fact they were strangers to each other.
They were not involved in the manipulation of the company accounts or manipulation of the company soft-wire and I so hold. See: OYEBANJI V. STATE (2015) LPELR-24751 (SC) and MANNIR LIMAN V. THE STATE (2016) LPELR-40260 (CA). As I have concluded previously the thief is Miss Egbeyemi Irene now at large. She was the inside person who perpetrated the theft and I so hold. I must therefore come to the summation that the offence of stealing has not been proved beyond reasonable doubt against the accused persons herein. Accordingly, I must resolve Issue No. 1 against the prosecution and hold that the prosecution has failed to prove Counts 2-9 and 25-28 to wit stealing against the 1st, 2nd, 3rd, 4th, 5th, and 6th defendants. They are hereby discharged and acquitted on the said counts.
Learned Counsel for the Appellant insisted that the Appellant having been discharged of the principal offence of stealing ought to be discharged of the allegations of conspiracy given the circumstances of the case. Counsel however submitted if this Court holds the view that Appellants discharge and acquittal of the offence of stealing does not entitle him to automatic discharge and acquittal of the offence of conspiracy, the prosecution failed to prove agreement by two or more persons in the instant case to do an illegal act to establish conspiracy.
Just by way of quick interjection to address the submissions of Counsel on this point before I proceed. Conviction for conspiracy does not become inappropriate because the substantive offence has not been proved. Conspiracy is a separate and distinct offence therefore independent of the offence to which the conspiracy is related, see: BALOGUN V. A.G. OGUN STATE (2002)2 SC (Pt. II)89 at 96. I must be quick to add that acquittal on substantive offence could make it unreasonable to convict on the other count of conspiracy, but this would largely depend on the facts of each particular case, but generally an accused person acquitted of committing substantive offence cannot be convicted for the main offence. See: T.A ABIOYE & ORS V. STATE (1986) 4 C.A.
Learned Counsel for the Appellant raised issues alleging failure by the Learned Trial Judge to properly evaluate the evidence before the Court. It is true, the account subject of this appeal was opened in December 2010, as revealed by the evidence of PW6 at page 1096 of the records and the request to use the account by Ms. Egbeyemi was made in April 2011. Counsel said the account was not solely opened to perpetrate the fraud.
The Appellant testified at pages 1106 of the records of appeal, he stated that he was contacted by Ms. Egbeyemi for permission to use their company account, he directed her to discuss and obtain the consent of his co-director, she did so, and he got confirmation from his co-Director Kunle Ajayi that she was free to use the account to receive her payments, he said as follows:……. Sometimes in April 2011, Yomi Egbeyemi called me to find out if we need more containers and I said No. We had no haulage contract on going. She asked me about my Company. I told her that our first project failed. After I told her this, she requested that I allow her use the account of 5th Defendant for her container sales business. I asked her why. She said that she was being inundated with request to supply containers and that her customers will only pay into a corporate account.
I declined her request for the following reasons:
1. That I was not the only Director of 5th Defendant.
2. And I was not the only signatory to the account
3. I advised her to register her company and open an account.
She said it would take 6-8 months and her customers will move to her competitors. This conversation took place on April 2011. In May 2011 she called me again to plead. I directed her to call Kunle Ajayi the other Director. She agreed to do so and she hang up. She called me to say Kunle Ajayi had consented to the use of our Company’s account. I verified from Kunle Ajayi and he confirmed having given his consent because of past relationship with her. (By this time I was not on good terms with Kunle Ajayi because I held him responsible for our Agriculture project failure). Kunle Ajayi was the only one who got debit and credit alerts on the whale and Chase account vide short service message service (sms). Yomi Egbeyemi called me about a week later that one of her customers had paid in whale and Chase account. I immediately contacted Kunle Ajayi. He issued a cheque open and sent it to me and I signed it………
The lower Court rejected the evidence of the Appellant and did not proffer reason for rejecting the evidence, the rejection leaves room for me to think whether the decision was really right or wrong, the evidence could be right. In any event, the rejection elicited doubt as to whether the Appellant actually set out to commit the offence or acted in good faith, believing that the postulation of Ms. Egbeyemi was honest. The learned trial Judge said as follows at page 1147 of the records:……….I have equally listened to the rather long and rumbling testimony of DW2. This is a young man, a graduate who studied engineering abroad. Miss Egbeyemi was his friend. He was approached by the latter, who gives him a limp, incredulous story about her new business and pronto, he facilitates and avails her the use of his Company account, whales and Chase the 5th defendant herein (which he had originally set up to go into the agro allied business) domiciled in FBN Plc. I have listened to the testimony of PW6, a banking officer which establishes clearly that a little over N16 Million was laundered or passed through this account) Exhibit 18c and withdrawn by Miss Egbeyemi (at large) the master mind of the fraud. DW2 raised no eyebrows until his arrest.
With all due respect to the learned trial Judge, the Appellant did not from his testimony agree at once to let the master-mind use the account, he directed her to speak to his Co-Director Kunle Ajayi, the agreement to let her use the account did not happen pronto immediately or straight-away or quickly, Appellant from my understanding of his evidence took time to ponder over the request, he directed the master-mind to contact his co-director, he did not certainly act as if he was rushing to perfect the scheme, even under cross examination at page 1108 of the records he was consistent, and did not falter, he maintained his story. Under cross examination, he even went further to state that …All the funds deposited into the 5th defendants account was withdrawn by her. It was only the first withdrawal that I had to confirm, subsequent withdrawals were confirmed by Kunle Ajayi….
I entirely agree with the learned Counsel for the Appellant that the learned trial Judge did not give reasons for rejecting the evidence of the Appellant, in fact from the language of the learned trial Judge, it appeared as if the Appellant hurriedly granted permission to Ms. Egbeyemi to use the account to perpetrate the alleged fraud. This is obviously not so. A Court of law has obligation to always proffer reasons for its decision. Decision of a Court must not be arbitrary, it must be concreted on solid pedestal, the decision must be able to convey sound reasoning and conclusion. See AGHAEBUNAM ILOABACHIE & ORS V. ANOSIKE ILOABACHIE (2005) LPELR-11555 (CA). From the evidence before the Court, I am of the view that Appellant acted in good faith, and the Prosecution failed to advance concrete, cogent and convincing evidence of his participation in the alleged criminal conspiracy. The prosecution therefore failed to establish the guilt of the Appellant beyond reasonable doubt.
From all I said therefore, I am bound to hold that the decision of the lower Court convicting and sentencing the Appellant to three years imprisonment is perverse, following failure by the lower Court to properly evaluate the evidence before it. The issue central to the determination of this appeal is therefore resolved in favour of the Appellant against the Respondent.
Having held the view that the conviction and sentence of the Appellant to three years is improper, I am of the view that Appellants issue number four challenging the propriety of sentence of the Appellant to three years has become spent, its determination is therefore academic. I have chosen to abstain from delving into it, knowing so well that Courts do not invest precious time in resolving academic questions.
On the whole therefore, Appellants appeal is meritorious and therefore allowed by me. The Judgment of the lower Court delivered by IPAYE J, on the 7th day of March 2018 in charge No. ID/318C/2013 is hereby set aside.
Appellant is discharged and acquitted.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: My learned brother, TIJJANI ABUBAKAR, JCA had afforded me in advance the opportunity of reading the judgment just delivered by him.
I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal succeeds and I abide by all consequential orders in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the lead judgment just delivered by my learned brother TIJJANI ABUBAKAR J.C.A. I agree with the judgment and adapt it as mine with nothing useful to add.
Appearances:
Ayodeji Awobiyide For Appellant(s)
Respondent absent For Respondent(s)
