TEJUMOLA v. FRN
(2020)LCN/15593(CA)
In The Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, February 27, 2020
CA/L/965C/2018
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
OKEMAKINDE ADEBIMPE TEJUMOLA APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO:
Duty of court in pronouncing on issues properly placed before them
Indeed, I agree with the Appellant’s counsel that the learned trial judge erred when she failed to pronounce on the present issue which was duly raised and argued in the Appellant’s final written address before the lower court, as contained in pages 967 to 972 of Volume 2 of the record of appeal. The law is well settled that it is the duty of every Court to pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounce upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. See OKOTIE – EBOH v MANAGER & ORS (2004) LPELR – 2502 (SC); TITILOYE & ORS v OLUPO & ORS (1991) LPELR – 3250 (SC); ADEGBUYI v APC & ORS (2014) LPELR – 24214 (SC); BRAWAL SHIPPING (NIG) LTD v F.O ONWADIKE CO. LTD & ANOR (2000) LPELR – 802 (SC). Par Abimbola Osarugue Obaseki-Adejumo, J.C.A.
When to raise an objection to a formal defect on the face of a charge.
The law as I know it and quite rightly so, is that any objection to the formal defect on the face of a charge shall be taken immediately after the charge has been read to the accused and not later. See the case of FRN v ADEWUNMI (2007) LPELR – 1273 (SC), where the Supreme Court, while considering the peculiar provision of Section 167 of the Criminal Procedure Act, Cap. 80, Laws of the Federation, 1990 held that;
“It is the duty of counsel in particular and of an accused person in defending himself personally, to promptly take any objection to every perceived Irregularity to the charge….”
See also the old case of ADIO v STATE (1986) LPELR – 184 (SC). This position accords with the provision of Section 159(c) of the Administration of Criminal Justice Law of Lagos State, 2015 which provides thus:
“No judgment shall be stayed or reserved (sic) on the ground of any objection which if stated after the Charge was read over to the defendant during the progress of the trial might have been amended by the Court because of:
(c) any alleged defect in substance or in form in any charge, complaint, warrant or other process relating to the Charge and the evidence adduced in respect of the Charge.”
It is evident that even if there is merit in the objection to the formal validity of the charge raised by the Appellant, particularly as it borders on the proper name of the entity charged as 6th Defendant, the judgment of the lower Court cannot be reversed or set aside on that ground. This is because if the objection had been timeously raised, the charge might have been amended to reflect the correct entity sought to be charged. Having waited till the time of Final Written Address to raise the said issue, the said complaint cannot be said to be well conceived. Par Abimbola Osarugue Obaseki-Adejumo, J.C.A.
When a mistake of fact will be admissible as a defense to avail an accused person.
Let me briefly say that the defense of mistake as contained in Section 25(1) of the Criminal Law of Lagos State cannot avail the Appellant in this case. The section states:
“A person who by reason of a mistaken belief in a set of facts held in good faith does or omits to do an act, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as believed existed.”
As the learned trial judge rightly held at page 1149 of the record of appeal, the mistake of fact as defense will only avail the accused person where the mistake is honest and reasonable. The Supreme Court in the case of AIGUOKHIAN v THE STATE (2004) LPELR – 269 SC fortified this position when per PATS-ACHOLONU, JSC held that;
“the test of honest belief which should shore up a defense of mistake rests apriori on whether the accused honestly and in good faith and without any fault or negligence, made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake.”
Clearly, the trial Court cannot give an accused person the benefit of a defense which is not supported or reflected by the evidence on record. See OGBOKA v STATE (2016) LPELR – 41177 (CA); EKPENYONG v STATE (1993) 5 NWLR (PT. 295) 513; ASANYA v STATE (1991) NWLR (PT. 180) 422; SHALLA v STATE [2004) 8 NWLR (PT. 875) 396. For the avoidance of doubt, the reasonableness of the Appellant’s belief will only go to the issue as to whether the belief was genuinely held and the relevant question to be asked is whether the state of mind of the Appellant at the time of the act complained of was honest and reasonable. See OGIDI v STATE (2005) 5 NWLR (PT 918) 286. The facts on record in my considered view do not support the Appellant’s stance that she acted under any mistaken belief. In this case, the Appellant testified in chief during the proceedings of 14th March, 2017, as follows:
“Yes in 2011, Yomi Egbeyemi my friend approached me that she is into container sales business and as a staff of Lily Pond Containers, she could not deal directly with the company. She asked me if I had a ready to start company and corporate account in the name of my company. I answered yes to her for the first question and No to the second question. She asked me to open a corporate account for my company, the 6th defendant I did so, because I thought I would need it in the nearest future. I opened a corporate account to trade, she paid in some cheques into the account and whenever she needs withdrawals, I will issue signed blank cheques to her. Sometimes, she comes to get cash. She continually makes withdrawals exhausted all the money she paid into the account….”
I find it curious that the Appellant will seek to rely on the defence of mistake in this case, considering the weighty evidence elicited from her, showing that her belief was not only unreasonable and also that she acted at best negligently in this case. I am surprised that the Appellant will even say she acted under a mistaken belief when from her own testimony she was aware that the purpose for which she was approached by Miss Egbeyemi was to circumvent a lawful order or process. Appellant pointedly stated that Miss Egbeyemi told her to open the corporate account so that proceeds from the unlawful act can be paid to the said corporate account from Lily Pond Containers, whom she Miss Egbeyemi could not directly deal with. If the Appellant had held the said mistaken belief reasonably, she would have been cautious to act in supplying the corporate account to Miss Egbeyemi, she no doubt acted negligently when she failed to probe further and investigate the alleged business purportedly engaged in by Miss Egbeyemi. The case would have been different if the Appellant had been approached by Miss Egbeyemi to solicit for contract from Messrs Lily Pond containers and was therefore paid for the said contract. The action of the Appellant in this case cannot support the stance that she acted under any mistaken belief. In this respect, I resolve this issue against the Appellant. Par Abimbola Osarugue Obaseki-Adejumo, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice O. Atinuke Ipaye of the High Court of Lagos State, Lagos Judicial Division delivered on the 7th March, 2018.
A brief summary of the facts of this appeal are; the Appellant with other Defendants were arraigned on a 34 – counts information filed before the lower Court on the 17th August, 2013. The offences for which the Appellant was tried bothered on conspiracy, stealing, forgery, uttering and using forged documents, all contrary to relevant provisions of the Criminal Law of Lagos State, 2011. However, the Appellant was convicted on Count 1 only.
The Appellant being dissatisfied with the decision filed a Notice of Appeal dated 20th April, 2018. The Appellant’s brief of argument is filed on 28th November, 2018 and settled by Abiodun A. Olatunji, Esq., Opeyemi Ogunleye, Esq., Nasir Olalekan Lasaki, Esq. of Abdullahi Ibrahim & Co, wherein three issues were formulated for determination by this Court thus:
1. Whether the charge, particularly the specific counts filed against the Appellant and the Evidence led by the Respondent are not lacking in merit.
2. Whether the lower Court was not wrong when it sentenced the Appellant on three years’ imprisonment without an option of fine rather than a minimum sentence.
3. Whether the lower Court ought not to have struck out the name of the Appellant and Tejumola Onike Enterprises Limited (6th Defendant) upon the application of the Appellant on the ground of non-legal personality doctrine and wrong name of Appellant.
While the Respondent’s brief is filed 7th May, 2019, same is settled by Kayode Oni, Esq., Fadeke Giwa (Mrs.), T. J. Banjo, Esq. from the Economic and Financial Crimes Commission (EFCC).
Counsel identified a sole issue thus:
Whether the Honourable lower Court did not rightly convicted the Appellant for offence of conspiracy having regard to the fact that prosecution has proved its case beyond reasonable doubt against the appellant inclusive of other 2 Defendants before the lower Court.
APPELLANT’S SUBMISSION
The Appellant asked for permission to argue issue 3 first, and submits that the Respondent joined as 6th Defendant and referred to it as TEJUMOLA ONIKE ENTERPRISE LIMITED, whereas the actual defendant to be charged is the TEJUMOLA ONIKE ENTERPRISES.
It is the Appellant’s submission that there is a manifest difference between the two names. The 6th Defendant; TEJUMOLA ONIKE ENTERPRISE LIMITED charged by the Respondent connotes that the company is a Limited Liability Company, the other name which is the proper name; TEJUMOLA ONIKE ENTERPRISES connotes the registration of a business name.
The Appellant further submits that the lower Court erred in law and acted without jurisdiction when it discountenanced the charge against the Appellant and her business (6th Defendant), when from Exhibits 8a – g and Exhibits 9a – m, it is manifestly clear that the 6th Defendant is a business name and not a Limited Liability Company as stated by the Respondent in the charge and the name of the proprietor as gleaned from the Corporate Affairs Commission’s letter is ADEYEMI ADEBIMPE TEJUMOLA which is different from the name on the charge sheet or information filed before the Court which is OKEMAKINDE ADEBIMPE TEJUMOLA, Exhibits 14 and 13 also makes this difference clear. Counsel relied on UBA PLC v MOHAMMED & ANOR (2011) LPELR – 5063 CA; ESENOWO v UKPONG (1999) 6 NWLR (PT. 608) 611; ATOLAGBE v AWUNI (1997) 9 NWLR (PT. 552) 536 at 608; INAKOJU v ADELEKE (2007) 4 NWLR (PT. 1025) 423; FAWEHINMI v NIGERIA BAR ASSOCIATION (NO. 2) 1989 2 NWLR PAGE 558 AT PAGE 595; ADMIN/EXEC.ESTATE, ABACHA v EKE – SPIFF (2009) 7 NWLR PT. 1139 97 SC and urge the Court to dismiss this charge against the Appellant.
The Appellant opines that with regards to the Appellant and the offences related in the charge, twelve (12) counts out of the thirty – four (34) counts relates to the Appellant. Counts 25, 26, 27 and 28 in particular had to do with stealing and these four counts relates to the Appellant in the statement of offences whereas in the particulars of offence, the details supplied do not relate to Tejumola Onike Enterprises. Counsel relied on the case of UZOUKWU v EZEANU II (1991) 6 NWLR (PT. 200) 783 – 784 in submitting that the Respondent should have exercised all the time she had in the world to draft the charge and added names of suspect correctly.
On issue 2, the Appellant contends that for the Respondent to sustain Count 1, the Respondent must give prima facie evidence. Counsel cited in aid OBIAKOR v STATE (2002) 10 NWLR (PT. 776) PG. 612 AT 628; TANKO v STATE (2008) 16 NWLR (PT. 114) PG. 591 AT 638.
Appellant further contends that the evidence adduced by all Respondent’s witnesses fell short of all requisite ingredients of the offence of conspiracy and the lower Court erred when it relied upon the weak evidence to convict the Appellant. He went on to submit that the Respondent did not prove the mens rea of the offence against the Appellant and the Respondent’s case is based on mere suspicion and speculation.
ONAH v STATE (1998) 1 ACLR 642 AT 652 PARA 30; Section 25 (1) of the Criminal Law of Lagos State; IBEH v STATE (1997) 1 NWLR (Pt. 484) 632; OKOYE v EJIOFOR (1934) 3 WACA 130; KUMA v KUMA (1936) 5 WACA 4; ODOFIN v AYOOLA (1984) 11 SC 72; CHIME v CHIME (2001) 3 NWLR (PT. 701); ADEYE v ADESANYA (2001) 6 NWLR (PT. 708) PG. 1 were cited to submit that the Respondent has not been able to prove an essential element of the crime of conspiracy against the Appellant.
On issue 3, the Appellant contends that the lower Court erroneously relied on Section 285 (1) (a) of the Criminal Code Law in sentencing the Appellant which is a provision for stealing, whereas the Appellant was arraigned for conspiracy to commit felony, contrary to Section 410 of the Criminal Code Law Cap. 47 Laws of Lagos State, 2011.
It is the Appellant further contention that the lower Court granted an excessive sentence and failed to apply the right principles and law and therefore erred in the principle of law, and the Court should interfere and alter it. Counsel relied on DAVID v C. P PLATEAU STATE COMMAND (2018) LPELR – 44911 SC; ADEYEYE v THE STATE (1968) 1 ALL NLR 239 AT 241; ALAKE v STATE (1991) 7 NWLR (PT. 205) 567; AGBANYI v STATE (1995) 1 NWLR (PT. 369) 1; ADELEYE v FRN (2016) ALL FWLR (PT. 856) 312 AT 363 AND 364; TANKO v STATE (2009) ALL FWLR (PT. 456) 1977; (2009); ATOLAGBE v AWUNI (1991) LPELR-593 PG.593; NNPC v FAMFA OIL LTD & ANOR (2009) LPELR – 2023 (SC).
The Appellant urges the Court to allow this appeal for being meritorious and upturn the decision of the lower Court, discharge and acquit the Appellant.
RESPONDENT’S SUBMISSION
The Respondent submitting on issue 1 on the definition of conspiracy relied on SHODIYA v STATE (1992) 3 NWLR (PT. 230) 457 at 499; IKEMSON v STATE (1989) 3 NWLR (PT. 110) 55; HARUNA v STATE (2018) 11 NWLR (PT. 1631) 599 and further submits that the trial Court rightly drew necessary inference of agreement between the Appellant and two other from the evidence before it to find the prosecution has proved the offence of conspiracy against the Appellant and others. He relied on ODUNEYE v STATE (2001) 2 NWLR (PT. 697) 311; NJOVENS v STATE (1973) 5 SC 17; DABOH v STATE (1977) (SIC) 5 SC 122 ALL NLR 146 PP 587 PARAS. E – F 588 PARAS H – B.
The Respondent opines that the lower Court juxtaposed the conditions listed in UDE v STATE (2016) 14 NWLR (PT. 1531) 122 for proving the offence of conspiracy against the evidence led by the prosecution and rightly convicted the Appellant for the offence of conspiracy. OFOR v QUEEN (1955) 215 WACA 4; ALARAPE v STATE (2001) 5 NWLR (PT. 705) 79; AKINWUNMI v STATE (1987) 1 NWLR (PT. 52) 608; STATE v OLADIMEJI (2003) 14 NWLR (PT. 839) 138 AT 161 PARAS C – H.
The Respondent reacting to the Appellant’s issue 1, submits that after the Appellant did not raise an objection to the rending of the information, she pleaded not guilty and no application was filed raising objection to the charge. Appellant went on to submit that the Appellant feebly raised the issue of improper parties at the final address stage which was already belated, Counsel cited OKPA v STATE (2017) 15 NWLR (PT. 1587) I S.C AT 8 and Section 260 (2) Administration of Criminal Justice Law 2011, Laws of Lagos State in aid.
The Respondent contends that the Appellant tried to create an artificial dichotomy between her and her company, and such arguments have no basis in law because the Appellant and her companies are the same. ROWAYE v FRN (2018) 18 NWLR (PT. 1650) 21 and OYEBANJI v STATE 14 NWLR (PT. 1479) 270 PARAS. F – D.
In response to the Appellant’s issue 3, the Respondent submits that the allusion by the Appellant’s counsel that allocations(sic) should be employed by the lower Court is not grounded in law in that the Court has the option of either to consider the allocations(sic) or may decide not to reckon with the said allocations(sic). YUSUF v FRN (2018) 8 NWLR (PT. 1622) 502 at 509 was cited in aid.
In conclusion, the Respondent urge the Court to dismiss the appeal and affirm the judgment of the lower Court; convicting the Appellant for conspiracy.
RESOLUTION
The first port of call in this appeal is the resolution of the first issue raised by the Appellant to the effect that the lower Court ought to have struck out the name of the Appellant and Tejumola Onike Enterprises (6th Defendant) on the ground of non-legal personality doctrine and wrong name of the Appellant.
Indeed, I agree with the Appellant’s counsel that the learned trial judge erred when she failed to pronounce on the present issue which was duly raised and argued in the Appellant’s final written address before the lower court, as contained in pages 967 to 972 of Volume 2 of the record of appeal. The law is well settled that it is the duty of every Court to pronounce on all issues properly placed before them for determination in order, apart from the issue of fair hearing not to risk the possibility that the only issue or issues not pronounce upon are crucial, failure to pronounce on them will certainly lead to a miscarriage of justice. See OKOTIE – EBOH v MANAGER & ORS (2004) LPELR – 2502 (SC); TITILOYE & ORS v OLUPO & ORS (1991) LPELR – 3250 (SC); ADEGBUYI v APC & ORS (2014) LPELR – 24214 (SC); BRAWAL SHIPPING (NIG) LTD v F.O ONWADIKE CO. LTD & ANOR (2000) LPELR – 802 (SC).
Looking at the entire judgment of the lower Court spanning from pages 1124 to 1153 of the record of appeal, no one can be left in doubt that the learned trial judge did not consider and/or pronounce on the extant issue properly placed before the Court. As a matter of fact, in the said judgment, the learned trial judge erroneously stated at page 1126 of the record of appeal that the counsel for the Appellant and the 6th Defendant distilled two issues in his Final Written Address whereas at page 967 of the record of appeal, it is pointedly clear that counsel had formulated three issues on behalf of the Appellant and 6th Defendant including the first issue which was omitted by the learned trial judge.
Be that as it may, I shall proceed to consider the merit of the submissions made by counsel in respect of the said issue. Without mincing word, the Appellant’s complaint herein undoubtedly borders on the validity of the criminal information filed by the Respondent at the lower Court. As the Appellant’s counsel had impliedly conceded in the Appellant’s Brief of argument, this complaint/objection was raised for the first time in the Appellant’s written address. See page 8, paragraph 4.4 of the Appellant’s brief of argument.
The law as I know it and quite rightly so, is that any objection to the formal defect on the face of a charge shall be taken immediately after the charge has been read to the accused and not later. See the case of FRN v ADEWUNMI (2007) LPELR – 1273 (SC), where the Supreme Court, while considering the peculiar provision of Section 167 of the Criminal Procedure Act, Cap. 80, Laws of the Federation, 1990 held that;
“It is the duty of counsel in particular and of an accused person in defending himself personally, to promptly take any objection to every perceived Irregularity to the charge….”
See also the old case of ADIO v STATE (1986) LPELR – 184 (SC). This position accords with the provision of Section 159(c) of the Administration of Criminal Justice Law of Lagos State, 2015 which provides thus:
“No judgment shall be stayed or reserved (sic) on the ground of any objection which if stated after the Charge was read over to the defendant during the progress of the trial might have been amended by the Court because of:
(c) any alleged defect in substance or in form in any charge, complaint, warrant or other process relating to the Charge and the evidence adduced in respect of the Charge.”
It is evident that even if there is merit in the objection to the formal validity of the charge raised by the Appellant, particularly as it borders on the proper name of the entity charged as 6th Defendant, the judgment of the lower Court cannot be reversed or set aside on that ground. This is because if the objection had been timeously raised, the charge might have been amended to reflect the correct entity sought to be charged. Having waited till the time of Final Written Address to raise the said issue, the said complaint cannot be said to be well conceived.
In any event, I am not persuaded by the arguments canvassed by counsel on behalf of the Appellant that the names of the Appellant and the 6th Defendant – Tejumola Onike Enterprises Limited (the “Company”), ought to be struck out of the charge. First, it does not lie in the mouth of the Appellant who has denied any connection with the said Company, to challenge the charge properly brought against the Company. Only the company can challenge and complain that it was improperly charged.
Secondly, even if it is found that the Company was improperly charged as a defendant at the lower Court as the evidence before the Court is in relation to Tejumola Onike Enterprises, a business name (the “Enterprise”), the striking out of the Company’s name has no material significance on the status of the Appellant as defendant in the proceedings at the lower Court. As a matter of fact, if the Appellant’s complaint is countenanced, the only conclusion that may be reached is the striking out of the Company’s name, being the 6th Defendant from the charge and nothing more. The Respondent can conveniently proceed with its case against the Appellant in the circumstance.
Thirdly, the complaint of the Appellant that her name, being Okemakinde Adebimpe Tejumola is different from one – “Adeyemi Adebimpe Tejumola” listed as the proprietor of the Enterprise is bereft of substance. There is nothing on record to show or create an inference and/or suggestion that the Appellant is not one and the same person with Adeyemi Adebimpe Tejumola. At page 1109 of the record of appeal, the Appellant pointedly stated during her examination in chief that she is the proprietor of the Enterprise. Therefore, she cannot be heard to complain on this issue.
Fourth, there is abundant evidence on record, including the evidence elicited from the Appellant herself to the effect that she “registered a company in December, 2009 with Corporate Affairs Commissions and the company is the 6th Defendant on record, “known as Tejumola Onike Enterprises Ltd… a registered business name” and on whose behalf she opened a corporate account which the proceeds of the money fraudulently stolen by the principal offender, one Yomi Egbeyemi. See page 1109 of the record of Appeal.
Without seeking guidance from anywhere else, I have no hesitation in reaching the conclusion that the Appellant’s complaint in relation to the first issue holds no water. It is hereby resolved against the Appellant.
With regards to the second issue, it is the Appellant’s complaint that the lower Court erred when it relied upon the weak evidence presented by the Respondent to convict her. In reaching the conclusion that the Appellant is guilty of the offence of conspiracy as constituted in Count 1 of the Information, the learned trial judge held at pages 1145-
“I have carefully reviewed the evidence placed before me. I have no doubt that the mastermind and the central cog in the criminal enterprise of stealing money belonging to Lilypond Containers, is Miss Egbeyemi Oluwayomi Irene (at large). The evidence established by PW1 and PW2 is that Lilypond Containers do not make refunds to individuals or agents but to her customers with corporate accounts. Miss Egbevemi therefore needed corporate accounts into which to siphon the stolen funds. Evidence led by the PW3 and PW5 is that Miss Egbeyemi maintains current accounts in GTB Plc (Exhibit 17) and UBA Plc. She was not a signatory to any corporate account. DW1, DW3 and DW4 have each admitted in open Court and on their cautioned statements to serious investigators that Miss Egbeyemi approached them for use of their corporate accounts. That they each elected to assist her. In fact DW4 purposely and at the request of Miss Egbeyemi opened the corporate account of 6th Defendant of which she is the sole signatory, as shown on Exhibits 14(b) and 15, sometime in September 2011, with the intention that it would be used and operated by Miss Egbeyemi and I so hold…
I have equally listened to the admissions of DW3 and DW4 that they availed Miss Oluwayomi Egbeyemi with pre-signed blank cheques in order to “assist” her to withdraw the monies paid into their corporate accounts…. In effect, the 1st, 2nd and 3rd defendants enabled and facilitated Miss Oluwayomi Egbeyemi in her criminal enterprise of stealing company funds, she was able to spirit away the stolen funds which in criminal parlance is known as laundering or embezzlement…
DW4 is another friend of Miss Egbeyemi (now at large). I have listened with dismay as she testified to the fact that Miss Egbeyemi is her childhood friend and well known to her family and vice versa. Her friend approached her for use of a corporate account and she was in a hurry to do everything for a friend, she asked no questions. In fact, it is evident that DW4 at the instigation of her friend, hurriedly opened a corporate account sometime on 13th September 2011, just to make available the account for her friend Oluwayomi Egbeyemi (still at large) as an engine of fraud. Through the account of the 6th Defendant Tejumola Onike Enterprises domiciled in Stanbic-Ibtc Plc (Exhibit 15) of which the 3rd defendant is the sole signatory, a sum, a little over 12 million was paid through and withdrawn by the mastermind. The testimony of PW4 in this regard has not been debunked…
The actions of the 1st, 2nd and 3rd defendants no doubt facilitated and enabled the commission and perfection of the offence of stealing as alleged. They conspired together, acted with common purpose of aiding and assisting Miss. Egbeyemi (at large) in her enterprise of stealing and I so hold….”
The learned trial judge from the above extract made definite findings and reached an even more concise conclusion that the Appellant conspired with the principal offender, one Miss Oluwayomi Egbeyemi. Indeed, the trial judge aptly stated the position of the law regarding the charge of conspiracy when she held at page 1145 of the record to the effect that proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict if satisfied that the actual person(s) pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete the unlawful design, relying on the decisions in TANKO v STATE [2008] 16 NWLR (Pt. 1114) 597; YAKUBU v STATE [2014] 8 NWLR (Pt. 1408) 111. I am therefore in agreement that the Appellant acted in concert with Miss Oluwayomi Egbeyemi (at large) in carrying out the unlawful design which the law criminalizes. It is abundantly clear from the evidence on record that the Appellant not only provided her corporate account which was used by Miss Oluwayomi Egbeyemi to steal from the complainant, Messrs Lily Container. As a matter of fact, the Appellant herself testified that even though she had registered the Enterprise since 2009, she had opened the corporate account upon the prompting of Miss Oluwayomi Egbeyemi, simultaneously at the time the unlawful act was carried out. The act of opening of the corporate account and handing over of cheques to Miss Egbeyemi seems to me the responsibility of the Appellant as agreed to carry out the unlawful act.
Let me briefly say that the defence of mistake as contained in Section 25(1) of the Criminal Law of Lagos State cannot avail the Appellant in this case. The section states:
“A person who by reason of a mistaken belief in a set of facts held in good faith does or omits to do an act, is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as believed existed.”
As the learned trial judge rightly held at page 1149 of the record of appeal, the mistake of fact as defence will only avail the accused person where the mistake is honest and reasonable. The Supreme Court in the case of AIGUOKHIAN v THE STATE (2004) LPELR – 269 SC fortified this position when per PATS-ACHOLONU, JSC held that;
“the test of honest belief which should shore up a defense of mistake rests apriori on whether the accused honestly and in good faith and without any fault or negligence, made a mistake in the nature of the situational premise prevailing as at the time, and that shall be determined and related to the circumstances as might reasonably to be expected to affect his mind to induce belief or otherwise of the defense of mistake.”
Clearly, the trial Court cannot give an accused person the benefit of a defense which is not supported or reflected by the evidence on record. See OGBOKA v STATE (2016) LPELR – 41177 (CA); EKPENYONG v STATE (1993) 5 NWLR (PT. 295) 513; ASANYA v STATE (1991) NWLR (PT. 180) 422; SHALLA v STATE [2004) 8 NWLR (PT. 875) 396. For the avoidance of doubt, the reasonableness of the Appellant’s belief will only go to the issue as to whether the belief was genuinely held and the relevant question to be asked is whether the state of mind of the Appellant at the time of the act complained of was honest and reasonable. See OGIDI v STATE (2005) 5 NWLR (PT 918) 286. The facts on record in my considered view do not support the Appellant’s stance that she acted under any mistaken belief. In this case, the Appellant testified in chief during the proceedings of 14th March, 2017, as follows:
“Yes in 2011, Yomi Egbeyemi my friend approached me that she is into container sales business and as a staff of Lily Pond Containers, she could not deal directly with the company. She asked me if I had a ready to start company and corporate account in the name of my company. I answered yes to her for the first question and No to the second question. She asked me to open a corporate account for my company, the 6th defendant I did so, because I thought I would need it in the nearest future. I opened a corporate account to trade, she paid in some cheques into the account and whenever she needs withdrawals, I will issue signed blank cheques to her. Sometimes, she comes to get cash. She continually makes withdrawals exhausted all the money she paid into the account….”
I find it curious that the Appellant will seek to rely on the defence of mistake in this case, considering the weighty evidence elicited from her, showing that her belief was not only unreasonable and also that she acted at best negligently in this case. I am surprised that the Appellant will even say she acted under a mistaken belief when from her own testimony she was aware that the purpose for which she was approached by Miss Egbeyemi was to circumvent a lawful order or process. Appellant pointedly stated that Miss Egbeyemi told her to open the corporate account so that proceeds from the unlawful act can be paid to the said corporate account from Lily Pond Containers, whom she Miss Egbeyemi could not directly deal with. If the Appellant had held the said mistaken belief reasonably, she would have been cautious to act in supplying the corporate account to Miss Egbeyemi, she no doubt acted negligently when she failed to probe further and investigate the alleged business purportedly engaged in by Miss Egbeyemi. The case would have been different if the Appellant had been approached by Miss Egbeyemi to solicit for contract from Messrs Lily Pond containers and was therefore paid for the said contract. The action of the Appellant in this case cannot support the stance that she acted under any mistaken belief. In this respect, I resolve this issue against the Appellant.
The third issue borders on the Appellant’s sentence. It is the complaint of the Appellant that even though it was stated on the face of the Criminal Information that the Appellant was charged with offence of conspiracy to commit felony contrary to Section 410 of the Criminal Code Law of Lagos State, which prescribes liability to imprisonment for 2 (two) years, the learned trial judge had erroneously sentenced the Appellant to 3 (three) years imprisonment. I have carefully perused the Criminal Information and I agree with the Appellant’s counsel that the Appellant the section stated in the Statement of Offence in relation to Count 1 is Section 410 of the Criminal Code Law which states:
“Any person who conspires with another to commit any offence in the State which is not a felony, or to do any act outside the State which if done in the State would be an offence but not a felony, and which is an offence under the Laws in force in the place where it is proposed to be done, is guilty of a misdemeanor and is liable to imprisonment for two (2) years.”
It is abundantly clear that the above provision relates to conspiracy to commit an offence which is not a felony. The provision is clear and unambiguous and leaves no one in doubt that it is only applicable where a person has conspired to commit the offence which is known in legal parlance to be a misdemeanor. On the other hand, the offence for which the Appellant was held to have conspired to commit is a felony. See Section 285(1) of the Criminal Code Law of Lagos State. As the learned trial judge rightly alluded, Section 409 of the Criminal Code Law aptly covers the offence of conspiracy to commit felony and it states:
“Any person who conspires with another to commit any felony in the State, or to do any act outside the State which if done in the State would be a felony, and which is an offence under the Laws in force in the place where it is proposed to the done, is guilty of a felony.”
Although the Criminal Code Law did not prescribe any definition for the word “felony”, I have no hesitation in calling in aid the interpretation contained in Section 371 of the Administration of Criminal Justice Law of Lagos State, 2015 which defines felony to mean;
“an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three (3) years or more, or for which is declared by law to be a felony…”
The provision of Section 409 of the Criminal Code Law, unambiguously declares conspiracy to commit felony, to wit, stealing, to be a felony and by the tenor of Section 371 of the Administration of Criminal Justice Law, 2015, it is punishable to minimum imprisonment sentence of three (3) years, as rightly done by the learned trial judge in this case.
The learned trial judge in my view properly considered the evidence on record, the relevant statutory authorities as well as case law to convict and sentence the Appellant on the offence of conspiracy to steal and I have no hesitation in reaching the conclusion that this Court will not disturb the findings and conclusion of the trial judge. The sentence of three (3) years imposed upon the Appellant is proper in the circumstance. The third issue is resolved against the Appellant.
Before closing the curtain on this appeal, I wish to briefly make a comment regarding the reliance of the Appellant’s counsel on the judgment of this Court in a sister case in Appeal No. CA/L/828c/2018 – OLUWAKAYODE ADEOYE v FEDERAL REPUBLIC OF NIGERIA (Unreported Judgment delivered on 1st March, 2019) wherein this Court, per ABUBAKAR, JCA held that the conviction and sentence of the Appellant therein charged as 2nd Defendant at the lower Court was improper owing to the fact that the learned trial judge failed to properly evaluate the evidence elicited in favour of the 2nd Defendant. It is instructive that the Court found in that case that unlike the Appellant herein, the Appellant therein, Oluwakayode Adeoye “did not from his testimony agree 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 record he was consistent, and did not falter, he maintained his story….”
In this case, it is obvious that the Appellant had rushed to perfect the scheme of stealing by the master-mind as she hurriedly proceeded to open the corporate account using the name of the Enterprise in order further the criminal act. Therefore, this Court is not persuaded by the Appellant’s argument that the similar conclusion should be reached in this case.
Above all, I find no merit in the Appellant’s appeal and same is hereby dismissed. The conviction and sentence of the Appellant by the trial Court coram IPAYE, J. on 7th March, 2018 is hereby affirmed.
CROSS – APPEAL
This is a Cross – Appeal against the decision of Hon. Justice O. Atinuke Ipaye of the High Court of Lagos State, Lagos Judicial Division delivered on the 7th March, 2018, wherein the lower Court discharged and acquitted the Respondent for the alleged offence of stealing.
Dissatisfied with the decision of the lower Court, the Cross – Appellant filed his notice of appeal on 27th April, 2018.
The Appellant’s brief of argument is filed 7th June, 2019, deemed 30th January, 2020 and settled by Kayode Oni, Esq., Fadeke Giwa (Mrs.), T. J. Banjo, Esq., S. I Suleiman, Esq. from the Economic and Financial Crimes Commission (EFCC) wherein two issues were formulated for determination by this court thus:
“i) Whether the offence of stealing was not established against the Appellant before the lower Court.
ii) Whether essential elements or ingredients of forgery was not proved against the Appellant before the lower Court.”
While the Respondent’s brief is filed 28th January, 2020, same is settled by Opeyemi Ogunleye, Esq., Nasir Olalekan Lasaki, Esq., Olatunji Sowale, Esq of Abdullahi Ibrahim & Co. Counsel identified a sole issue thus:
“From the terse evidence (both oral and documentary) adduced by the cross Appellant at the lower Court and the failure of the Cross Appellant to prove the offences of stealing beyond reasonable doubt against the Respondent, whether the lower Court was not right when it discharged and acquitted the Respondent from the offence.”
CROSS – APPELLANT’S SUBMISSIONS
Counsel submits that in relation to Count 5 of the charge, Section 278 of the Criminal Laws of Lagos State, 2011 defined stealing and the prosecution at the lower Court was able to prove the conditions material to a charge of stealing. He cited FRN v IKPE (2005) 2 QCCR 155 at 196; CHIANUGO v STATE (2002) NWLR (PT. 750) 225 at 235.
Counsel further submits that the prosecution has been able to successfully prove the count of stealing by the combined testimonies of PW1 – PW3, and that when a person is charged with stealing and the evidence proves that he was guilty of stealing part of the amount alleged in the particulars of the charge or count, the Court can convict without amendment of the amount involved. Counsel relied on SAGOE v QUEEN (1963) NSCC VOL. 3, 233; ONAGORUWA v STATE (1993) 7 NWLR (PT…) PAGE 49 AT 85, PARAGRAPHS C – D; EROMOSELE v FRN (2018) 11 NWLR (PT. 1629) 60; UDE v STATE (2016) 14 NWLR (PT. 1531) 122; OFFOR v QUEEN (1955) 15 WACA 4; ALARAPE V STATE (2001) 5 NWLR (PT. 705) 79; AKINKUNMI v STATE (1987) 1 NWLR (PT. 52) 608; STATE v OLADIMEJI (2003) 14 NWLR (PT. 839) 138 p 161 PARAS C – H.
In conclusion, the Cross – Appellant humbly submits that the prosecution has successfully proven its case against the Cross – Respondent and urges this Court to convict him and upturn the judgment of the lower Court.
CROSS – RESPONDENT’S SUBMISSIONS
Counsel firstly points out that the Cross – Appellant in its brief failed to address substance but rather went on to giving various definitions of stealing from case law and statute, Counsel failed to marry his arguments with the evidence.
The Cross – Respondent contends that our laws in criminal proceedings is settled that the prosecution must in proof of the offence of stealing establish beyond reasonable doubt that the accused person did not commit the crime, failing (sic) which the charge is bound to fail. EDAMINE v STATE (1996) 2 NWLR (PT. 438) PG. 530; STEPHEN OTEKI v AG BENDEL STATE (1986) 2 NWLR (PT. 24) PG. 648; ATANO v BENDEL STATE (1988) 2 NWLR (PT. 75) PG 210; OSHINYE v COP (1960) 5 SC; CHIANUGO v STATE (2002) 2 NWLR (PT. 750) PG. 325; OKEY NWOSU v FRN (2013) LPELR- 22143; WAHABI ADEJOBI v THE STATE (2011) LPELR – 79; EZE v FRN (2013) ALL FWLR (PT. 702) PG. 1748 AT 1802.
Counsel went on to submit that the lower Court was right when it held in its judgment that the Cross Appellant failed to show the nexus, link or connection between the accused persons (which included the Respondent) and the person whose money was stolen., and this in itself was fatal to the Cross – Appellant’s case.
The Cross – Respondent in responding to the Cross – Appellant’s brief submits that the Cross – Appellant was wrong when it submitted and argued that the 1st Defendant was guilty of stealing part of the amount alleged in the particulars of the charge or count.
The Cross – Respondent was not the 1st Defendant at the lower Court and was not shown to have benefitted from the alleged proceeds of crime. Therefore, the allegation of stealing against the Cross – Respondent remains an allegation and wasn’t proved.
Counsel contends that the Respondent did not at any time convert or fraudulently take any property of the nominal complaint or anybody whatsoever. The Cross Appellant has also failed to show to this Court and the lower Court that the Cross – Respondent had criminal intentions to deprive the nominal complainant any property (money) and/or that the proceeds from the money allegedly stolen was used for personal use by the Cross – Respondent.
In conclusion, the Cross – Respondent urges the Honourable Court to dismiss this appeal and uphold the decision of the lower Court.
RESOLUTION
In this appeal, counsel to the Cross-Appellant nominated two issues for determination. The first issue as earlier noted, borders on whether the offence of stealing was not established against the Appellant whereas the second issue is whether the essential elements or ingredients of forgery was not proved against the Appellant. Before I go to the facts and circumstances as well as the merit of the arguments canvassed by the parties in this case, I must not fail to touch on the competence of the present appeal.
It is instructive that the Cross-Appellant has appealed against part of the judgment of the lower Court vide a Notice of Cross-Appeal dated and filed on 7th June, 2019 but deemed 30th January, 2020. In the said Notice of Cross-Appeal, the cross-appeal is predicated on a single ground identified on page 1 to 2 thereof. It is settled law that proliferation of issues is unacceptable in our appellate Courts. While counsel is permitted to formulate an issue out of a ground or grounds of appeal, he cannot formulate two issues out of a single ground of appeal as in the instant cross appeal. See OKONOBOR & ORS v D. EDEGBE & SONS TRANSPORT COMPANY LTD & ANOR (2010) LPELR – 2488 (SC); OGOYI v UMAGBE (1995) 9 NWLR (PT 419) 283 at 297; INEGBEDION v SELO-OJEMEN & ANOR (2013) LPELR – 19769 (SC).
The two issues nominated by the Cross-Appellant are therefore incompetent and liable to be struck out. The Appeal is laid bare and has no leg to stand. It is hereby struck out.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the judgment prepared by my learned brother, Abimbola Osarugue Obaseki-Adejumo, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in advance, the leading judgment delivered by my learned brother: Abimbola Osarugue Obaseki-Adejumo, JCA. I agree that the appeal is drained of any title of merit. I, too, penalise it. With a deserved dismissal, I also strike out the cross-appeal.
Appearances:
O. O. OGULEYE with him, OLATUNJI SOWOLE and K. C. AGOGHO
For Appellant(s)
I. A. MOHAMMED For Respondent(s)
