TOSIN v. F.R.N
(2020)LCN/15602(CA)
In the Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 26, 2020
CA/IB/169C/2018
Before Our Lordships:
Jimi Olukayode Bada Justice of the Court of Appeal
Haruna Simon Tsammani Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
AMULUDUN TOSIN APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO:
Who is a Public Officer?
I am of the view that it would be appropriate to refer to Section 2 of the Corrupt Practices and Other Related Offences Act (supra) which defines a “public officer” in the following words:
“2. In the Act, unless the context otherwise requires –
“Public Officer” means a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers in Magistrate, Area or Customary Courts or Tribunals.” HARUNA SIMON TSAMMANI, J.C.A.
Who is a Public Officer?
It should however be noted that, generally, a public officer is a holder of public office. He operates in the public sector and separate from the private sector. Such officer is entitled to some remuneration from the public treasury and has some authority conferred in him by law. Thus, in Eze v. Okechukwu (1998) 5 NWLR (pt.548) 43 at 73, it was held that:
“A public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some remuneration from the public revenue or treasury. He has some authority conferred on him by law. He also has a fixed tenure of office which must have some permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority. There should be that element of government function. All the above characteristics must be present to vest in a person the status of a public officer. In other words, they must co-exist in person.” HARUNA SIMON TSAMMANI, J.C.A.
Principle of Conspiracy
Now, the offence of conspiracy is created under the Corrupt Practices and Other Related Offences Act; by Section 26(1) (c) therefore which stipulates that:
26. (1) Any person who-
(a) …
(b) …
(c) abets or is engaged in a criminal conspiracy to commit any offence under this Act;
(d) …; shall be guilty of an offence and shall on conviction, be liable to punishment provided for such offence.
The Corrupt Practices and Other Related Offences Act does not define what the offence of conspiracy is under the Act. I shall therefore refer to case law on the subject. The Supreme Court and this Court has defined conspiracy as an agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means. See Okemefune Ndozie v. The State (2016) LPELR – 26067 (SC); Nosike Iboji v. The State (2016) LPELR – 40009 (SC) and Friday Smart v.The State (2016) LPELR – 40827 (SC). The gist of the offence is therefore, the meeting of the minds of the conspirators. It should be noted however, that there is hardly a physical act that can be seen as an act of conspiracy especially when the fact of conspiracy is almost always hatched in secrecy. Thus to determine whether or not conspiracy exists, the Courts make inferences from the acts of the conspirators, done in furtherance of the conspiracy. See Fatai Busari v. The State (2005) LPELR – 24279 (SC); State v. Salawu(2011) 18 NWLR (pt.1279) 580 and Omotola v. State (2009) 7 NWLR (pt.1139) 148. Thus in Njovens v. State (1973) LPELR – 2042 (SC), the Supreme Court held that:
“The overt act or omission which evidence 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…. 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 in common between them and in proof of conspiracy the acts or omission 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.” HARUNA SIMON TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Ogun State High Court of Justice, sitting in Abeokuta, Coram A. A. Akinyemi, J., delivered on the 13th day of June, 2017 in Charge No: AB/ICPC/01/2015.
By an Amended Information dated the 18/5/2016 and filed on the 31/5/2016, the Appellant and two others were charged, tried and convicted on the sundry offences of conspiracy to confer unfair advantage upon one Mr. Soetan Femi Ayoolu, conferring unfair advantage on the said Mr. Soetan Femi Ayoolu and conferring advantage upon self which are offences punishable under Sections 26(1)(c) and 19 of the Corrupt Practices and Other Related Offences Act, 2000. The Brief facts of the case were ably captured by the learned trial Judge at page 381 line 26 – 382 line 16 of the Record of Appeal as follows:
”…The three defendants were at all material times, non-academic staff of Tai Solarin College of Education, Omu-Ijebu, Ogun State, a tertiary institution owned by the Government of Ogun State. By virtue of their employment, they became members of the Non-Academic Staff Union of Educational and Associated Institutions (NASU). The three defendants were at the material time, Chairman, Treasurer and Ex-Officio/Acting Secretary, respectively of the local chapter of the Union. The Union applied for a loan facility on behalf of 120 (One Hundred and Twenty) of its members, from the FCMB Plc – a commercial bank. One of the conditions for the granting of the loan was that it should be guaranteed by the Institution’s authorities. A list of the 120 members with indications of the exact sums they were requesting, accompanied the application for the loan. The loan was granted by the bank. However, at the point of disbursement, the 1st and 2nd defendants gave themselves more money than they had applied for. The 3rd defendant, whose name was not on the original list of beneficiaries at all, also got part of the loan. One Soetan Femi Ayoolu, whose name was also not on the original list was apportioned a part. These disbursements were made by or caused to be made at the instance of the three defendants. The 1st and 2nd defendants were also alleged to have outrightly stole some sums of money out of the loan fund.”
At the trial, the prosecution called three (3) witnesses and tendered several exhibits including the extra-judicial statements of the Appellant. The Appellant who was the 2nd accused person testified in his defence and called one other witness. At the close of evidence, counsel filed and exchanged Written Addresses which were duly adopted at the hearing. Thus, in a considered judgment delivered on the 13/6/2017, the Appellant was convicted on Counts 1, 2 and 5 but was discharged on count 6 which alleged that he stole the sum of Four Hundred and Forty-Three Thousand, Four Hundred and Twenty-Six Naira (N443,426.00) naira. Being aggrieved by the decision of the trial Court, the Appellant has filed this appeal.
The Original Notice of Appeal consisting of two Grounds of Appeal was filed on the 20/7/2017. Same was however amended by the leave of this Court granted on the 08/11/2018. This appeal was therefore heard on the Amended Notice of appeal filed on the 13/11/2018. It consists of three (3) Grounds of Appeal. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments settled by Akeem Agbaje Esq was filed on the 04/02/2019 but deemed filed on the 21/2/2019. Therein, only one issue was raised for determination as follows:
“Whether on the totality of the evidence before the learned trial Judge, the state of the law and the circumstances of the case, the guilt of the Appellant was proved beyond reasonable doubt as laid down by the law.” [Grounds 1, 2 and 3].
The Respondent’s Brief of Arguments settled by Mrs. K.F. Adeoluwa (Assistant Chief Superintendent; Legal of the Independent Corrupt Practices Commission); was filed on the 06/3/2019. Three (3) issues were distilled therein for determination as follows:
a. Whether the Lower Court was right to have held that the Appellant acting and performing duties as Treasurer of Non-Academic Staff Union (NASU) of Tai Solarin College of Education, Omu-Ijebu is a “Public Officer” in that capacity.
b. Whether the trial Court was right when he (sic) refused to find and hold as urged on him that the Appellant as eligible member of Non-Academic Staff Union (NASU) of Tai Solarin College of Education, Omu-Ijebu was entitled to more than the loan facility obtained by him.
c. Whether from the totality of evidence, the Respondent proved its case against the Appellant to warrant his conviction by the trial Court of the offence of criminal conspiracy contrary to Section 26(1)(c), punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.
The Appellant then filed and served an Appellant’s reply Brief of Arguments. It was filed on the 08/4/2019. Considering the facts and the law applicable thereto, I propose to determine this appeal on the three issues formulated by the Respondent. Those issues are clearly drawn from Grounds 1, 2 and 3 of the Amended Notice of Appeal.
On issue one (1), learned counsel for the Appellant referred to Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) in submitting that the Appellant’s right to be presumed innocent has been guaranteed until the contrary is proved by the prosecution. The cases of Nwaturuocha v. The State (2011) 6 NWLR (pt.1242) 170 at 188 and Adeniji v. State (2001) FWLR (pt.57) 809 were then cited to further submit that, the onus was on the prosecution to prove that the Appellant committed the crime charged; and that it is not for the Appellant to prove his innocence. That, to discharge the burden, the prosecution is under obligation to prove all of the essential ingredients of the offence(s) charged beyond reasonable doubt. The cases of Ikaria v. State (2012) 12 SCM (pt.2) 249 and Yisau v. State (1995) 2 NWLR (pt.379) 636 were cited in support. That, in the instant case, the Appellant was convicted for offences committed by a public officer under the Corrupt Practices and Other Related Offences Act, 2000.
Learned Counsel went on to contend that, the Appellant was convicted, first of all, for the offence of conspiracy under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 (herein after referred to as “the Act”). That “a public officer” and “public service of a State” have been defined by Sections 2 of the Act, and 318(1)(f) of the 1999 Constitution (supra). Learned Counsel for the Appellant then contended that for a person to be convicted under Section 19 of the Act, the following ingredients must be proved by credible evidence.
(i). That the Defendant is a public officer.
(ii). That as a Public Officer, the Defendant conferred on himself, or some other person(s) some advantage, which is either corrupt or unfair;
(iii). That the Defendant did so using his position or office in the performance of his duties as such public officer.
Learned Counsel for the Appellant then cited the cases of Apampa v. The State (1982) 6 SC.47; A. G; Bendel State & Ors v. Okwumabua (1980) F.N.L.R 485; Obafemi Awolowo University v. Onabanjo (1991) 5 NWLR (pt. 193) 549 and Justice Kalu Anyah & Ors v. Dr. Festus Iyayi (1993) 7 NWLR (pt.305) 290, to concede that, the Appellant is a public officer by virtue of his employment as a staff of the Tai Solarin College of Education; an Institution wholly owned by the Ogun State Government. Learned Counsel, however, drew our attention to the fact that, the Non-Academic Staff Union of Educational and Associated Institutions of Tai Solarin College of Education, is a chapter of Non-Academic Staff Union of Educational and Associated Institutions (a Trade Union) recognized by law. That, it is apparent from the testimony of the prosecution witnesses, that the Appellant, was at the time of his prosecution, the Treasurer of the Union in the Tai Solarin College of Education.
Learned Counsel for the Appellant also cited Section 54 of the Trade Unions Act and Section 1(1) of the Criminal Code Laws of Ogun State of Nigeria, 2006, to raise the following questions:
(i) Whether the office of the Treasurer of Non-Academic Staff Union of Tai Solarin College of Education is an office within the province of the meaning of public service of Ogun State so as to bring the Appellant within the compass of Section 2 of the Corrupt Practices and Other Related Offences Act, 2000?.
(ii) Whether the Appellant at the material time of the commission of the alleged offences was performing the duties of a public officer in the services of Tai Solarin College of Education or his duties as on officer of Non-Academic Staff Union of Tai Solarin College of Education so as to make him liable and/or amenable to the provisions of the Corrupt Practices and Other Related Offences Act, 2000 particularly, Sections 2, 26(1)(c) and 19 thereof?
Relying on the testimonies of the prosecution witnesses, learned counsel for the Appellant, answered those questions in the negative. That, the evidence on record show that it was the Executive of the Union that applied for the loan facility from the First City Monument Bank, Omu-Ijebu. That it was also, the Executives of the Union that was saddled with the responsibility of disbursing the loan to the beneficiaries.
That the activity of the Union was governed by the NASU Constitution. It was thus contended that the position of the Appellant as the Treasurer of the Union at the material time, though tangential to his position as member of staff of the Tai Solarin College of Education, would not make him in the performance of his duties as the Treasurer of the Union, a public officer within the ambit of Section 1(1) of the Criminal Code Law of Ogun State, or Section 2 of the Corrupt Practices and Other Related Offences Act, 2000.
Learned Counsel for the Appellant went on to submit that, a cursory glance at the charge and evidence on record will show that there was at no point that the prosecution led evidence to show that the Appellant acted in any other capacity than as a member and/or executive of NASU, Tai Solarin College of Education. We were accordingly urged to hold that Section 2 of the Corrupt Practices and Other Related Offences Act is inappropriate in the circumstances of this case as the Appellant is not a public officer for the purposes of the offences stipulated in the Corrupt Practices and Other Related Offences act (I.C.P.C, Act). The case of Ojo v. FRN (2008) 11 NWLR (pt.1099) 467 was cited in support.
In response, learned counsel for the Respondent drew our attention to the definition of a “Public Officer” and “An Official” in Section 2 of the ICPC Act, 2000. We were then urged to apply the definitions in Section 2 of the ICPC Act so as to situate the Appellant within the definition stipulated in the Act. That in proving the charges against the Appellant, the prosecution led evidence through PW1 establishing that the Appellant was a Non-Academic Staff of Tai Solarin College of Education, a tertiary institution wholly owned by the Ogun State Government. That those pieces of evidence were corroborated by the testimony of PW3, who was the Provost of the College; and that same was admitted by the Appellant in his extra-judicial statement admitted in evidence as Exhibits “D” and “D1” and in his testimony in Court during cross-examination.
Learned Counsel for the Respondent had conceded in the Appellant’s Brief of Arguments that he (Appellant) is a public officer within the definition in Section 2 of the ICPC Act, 2000 by virtue of his being a Staff of the Tai Solarin College of Education. That, after so conceding, the learned counsel turned around to argue that since the issues complained of in this matter occurred by virtue of the activities of the Appellant as an executive member of NASU, he cannot be convicted of the offences charged. That, this argument is stretching technicality too far. The reasoning of the learned trial Judge at pages 382 – 384 of the Record of Appeal was commended to us. We were accordingly urged to find and hold that the Appellant came within the meaning of public officer within the contemplation of the ICPC Act, 2000 even in his activities as the treasurer of NASU, Tai Solarin College of Education, Omu-Ijebu, Ogun State since he did not cease to be a member of staff the institution when he became the treasurer of NASU. That to buttress the above argument, we should note that:
1. On the 5/10/2011, the Non-Academic Staff of Educational and Associated Institutions (NASU) of the Institution applied to the First City Monument Bank (FCMB), for a loan facility to the tune of N68,085,000.00 (Sixty-Eight Million and Eighty-Five Thousand Naira Only) for disbursement to its members, to which was attached a “List of the Beneficiaries”. That the said List was not authenticated by the Institution’s Management.
2. In response to the Application, the Bank wrote to the Union vide letter of 30/11/2011, informing it that the loan facility had been approved subject to the Terms and conditions stipulated therein.
It is further argued by learned counsel for the Respondent that the Approval of the loan to the union was subject to the terms and conditions that:
(i). The Bank must receive a Corporate Guarantee of Tai Solarin College of Education duly executed by the Provost and Bursar.
(ii). The Institution must give an irrevocable payment undertaking duly executed by the Provost and Bursar.
(iii). The Tai Solarin College of Education must give an irrevocable undertaking duly signed by the Provost and Bursar, that no staff that currently has his/her salary encumbered by the repayment of an existing facility would be allowed on the list of beneficiaries.
(iv). An undertaking signed by the Provost and Bursar to pay the outstanding principal and interest of any member of NASU – TASCE that dies or leaves the service for whatever reason during the period of the facility upon occurrence of such event.
(v). Schedule to transfer money to the beneficiary accounts which are to be screened and authenticated by the Provost and Bursar.
It was then submitted that the NASU – TASCE and the College Management in its official capacity accepted those conditions whereof the College Management wrote a Letter of Introduction and confirmation to which was attached a List of 120 staff who were to benefit from the loan. That the 120 staff were introduced as permanent staff with no disciplinary action against them. Furthermore, that the Letter stated that the beneficiaries had been duly endorsed/signed and authenticated by the Management of the College. That from that point, any alteration and or adjustment to be made on the list of the 120 staff to benefit from the loan would only be done in conjunction with the Management of the College in compliance with the conditions of the loan.
Learned Counsel for the Respondent went on to submit that, those pieces of evidence underscores the fact that the activities for which the Appellant stood trial, were not exclusively union activities or affairs. That the whole loan regime – its application, approval, disbursement and repayment were closely knit around the college management as evidenced by the documents referred to above. That it is therefore incorrect to argue as done by the Appellant, that the issues complained of in this matter all occurred by virtue of the activities of the Appellant as an executive member of NASU, which is not a public institution. It was thus submitted that, the introduction of the conditions specified in clauses 5 – 9 reproduced by the Bank, the acceptance of those conditions by both the Management of the College and the NASU – TASCE, changed the entire coloration of the loan administration.
Learned Counsel for the Respondent also argued that only a recourse to the “Golden Rule” of interpretation of the definition of “public officer” in Section 2 of the ICPC Act, 2000 will meet the needs of justice and give effect to the true intention of the legislature in the fight against corruption. The cases of A.G; Ondo v. A.G; Federation (2002) 9 NWLR (pt.772) 222 and A.D.H. Ltd v. A.T. Ltd (2006) 10 NWLR (pt.989) 635 were cited in support. We were accordingly urged to hold that the Appellant is a public officer even in the discharge of her functions as member and executive member of NASU – TASCE.
Now, in the resolution of this issue, the learned trial Judge referred to Section 2 of the Corrupt Practices and Other Related Offences Act, 2000 to hold that:
“As Mr. Uthman himself has rightly conceded, the Defendants as staff of Tai Solarin College of Education (TASCE) are public officers, because the institution is fully owned by the Government of Ogun State. By Rule (1) (1)A of NASU Constitution, admitted as Exhibit “Q”, they are members and officers of NASU by virtue of being staff of Tai Solarin College of Education (TASCE). Their status of public officers in Tai Solarin College of Education (TASCE) did not cease to be, when they became members and officers of NASU, but remained. Indeed, should they cease to be staff of TASCE, they would no longer have the locus to be members and officers of NASU, Tai Solarin College of Education (TASCE) chapter. Indeed, in my humble view, it would amount to standing logic on its head, to say in one breath that they are public officers as staff of Tai Solarin College of Education (TASCE) and in another, that they are not, as members and officers of NASU.”
The learned trial Judge then concluded at page 384 lines 3 – 12 of the record of appeal as follows:
“…On the other hand, NASU is a union of employees to which the Defendants belong by virtue of their positions as non-academic staff of Tai Solarin College of Education (TASCE). It is my view that the Defendants’ membership and position as officers of NASU, Tai Solarin College of Education (TASCE) are inextricably interwoven with their status as public officers of Tai Solarin College of Education (TASCE). One does not and cannot exist without the other. Rather, one is dependent on the other. I find and hold therefore, that as members and staff of NASU – TASCE, they are public officers within the meaning of Section 2 of the Corrupt Practices and Other Related Offences Act (CORA), 2000.”
To determine whether or not the learned trial Judge was right in finding as cited above, I am of the view that it would be appropriate to refer to Section 2 of the Corrupt Practices and Other Related Offences Act (supra) which defines a “public officer” in the following words:
“2. In the Act, unless the context otherwise requires –
“Public Officer” means a person employed or engaged in any capacity in the public service of the Federation, State or Local Government, public corporations or private company wholly or jointly floated by any government or its agency including the subsidiary of any such company whether located within or outside Nigeria and includes judicial officers in Magistrate, Area or Customary Courts or Tribunals.”
With the above statutory definition of “public officer” in mind, it would be necessary to consider the totality of the evidence adduced to determine whether or not the Appellant fits into the definition of a “public officer” for the purposes of the offences created under the Corrupt Practices and Other Related Offences Act (supra). It is my view that, to resolve the issue, we should restrict ourselves to the definition supplied by the Act. This is for the purpose of fulfilling the purpose for which the Act was enacted by the legislature. In doing that, I have reminded myself that, the Corrupt Practices and Other Related Offences Act (supra), was enacted to stamp out or at least reduce the prevalence of corrupt practices and other related corrupt acts in our public life. So, in construing the provisions of the Act, a liberal and purposeful construction should be employed so as not to defeat the purpose for which the Act was enacted. In that respect, the provisions of other enactments will not apply except where the words used are in pari materia with the particular provision of the Act under consideration.
It should however be noted that, generally, a public officer is a holder of public office. He operates in the public sector and separate from the private sector. Such officer is entitled to some remuneration from the public treasury and has some authority conferred in him by law. Thus, in Eze v. Okechukwu (1998) 5 NWLR (pt.548) 43 at 73, it was held that:
“A public officer, in my view is a holder of a public office. He is in the public sector of the economy as distinct and separate from the private sector. He is entitled to some remuneration from the public revenue or treasury. He has some authority conferred on him by law. He also has a fixed tenure of office which must have some permanency or continuity. Above all, a public officer has the power to exercise some amount of sovereign authority or function of government. The sovereign authority may be great or enormous. It may be little or small. There should be that element of sovereign authority. So too the exercise of government function in lieu of sovereign authority. There should be that element of government function. All the above characteristics must be present to vest in a person the status of a public officer. In other words, they must co-exist in person.”
In the instant case, PW1 testified to the effect that the Appellant is a Non-Academic Staff of Tai Solarin College of Education, Omu-Ijebu, Ogun State, an institution owned wholly by the Ogun State Government. The Provost of the College (Dr. Abiodun Ojo) who testified as PW3 confirmed that the Appellant is a Non-Teaching or Academic Staff of the College. The Appellant himself, when testifying in Court and in his extra-judicial statement corroborated the evidence of PW1 and PW3 that he is a non-academic staff of the College. Incidentally learned counsel for the Appellant conceded in the Appellant’s Brief of Arguments that the Appellant is a public officer by virtue of his being a member of staff of Tai Solarin College of Education, an Institution owned and operated by the Ogun State Government. Learned Counsel for the Appellant however contends that, the acts of the Appellant leading to his trial and conviction arose from the activities of the Appellant as the Chairman and thus executive member of NASU – TASCE branch, which is not a public institution but a voluntary organization formed to protect the interest of its members only; and therefore not a public officer.
It is apparent therefore, that from the facts and circumstances of this case, that the Appellant is a public officer within the purview of Section 2 of the Corrupt Practices and Other Related Offences Act (supra). From the facts of this case, it is not in doubt that the Appellant became an executive member of Tai Solarin College of Education by virtue of his being a member of staff of the College. In other words, it is his being a member of staff of the college that qualified him to be a member of the NASU – TASCE and thus its Treasurer. I therefore agree with the learned trial Judge that, membership of Non-Academic Staff Union of Educational and Associated Union (NASU) in Tai Solarin College of Education (TASCE) are inextricably tied to the Appellant’s employment as a Non – Academic Staff of the College.
It would be seen also that, the loan in question could not have been approved without the involvement of the Management of the College. In other words, the application for the loan, the approval, disbursement and repayment was inextricably knit around the college management. On that note, let me adopt the conclusion of my learned brother, Bada, JCA in the sister case to this, in Yusuf Temilade v. Federal Republic of Nigeria unreported Appeal No: CA/IB/168C/2018 delivered on the 29th day of March, 2019. Therein, my learned brother held at pages 14 – 15 of the judgment as follows:
“In view of the evidence which the Respondent placed before the lower Court, I cannot agree any less with the reasoning and conclusion of the learned trial Judge that as members of NASU and staff of Tai Solarin College of Education, Omu-Ijebu, that the Appellant and the other two Defendants before the lower Court are public officers within the meaning of Section 2 of the Corrupt Practices and Other Related Offences Act, 2000.
The Appellant in my view came within the meaning of Public Officer within the contemplation of the ICPC Act, 2000 in her activities as an executive of NASU of Tai Solarin College of Education, Omu-Ijebu, Ogun State. This is because her status as Public Officer in Tai Solarin College of Education did not cease to be when she became a member and officer of NASU and conversely, she would lack the locus to be a member of NASU should she cease to be a staff of Tai Solarin College of Education, Omu-Ijebu, Ogun State.”
In my own concurring judgment in the Temilade case cited above, I held as follows:
“From the facts and entire circumstances of this case, it is valid to hold that the Appellant was a public officer within the definition of a public officer under Section 2 of the Corrupt Practices and Other Related Offences Act, 2010 (sic: 2000), at the time the offence for which he was convicted, was said to have been committed. Her status as the Acting Secretary of NASU of Tai Salarin College of Education takes root from her position as an employee of the College. She could not have been the secretary of NASU without being an employee of the College. Accordingly, her status as the A.G; Secretary of the Union cannot be completely separated from her status as an employee of the College. The two are inextricably connected. In other words, they are like siamese twins that must exist together.”
I adopt the above findings as my findings in this appeal, the two appeals having arisen from the same facts, circumstances, and judgment. My conclusion therefore is that, the Appellant was a public officer within the meaning of “public officer” in Section 2 of the Corrupt Practices and Other Related Offences Act. This issue is therefore resolved against the Appellant.
On issue two (2) learned counsel for the Appellant contended that the prosecution must go further to establish that the benefit conferred by the Appellant on himself, relation or associate, or any public officer is a corrupt or unfair one. In other words, that it is only where the benefit or the advantage gained by the Appellant or conferred on another is done with the purpose of conferring undue advantage or undeserved favour on himself or another, that such act will became a criminal or corrupt act. It was therefore submitted that, it is paramount for the prosecution to lead evidence to prove the specific purpose for which the benefit or gain was given or conferred. The case of Folarin v. State (1995) 1 NWLR (pt. 371) 313 was cited in support.
Learned Counsel for the Appellant then reproduced the charges against the Appellant before the trial Court, and went on to submit that, a cursory look at counts 2 and 5 would show that the evidence led by the prosecution against the Appellant was at variance to the offences with which he (Appellant) was charged, thereby making the case against the Appellant unsustainable. That it is so because, the prosecution failed to establish the specific purpose for which the alleged benefit or advantage was given. The cases of Mandilas & Carraberis Ltd v. IGP (1958) SCNLR 355 and Oladejo v. State (1994) 6 NWLR (pt. 348) 101 were then cited to submit that, in a criminal trial, the act of the accused must be brought within the confines of the particulars of the offence charged.
Learned Counsel for the Appellant went on to submit that, it is apparent from the evidence on record, that the Appellant in Exhibits “B” and “B1” got more money than he was entitled to from Exhibits “K” and “K1”. That, however, PW3 admitted that it is NASU who applied for the loan that has the power to amend the list of beneficiaries, and that the only wrong committed by the Appellant is that he collected more money through Exhibits “B” and “B1” from the loan granted to NASU, than what was originally applied for by him. That one Mr. Soetan Femi Ayoolu who was not on the original list authenticated by PW3, was paid. It was thus submitted that, the prosecution failed to adduce any evidence of unfair advantage which the Appellant conferred on himself or on Mr. Soetan Femi Ayoolu in view of the testimony of PW3 to the effect that the Executive of NASU had the power to alter the List of beneficiaries of the loan facility granted by FCMB. We were accordingly urged to hold that the prosecution failed to establish the essential elements of the offences charged in counts 2 and 5 of the Amended Charge.
Now, the Appellant herein, was charged on Count 5 of the Information for using his position as Treasurer of Tai Solarin, College of Education, Non-Academic Staff Union to confer unfair advantage upon himself when he approved and advised the First City Monument Bank (FCMB), Omu-Ijebu, to pay into his (Appellant’s) account, the sum of N1,887,450.00 from the loan amount obtained from the Bank, when he was not entitled to the said amount. That, this act constitute an offence punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000. Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 stipulate that:
“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantage upon himself or any relation or associate of the public officer or other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for five (5) years without option of fine.”
To convict for an offence under the above stated provision, the prosecution who have the burden of prove, must adduce credible evidence to prove the following facts beyond reasonable doubt:
(a). that the accused person or prisoner is a public officer;
(b). that he used his office or position to confer any corrupt or unfair advantage upon himself or any relation or associate of other public officer.
The first fact has been resolved to the effect that the Appellant is a public officer as defined by Section 2 of the Corrupt Practices and Other Related Offences Act. What remains to be resolved is whether the prosecution had adduced credible evidence to show or establish that the Appellant used his office as such public officer to confer unfair advantage upon himself. In resolving the issue, the learned trial Judge made the following findings.
“The evidence before this Court reveals that by exhibit “G”, the Union sought for a loan facility of N68,085,000.00 (Sixty Eight Million and Eighty–Five Thousand Naira only) from FCMB on behalf of 120 members. The list of the beneficiaries of the said loan is contained in Exhibit “G1, attached to the application. The covering letter written by the Defendants referred to the list as the “List of beneficiaries”. The list contains the names of the 120 members, their salaries and the specific amount of the loan being requested by each of them. The names of the 1st and 2nd Defendants were on the list as numbers 20 and 32 respectively and they applied for the sums of N230,000,00 and N540.000.00 respectively… while it is true that every member of the union has a right to apply for a loan through the union, in this particular instance, it is clear that the loan application was made to the bank on behalf of only 120 interested members. While every member of the union had an equal right to apply for a loan, only those who exercised this right by signifying their intention, and fulfilling all necessary pre-conditions and on whose behalf the loan application was made, would be entitled or eligible to draw on it in the proportion applied for by them. Therefore, it is my view that only those 120 members whose names were on the list were entitled to benefit from the loan in the sums requested by them, after the loan was granted.”
The learned trial Judge went on to find and hold as follows:
“Therefore, it is my view that only those 120 members whose names were on the list were entitled to benefit from the loan in the sums requested by them, after the loan was granted. The evidence before this Court, particularly from the Provost of the College, Dr. Abiodun Ojo (PW2), and which was uncontradicted, was to the effect that these names were screened and verified by the authorities of the College and that the College also had to guarantee the request as one of the conditions stipulated by the bank. There is no evidence before this Court that this list of beneficiaries or applicants was at any time altered to the knowledge and with the approval of the College… However, further evidence, specifically Exhibit “B”, showed that the Defendants wrote to instruct the bank after the loan had been secured, to disburse the sum of N1,887,000.00 to the 2nd defendant and N2,693,203.14 to the 1st Defendant respectively. The evidence of PW1 to the effect that each of the Defendants benefitted from these sums was uncontradicted. The evidence that these sums were far above the sums applied for by the 1st and 2nd Defendant was also uncontradicted.”
Upon the above findings the learned trial Judge concluded that, there is no evidence to show that the Appellant applied or obtained the approval of the College Management to vary the sums originally requested by him. Having perused and reflected on the oral and documentary evidence on record, I am of the view that the above quoted findings of the trial Court are supported by the evidence on record; and which findings I adopt as mine. Indeed, the Appellant having applied for the loan of N540,450.00 which was screened and approved by the College Management, considering the capacity of the Appellant to repay in view of his earning capacity, the Appellant had no power to unilaterally review, alter and/or adjust the amount he was entitled to from the loan of N68,085.000:00 the Union had secured from the bank. Such review, alteration and adjustment could only be valid with the concurrence of the College Management. The issue is not whether the Appellant was entitled to seek the loan, or that he was repaying the amount he had allocated to himself, but whether he had the legal capacity to unilaterally assign to himself the amount he collected, when the amount that was assessed and approved for him with the concurrence of the College, which served as his guarantor was far below the amount he allocated to himself.
The evidence on record showed clearly that, the Appellant, using his position as the Treasurer of NASU – TASCE branch, unilaterally allocated to himself the sum of N1,887,000.00, far above the sum of N540,450.00 he applied for as loan. The Appellant never denied that he took the amount involved nor that he applied the money to confer upon himself, some benefit. On that note, I am of the view, and do hold that, the learned trial Judge was right when he held that:
“From the facts and evidence before this Court therefore, I find and hold that the three of them were not entitled to the sums obtained by them. Rather, they acted unilaterally, using the advantage of their positions as principal officers of the Union to confer a corrupt benefit upon themselves, to the detriment and at the expense of others whose names had been used to apply for the loan.”
On that note, I hereby resolve this issue, issue two (2), against the Appellant.
On issue three (3) which deal with the charge for conspiracy, learned counsel for the Appellant contended that, if we find that the charges on counts 2 and 5 of the Amended charge have not been proved beyond reasonable doubt, it would mean that the charge of conspiracy in count 1 would no longer arise. The case of Albert Ikem v. State (1985) 1 NWLR (pt.2) 378 at 89 was cited in support and to further insist that the essential ingredients of conspiracy were not proved by the prosecution. That the testimony of PW3 and that of the Appellant show that there was no evidence of abetting as Exhibit “B” and “B1” were not shown to have been clandestinely made or in violation of the Constitution of NASU. That the said Exhibits “B” and “B1” were made by the executive of NASU, Tai Solarin College of Education and that failure of the executives to pass same through the Institution will not constitute a criminal conspiracy under the Independent Corrupt Practices Act (ICPC, Act).
Learned Counsel for the Appellant then cited the cases of Adebayo v. The State (1987) 2 NWLR (pt. 57) and Erim v. The State (1994) 5 NWLR (pt. 346) 101 to describe the various ways a conspiracy can be formed, and to submit that there was no evidence accommodating any of those ways that a conspiracy can be formed. That, a conspiracy to commit an offence is often inferred from circumstantial evidence which must lead irresistibly to the guilt of the accused person. Furthermore, that there was no evidence of common agreement or purpose between the Appellant and the other accused persons; that Exhibits “B” and “B1” are the only premises upon which the conspiracy could be inferred, and also from the testimony of PW3, to the effect that the NASU executives had the power to alter the List of prospective beneficiaries of the loan facility. That in the instant case, the evidence upon which to infer conspiracy is lacking. We were accordingly urged to resolve this issue in favour of the Appellant, and to find that the charge of conspiracy was not proved.
Responding to the arguments of the Appellant on the charge of conspiracy, learned counsel for the Respondent contended that to prove conspiracy under the Corrupt Practices and Other Related Offences Act, 2000, the prosecution must show that as between the conspirators, there was a common intention to commit the offence charged. The cases of Abacha v. State (2002) 11 NWLR (pt.779) 497; Njovens & Ors v. The State (1973) NMLR 76; Oyakhere v. State (2005) 15 NWLR (pt.947) 159 at 178 and State v. Usman (2005) 1 NWLR (pt.906) 80 at 152 & 163 were then cited to submit that, in the instant case, there was evidence of conspiracy. That at the trial, Exhibit “B” was tendered and admitted in evidence through PW1 without objection. It was then submitted that, Exhibit “B” shows that the Appellant and the co-accused used their positions as Chairman, Treasurer and Acting Secretary respectively of the Union and authored the exhibit, instructing the Bank to credit the accounts of some 16 listed beneficiaries with various sums amounting to N18,654,803.14 from the Union’s Loan Account. That on the List was one
Mr. Soetan Femi Ayoolu.
Learned Counsel for the Respondent went on to submit that, the Appellant signed Exhibits “B” and “B1” knowing that the said Mr. Soetan Femi Ayoolu was not a member of NASU in Tai Solarin College of Education. That, in that respects, the Appellant and the co-accused used their positions as executives of the Union to confer unfair advantage to the said Mr. Soetan Femi Ayoolu which featured on Exhibits “B” and “B1” which is the Letter written to FCMB along with a List of those to be credited with various sums from the Loan Account, the name was conspicuously missing on Exhibit “L”, the Letter written to the College Management by the Defendants, explaining how the loan was disbursed. That, this fact was admitted in cross-examination by DW1 and DW2.
Learned Counsel for the Respondent urged us to hold that the Appellant and the other accused persons at the trial knew that the 120 staff who applied for the loan had the amounts they applied for, screened viz-a-viz their emoluments and other financial obligations, before the College Management approved them as illegible for the loan. That the Appellant still authored Exhibits “B” and “B1” and included the name of the Appellant and Mr. Soetan Femi Ayoolu, and tried to hide this fact from the College Management vide Exhibit “L”. That, this fact of hiding same from the College Management consummated both the actusreus and mensrea of the offences charged against him. We were accordingly urged to resolve this issue against the Appellant, and find that the charge of conspiracy was duly proved beyond reasonable doubt.
Now, the offence of conspiracy is created under the Corrupt Practices and Other Related Offences Act; by Section 26(1) (c) therefore which stipulates that:
26. (1) Any person who-
(a) …
(b) …
(c) abets or is engaged in a criminal conspiracy to commit any offence under this Act;
(d) …; shall be guilty of an offence and shall on conviction, be liable to punishment provided for such offence.
The Corrupt Practices and Other Related Offences Act does not define what the offence of conspiracy is under the Act. I shall therefore refer to case law on the subject. The Supreme Court and this Court has defined conspiracy as an agreement between two or more persons to do an unlawful act, or to do a lawful act by unlawful means. See Okemefune Ndozie v. The State (2016) LPELR – 26067 (SC); Nosike Iboji v. The State (2016) LPELR – 40009 (SC) and Friday Smart v.The State (2016) LPELR – 40827 (SC). The gist of the offence is therefore, the meeting of the minds of the conspirators. It should be noted however, that there is hardly a physical act that can be seen as an act of conspiracy especially when the fact of conspiracy is almost always hatched in secrecy. Thus to determine whether or not conspiracy exists, the Courts make inferences from the acts of the conspirators, done in furtherance of the conspiracy. See Fatai Busari v. The State (2005) LPELR – 24279 (SC); State v. Salawu(2011) 18 NWLR (pt.1279) 580 and Omotola v. State (2009) 7 NWLR (pt.1139) 148. Thus in Njovens v. State (1973) LPELR – 2042 (SC), the Supreme Court held that:
“The overt act or omission which evidence 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…. 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 in common between them and in proof of conspiracy the acts or omission 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.”
In the instant appeal, the Appellant was convicted with two other persons named in the charge to confer unfair advantage on one Soetan Femi Ayoolu, when they directed the FCMB to pay to the said Mr. Ayoolu, the sum of N1,331,250,00 from the loan obtained by the NASU of Tai Solarin College of Education; when he (Mr.Ayoola) was not a member of the Union nor a Staff of the Tai Solarin College of Education. In determining the issue, the learned trial Judge found and held at page 388 of the record of appeal as follows:
“… However, the evidence before this Court shows that all three Defendants executed Exhibit “B”, and its attachment, by which they collectively, as accredited officers of NASU – TASCE Chapter, requested and/or, authorized the bank to pay money to the said Soetan Femi Ayoolu, when they knew that he was not entitled to it. It is my firm view that by that conduct, an agreement to do an illegal act can be easily inferred, and I so hold. By signing Exhibit “B” together. They acted in concert to execute a wrongfully act, namely; to give an unfair advantage to the said Soetan over those members of NASU – TASCE on behalf of whom the loan was actually secured. Looking at the list of original applicants and the sums applied for by them, vis-à-vis the amount given to Soetan, it does not take much to see that what could have gone to several members, was given to Soetan alone, to the disadvantage of those several others. This happened because the three Defendants acting together, made it happen. I find and hold that the prosecution has satisfactorily proved this case of conspiracy against them.”
The above finding of the trial Court is amply supported by the evidence on the records. The evidence placed before the trial Court as evidenced by Exhibits “B” and “B1” reveal that, the Appellant and the other two accused persons, who were Chairman, Treasurer and Ag. Secretary of the Union directed the Manager of the FCMB, Imepe Branch, Ogun Stated to credit the account of some 16 beneficiaries of the loan with various sums amounting to N18,654,803.14; from the Unions Loan Account with the Bank. There is clear evidence on the record that, in authoring Exhibit “B” and ”B1”, the Appellant knew that Mr. Soetan Femi Ayoolu was neither a member of NASCE in Tai Solarin College of Education nor a member of Staff of Tai Solarin College of Education. Of course, they knew that Mr. Ayoolu was not a beneficiary of the said loan since he was not qualified to apply for the loan in the first place; yet they included his name in Exhibits, “B” and “B1” so that he unlawfully benefited from the said loan. By so doing, the Appellant conferred an unfair advantage to the Mr. Soetan Femi Ayoolu. This is an offence contrary to Section 26 (1) (c) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000. This issue is therefore, also resolved against the Appellant.
It would be seen that all the three issues raised in this appeal have been resolved against the Appellant. The appeal therefore lacks merit. It is accordingly dismissed. Consequently, the judgment of the Ogun State High Court holden at Abeokuta, delivered on the 13th day of June, 2017 in charge No: AB/ICPC/01/2015 is hereby affirmed.
JIMI OLUKAYODE BADA, J.C.A.: I had a preview of the lead Judgment of my Lord, HARUNA SIMON TSAMMANI, JCA, just delivered. My learned brother has dealt with the issues in this appeal in a lucid manner and I agree with the reasons given as well as the conclusion reached that this appeal lacks merit.
I am also of the view that this appeal lacks merit and it is dismissed by me.
I abide by the consequential order made in the said lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I had a preview of the lead judgment delivered by my learned brother, Haruna Simon Tsammani, JCA. I completely agree with him that any review, alteration and/or adjustment to the list of beneficiaries and amount due to them would be valid only where the consent of the college management is sought and obtained.
In the case AWOLESI VS. NATIONAL BANK OF NIGERIA LTD (1962) LPELR-25 106 (SC) @ 4, PARAS. B-F. the Supreme Court, per Taylor, JSC held thus:
“In the case of Ward V. National Bank of New Zealand (1882-3), 8 A.C. 755 at 764, Lord Justice Cotton’s observations in Holme V. Brunskill, 3 Q.B.D. 495 are contained in the judgment of their Lordships delivered by Sir Robert P. Collier, which reads thus:
“The true rule, in my opinion, is that if there is any agreement between the principals with reference to the contract guaranteed, the surety ought to be consulted, and that, if he has not consented to the alteration, although in cases where it is without inquiry evident that the alteration is unsubstantial, and one which cannot be prejudicial to the surety, the surety may not be discharged; yet that, if it is not self evident that the alteration is substantial, or one that cannot be prejudicial to the surety, the Court will not in an action against the surety, go into an enquiry into the effect of the alteration.”
In the instant appeal, the credit facility in the sum of N68,085,000.00 extended to Non-Academic Staff Union of Educational and Associated Institutions (NASU) was guaranteed by the management of Tai Solarin College of Education, Omu-Ijebu, Ogun State. The college management guaranteed the amount sought for by its staff who were members of NASU. The total sum of money guaranteed in favour of the Appellant a staff was N540,000.00 from the lump sum. He however used his position as Treasurer of NASU to withdraw the sum of N1,887,000.00 from the lump sum. This is a substantial alteration to the amount due to him endorsed on the list of beneficiaries and approved by the College management. The College management was not consulted neither was its consent obtained before the alteration. The learned trial Judge was therefore right when he held that the Appellant used the advantage of his position to confer a corrupt benefit upon himself to the detriment and at the expense of others whose names were used to apply for the loan.
It is for the above and the fuller reasons given by my learned brother in the lead Judgment that I also dismiss this appeal for being unmeritorious.
Appearances:
Akeem Agbaje, Esq. with him H. O. Adeniran, Esq. and A. M. Fade-Aderigbigbe; Esq. For Appellant(s)
K. F. Adeoluwa (Mrs) (Assistant Chief Legal Officer; I.C.P.C.) For Respondent(s)