OLUTOPE v. FRN
(2020)LCN/15293(CA)
In The Court Of Appeal
(IBADAN JUDICIAL DIVISION)
On Friday, June 26, 2020
CA/lB/165/2019
Before Our Lordships:
Fatima Omoro Akinbami Justice of the Court of Appeal
Tijjani Abubakar Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
OLADIPO FESTUS OLUTOPE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
DEFINITION OF THE OFFENCE OF STEALING ACCORDING TO SECTION 283 OF THE CRIMINAL CODE LAWS OF OYO STATE
As rightly pointed out by the Defendant’s Counsel, Section 283 (1) [Sic] of the Criminal Code, Cap 38, Laws of Oyo State defines the offence of stealing in the following words:
383 (1) “A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.”
From the said provisions of the law under which the four counts for which the Appellant was charged were created, the sums of money the Appellant was alleged to have stolen exceeded one thousand naira, and such amount is surely capable of being stolen. Therefore the contention of the Appellant that the transaction between him and the Complainant is contractual has no basis as there is no provision in the law that money emanating from a commercial or contractual transaction is incapable of being stolen. See ABREFERA Vs. FRN (2018) LPELR-44274 (CA) Pg. 14-19, Paras. F – E and AYENI vs. THE STATE (2016) LPELR-40105 (SC) Pg. 12, Paras. A — B where the Supreme Court considered Section 383 (i) of the Criminal Code Law of Ondo State 1978 which is in pari materia with the provisions of Section 383 (1) of the Criminal Code, Cap 38 Laws of Oyo State 2000 as reproduced above; the Supreme Court further at Pg. 33-35, Paras. D — C per NWEZE, JSC held that:
“…A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents: … (f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to pay the amount to the owner… (3) The taking or conversion may be fraudulent, although it is effected without secrecy or concealment…” PER ABUBAKAR, J.C.A.
WHETHER OR NOT A JUDGEMENT AGAINST WHICH AN APPEAL IS BROUGHT IS PRESUMED CORRECT UNTIL THE APPELLANT PROVES OTHERWISE
It has been long settled that the Judgment against which an appeal is brought is presumed to be correct until the Appellant otherwise satisfies the Appeal Court that it is wrong and ought to be set aside. See FAWEHINMI vs. NBA & ORS (No. 1) [1989] 2 NWLR (Pt. 105) 494; (1989) LPELR-1260 (SC) Pg. 29, Paras. B – D and NNPC vs. FAMFA OIL LTD [2009] 12 NWLR (Pt. 1156) 462; (2009) LPELR-2023 (SC) Pg. 12, Paras. B – D. PER ABUBAKAR, J.C.A.
WHETHER OR NOT THE PROSECUTION IS OBLIGATED TO CALL A NUMBER OF WITNESSES
That notwithstanding, the Court aptly stated the position of the law; the Prosecution does not have to call a particular witness, the evidence of a sole witness may be sufficient to prove conviction where that sole witness gives evidence that proves the offence beyond reasonable doubt. See: SIMEON Vs. THE STATE (2018) LPELR-44388 (SC) Pg. 30, Paras. A – E where my law lord, KEKERE-EKUN, JSC held as follows:
“… It is also settled that the prosecution is not required to call a host of witnesses to prove its case beyond reasonable doubt. The evidence of a single witness, if believed, is sufficient to ground a conviction… What is important is not the number but the quality of the evidence of the witness(es) called. Once the prosecution is able to produce credible and convincing evidence to the commission of the offence by the accused person beyond reasonable doubt, the onus is discharged.”
See: also AYENI vs. THE STATE (2016) LPELR-40105 (SC) Pg. 27, Paras. A – D; OCHANI vs. THE STATE (2017) LPELR-42352 (SC) Pg. 31, Paras. B – F; IKENNE vs. THE STATE (2018) LPELR-44695 (SC) Pg. 15, Paras. C- F and IDAGU vs. THE STATE (2018) LPELR-44343 (SC), Pg. 47-491 Paras. D – A, where the Supreme Court per my Lord AUGIE, JSC held that:
“A vital witness is a witness, whose evidence may determine the case one way or the other, and failure to call him is fatal to the Prosecution’s case… But the Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call an eye witness or every person present at the scene of the crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt. …Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence. At any rate, where an accused feels strongly that the evidence of particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit down and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own. If the Appellant needed the evidence of the first deceased’s wife, whom he blamed for the incident, there is nothing in the statute books that hinders him from calling her as his defence witness. But he cannot be heard to complain or quarrel with the Prosecution for not calling her as a witness. PER ABUBAKAR, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL JUDGE TO EVALUATE AND ASCRIBE PROBATOVE VALUE TO THE EVIDENCE OF WITNESSES BEFORE IT
It is trite that it is the learned trial Judge who has the duty to evaluate and ascribe probative value to the evidence of witnesses being the one who had the opportunity of seeing and hearing the witnesses. See TUKUR Vs. UBA & ORS (2012) LPELR-9337 (SC), Pg. 45, Paras. B – E; UBA PLC vs. J.l. EFEMINI & SONS (2018) LPELR 44150 (CA), Pg. 19-20, Paras. C – C and MAMUDA vs. STATE (2019) LPELR-46343 (SC), Pg, 15-16, Paras. F — B. PER ABUBAKAR, J.C.A.
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Oyo State High Court, sitting in Ibadan, delivered by OWOLABI, J. on the 27th day of November, 2018 in charge No: 1/16EFCC/2017. The Judgment is found at pages 266 — 323 of the Records of Appeal. The Appellant was charged and arraigned on a four-Count Charge of stealing contrary to Section 390 of the Criminal Code, Cap 38 Laws of Oyo State, 2000; the information and Proof of Evidence dated 215t of December, 2017 is contained at pages 2 — 81 of the Records of Appeal. An Amended Charge was filed against the Appellant on the 14th day of February, 2018 found at pages 131 — 132 of the Records; the amendment did not change the four-Count Charge against the Appellant— only the name of the accused and some particulars of the offence were amended. At the conclusion of trial, the Court found that the Respondent had proved its case against the Appellant beyond reasonable doubt and consequently found the Appellant guilty of the offence of stealing. The Appellant was therefore sentenced to 6 (six) years imprisonment on each of the four counts; and ordered that the sentences shall run concurrently.
The Appellant became aggrieved by the Judgment and therefore made for this Court armed with Notice of appeal which was later amended on the 14th of May, 2019 containing 8 (eight) Grounds of Appeal. The Appellant’s Brief of Argument was filed by Counsel Onifade Esq. on the 14th day of May, 2019. The Amended Notice of Appeal and Appellant’s Brief of argument were deemed as properly filed and served on the 24th day of February, 2020. The Respondent’s Brief of argument was filed by Ifeanyi Agwu Esq. on the 24th of February, 2020. In the Respondent’s Brief of argument, Counsel incorporated argument in support of the Respondent’s Motion on Notice dated 24th of February, 2020 wherein the Respondent challenged some of the Grounds contained in the Amended Notice of Appeal. The Appellant filed a Counter-Affidavit to the said Respondent’s Motion on Notice deposed to by one Adeyemo Ibrahim on the 12th of March, 2020. The learned Counsel for the Appellant also filed a Reply Brief on the same 12th of March, 2020.
The three issues distilled for determination by the Appellant’s counsel are as follows:
1. WHETHER the learned trial judge of the lower Court was right to have refused a No case submission of the Appellant.
2. WHETHER from the evidence and circumstances of this case, the lower Court was right in law to have convicted and sentenced the Appellant for an offence of stealing.
3. WHETHER the learned trial judge was right to have ordered that the Appellant should pay the Complainant, the sum of money alleged agreed with the Complainant when there was no such clear-cut agreement.
The Respondent’s Counsel on the other hand formulated a sole issue for determination, the sole issue is reproduced as follows:
Whether from the totality of evidence, the lower Court was right in convicting and sentencing the Appellant for the offence of stealing as charged?
THE RESPONDENT’S MOTION ON NOTICE
I had stated earlier that the Respondent herein filed a Motion on Notice dated 24th of February, 2020 wherein the Respondent challenged some of the Grounds in the Amended Notice of Appeal. The grounds for the Application are basically that Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal relate to the Ruling of the trial Court delivered on the 23rd of February, 2018 on the Appellant’s No Case Submission which was rejected by the lower Court; that the Appellant failed to obtain the leave of the trial Court or of this Court to appeal against the interlocutory decision; and that the said Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal are grounds of facts or mixed law and facts and require the leave of the trial Court or of this Court to be competent.
The learned counsel for the Respondent contended that by the provisions of Section 24 of the Court of Appeal Act, appeals from the High Court in respect of interlocutory orders and decisions must be with the leave of Court; and that the Appellant herein failed to seek for and obtain the leave of the trial Court or of this Court before filing Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal and Issue No. 1 formulated therefrom in the Appellant’s Brief which admittedly are against the interlocutory decision of the trial Court on the No Case Submission made by the Appellant in the course of the trial at the Court below. Counsel referred to GABARI Vs. IL ORI [2002] 14 NWLR (Pt. 786) Pg. 78 at 93, Paras. B – D; METUH vs. FRN [2018] 10 NWLR (Pt. 1628) Pg. 399 at 411-415; BAR. YUSUF DANKOFA vs. FRN [2019] 2 MJSC (Pt. II) Pg. 1 and GARUBA vs. OMOKHODION [2011] 15 NWLR (Pt. 1269) Pg. 145 at 183-184, Paras. F -A to submit that the said Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal being a challenge to the exercise of discretion by the trial Court are grounds of mixed law and facts.
Learned counsel for the Respondent further submitted that although the Appellant’s choice to wait for the final decision of the trial Court before appealing the interlocutory decision is commendable as it saves precious litigation time; but that the Appellant failed to follow the proper procedure. Counsel referred to OGIGE vs. OBIYAN [1997] 10 NWLR (Pt. 524) Pg. 179 at 195, Paras. F – H; AJAYI Vs. OJOMO [2000] 14 NWLR (Pt. 688) Pg. 447 at 457, Paras. B — D and MADAGWA vs. STATE [1988] 5 NWLR (Pt. 92) Pg. 60 to urge this Court to sustain the objection by the Respondent and accordingly strike out Grounds 4, 71 and 8 of the Appellant’s Amended Notice of Appeal for reasons of being incompetent.
Responding to the application, the learned Counsel for the Appellant filed a Counter-Affidavit on the 12th of March, 2020 as earlier referred to wherein it was stated that the said Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal are competent; that they are specifically matters of law seeking an interpretation of the application of Section 10 of the Legal Practitioners Rules of Professional Conduct, 2007 and Sections 17 & 18 of the Administration of Criminal Justice Law of Oyo State, 2016; and that the decision of the trial Court whether final or interlocutory is appealable as of right. Learned Counsel for the Appellant submitted that the Respondent’s objections to Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal are misconceived and therefore unwarranted; and that by the provisions of Section 241(1) (a) and (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), appeals from the High Courts are as of right as in the instant case.
Learned counsel for the Appellant further contended that Section 241(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) does not specify whether the decision being appealed against is interlocutory or final. Counsel further referred to EKUNOLA Vs. CBN [2013] 7 SCM Pg. 40 and OGOLO Vs. OGOLO [2006] 4 SCM 147 at 162-163 to submit that a ground of appeal that raises a complaint on an issue of law based upon accepted or admitted facts is a ground of mixed law and facts. Learned counsel further referred to RABIU Vs. THE STATE [1980] 8-11 SC Pg. 130 at 156-157 to contend that a right conferred by the Constitution cannot be taken away by any other statutory provision except by the Constitution itself; that in the instant case, the Constitution having conferred a right of appeal as of right on the Appellant, the Court of Appeal Act or Rules of Practice made under same cannot take away such a right; and that any law inconsistent with the Constitution will be rendered inconsistent and void.
Learned counsel further referred to ADERONMU Vs. OLOWU [2000] 4 NWLR (Pt. 652) Pg. 253 to submit that although it is inelegant to lump together in one ground of appeal complaints of error in law and facts, doing so without more cannot render the ground of appeal incompetent in law. Counsel cited ORAKOSIM VS. MENKITI [2001] 23 WRN Pg. 100 and KWARA STATE CORPORATION & ORS vs. AIC NIG. & ANOR [2009] 4 WRN Pg. 90 at 113, Lines 15 — 25 to further argue that Grounds 4, 7, and 8 of the Appellant’s Amended Notice of Appeal are competent; and that the said grounds must not be read in isolation but in conjunction with the particulars thereof. In conclusion, the learned Counsel for the Appellant referred to EKUNOLA Vs. CBN (Supra) to submit that assuming the said grounds are even incompetent, same would not have amounted to striking out or dismissing the appeal because the Respondent has not complained against all the Grounds of Appeal in the Appellant’s Amended Notice of Appeal and that even a lone competent ground of appeal is sufficient and therefore competent to sustain an appeal.
RULING ON THE MOTION ON NOTICE
Upon a careful consideration of the Application, there is no doubt that what the Respondent is seeking is that Grounds 4, 7 and 8 of the Appellant’s Amended Notice of Appeal be struck out along with Issue No. 1 formulated from the said Grounds. The said Issue No. 1 in the Appellant’s Brief of argument reads as follows: “WHETHER the learned trial judge of the lower Court was right to have refused a No case submission of the Appellant”. Evidently, the Appellant is by this issue, challenging the Ruling of the lower Court on the No Case Submission which was delivered on the 23rd of February, 2018, upon careful perusal of the Judgment, it appears to me that the Appellant, through his Counsel raised an issue on the Ruling on the No Case Submission; see page 286 of the Records of Appeal where the learned trial Judge held as follows: “Counsel noted that, the Ruling of this Court on the No case Submission delivered on 23rd February, 2018 was given per incuriam.”
In deciding the issue under which the Appellant made the foregoing submission, the learned trial Judge at page 300 of the Records of Appeal held that: “It must be emphasized that, the issue raised by the Defendant’s Counsel, particularly the failure of the author of the petition to affix his seal on it, cropped up when the Defendant’s Counsel made a No Case Submission on behalf of the Defendant at the close of the Prosecution’s case…” The learned trial Judge then referred to the Ruling of the lower Court on the No Case Submission dated 23rd February, 2018 and further at page 301 of the Records of Appeal held that: “The Defendant’s Counsel in his Written Address took the view that, the Court’s decision on Exhibit A in the said Ruling was given per incuriam, Counsel at the adoption of the Final Written Addresses urged the Court to set aside its own decision on the Petition.” The learned trial Judge then concluded at page 304 of the Records of Appeal as follows:
“Before I draw the curtain on this issue, let me emphasize that, if indeed, as contended by the Defendant’s Counsel, that this Court’s decision on the petition in its Ruling was reached per incuriam, the fact cannot be gained said that, this Court has jurisdiction to do so, the redemptive power in our hierarchical structure lies not in this Court but to the Court next on the rung of the judicial ladder. To accede to Counsel’s request for a review of that decision in my view, is for this Court to make itself readily available to be goaded, starry-eyed to stray or veer-off dangerously into the excessive appellate domain of the Court of Appeal. No! I won’t take the bait.”
The Appellant formulated Issue No. 1 from Grounds 4, 7 and 8 of the Amended Notice of Appeal. I will not expend precious judicial time on the question of whether or not leave ought to be sought before the Appellant can appeal against the Ruling of the trial Court on the No Case Submission delivered on the 23rd of February, 2018; this is because, there is clearly no appeal before this Court against the said Ruling; this therefore means, the Appellant cannot be allowed to shrewdly and ingeniously smuggle into this appeal that which is clearly against the Judgment of the trial Court delivered on 27th day of November 2018, that is to say an issue which was decided in the Ruling delivered on the 23rd of February, 2018. From the amended Notice of appeal, the Appellant did not give any indication that he intended lodging an appeal against the submission of no case subject of the Ruling delivered on the 23rd day of February, 2018, this fact is clearly decipherable from the face of the amended Notice of appeal.
It is clear from the Notice of appeal that the Appellant has not appealed against the Ruling of the trial Court on the No Case Submission delivered on the 23rd of February, 2018. Although the Appellant called on the trial Court to review the said Ruling on the ground that it was reached per incuriam, the learned trial Judge clearly refused that call. It perhaps would have made a difference if the Appellant had challenged the decision of the trial Court declining the call, where the learned trial Judge said “if indeed, as contended by the Defendant’s Counsel, that this Court’s decision on the petition in its Ruling was reached per incuriam, …To accede to Counsel’s request for a review of that decision in my view, is for this Court to make itself readily available to be goaded, starry-eyed to stray or veer-off dangerously into the excessive appellate domain of the Court of Appeal. No! I won’t take the bait.”
There is no appeal against the Ruling delivered on the 23rd of February, 2018, this failure renders the appeal against the Ruling grossly incompetent. See ACHI Vs. THE STATE (2010) LPELR-3586 (CA) Pg. 13-14, Paras. A – D. Therefore, where there is no appeal against the Ruling, the submission of No case cannot be made an issue in this appeal. Since there is no appeal against the said Ruling delivered on 23rd of February, 2018, issue formulated on same is incompetent. See EHIMIYEIN vs. THE STATE (2016) LPELR-40841 (SC) Pg. 31, Paras. C – F where the Supreme Court of Nigeria per NGWUTA, JSC held that:
“The statements credited to the appellant were objected to on the grounds that they were not voluntarily made. This led to a trial within trial to establish the voluntariness vel non of the making of the statements. After the trial, the Court ruled that the statements were voluntarily made by the appellant. Appellant did not appeal against the said ruling and he is estopped from raising the issue in his appeal…”
In the circumstances therefore, Issue one crafted from grounds of appeal 4, 7, and 8 is incompetent. Consequently, therefore Appellant’s Issue No. 1 as formulated and all the submissions made thereunder having been adjudged incompetent are hereby struck out. Premised on the foregoing reasons therefore, Appellants application is meritorious but the success does not completely extinguish the appeal, issues two and three are alive, valid and competent, I will now proceed to determine the surviving issues.
THE SUBSTANTIVE APPEAL
SUBMISSIONS OF COUNSEL FOR THE APPELLANT
ISSUES TWO AND THREE
Learned counsel for the Appellant sought to argue Issues No. 2 and 3 together. Counsel argued that the transactions between the Complainant and the Appellant were more of civil transactions; and that the nature, tenure and character of the relationship between them were nothing that tendered towards criminality before things went sour between them. Learned counsel contended that the four counts in the Amended Information reveal that certain amounts were sent to the Appellant by the complainant for investment; that virtually all the monies passed through the Appellant’s account with the Knowledge and consent of the complainant; and that without pretense, it was an open business known also to the Complainant’s friends and relatives. Counsel further submitted that there was no deception, no misrepresentation, and no forgery; and that the Appellant never denied that those sums passed through his account — which is the same account the Appellant was using to run his bread business and other legitimate businesses.
Learned counsel for the Appellant further submitted that the said funds were meant for sundry assignments, some of which the Appellant had completed and others were ongoing before the Complainant abruptly reported the Appellant to the Police at the Anti-Kidnapping Squad (AKS), Oyo State Police Command. Counsel referred to Exhibits J & J1 to submit that in the course of the investigation at Anti-Kidnapping Squad (AKS), Oyo State Police Command in Eleyele, Ibadan; the Appellant was, according to the Appellant’s counsel, “kidnapped” to the EFCC Zonal Office, Iyaganku, Ibadan. Learned counsel further submitted that Section 10(2) of the Administration of Criminal Justice Law of Oyo State, 2016 provides that a person shall not be arrested merely on civil wrong or breach of contract but that on the contrary, the learned trial Judge found that PW1 gave cogent and credible evidence that money were sent to the Defendant by the Complainant for specific projects which the Defendant fraudulently converted.
Learned counsel submitted that the learned trial Judge ignored Exhibits J & J1 which reveal that the Appellant was carrying out the errands he was sent as agreed with the Complainant and that Exhibit I could also avail the Appellant. Counsel contended further that assuming without conceding that the Appellant failed to fulfill some aspects of the agreement/contract as alleged, same would not have ripen to a crime to warrant the prosecution and subsequent sentencing of the Appellant for 24 years. Learned counsel argued that if the Complainant felt strongly aggrieved over the breach of Agreement, the best option for him would have been to institute a civil action against the Appellants for money had and received rather than using his connection with the Police and the EFCC to torment, harass, threaten, intimidate, persecute and dehumanize the Appellant. Counsel referred to ONAGORUWA Vs. STATE [1998] 1 ACLR 435 at 483 and DIAMOND BANK PLC vs. H.R.H. EZE (DR) PETER OPARA & ORS (2018) LPELR-43907 (SC) Pg. 78 at 93, Paras. A to submit that law enforcement agencies have been admonished to be circumspect in the Petitions forwarded to them.
Learned counsel further submitted that in the instant case, the EFCC hijacked the investigation even without notice to the Anti-kidnapping Squad (AKS), Oyo State Police Command as confirmed by the testimony of DW3 at pages 171 — 172 of the Records of Appeal. Counsel submitted that the matter was a civil one; that the multiplicity of complaints against the Appellant over the same matter to several law enforcement agencies was purposely to harass and intimidate the Appellant which is tantamount to abuse and nothing but impunity and unbridled show of excessive force and power by the EFCC as instigated by the Complainant. Learned counsel submitted that assuming the foregoing contentions are wrong; the Prosecution was far from proving the ingredients of stealing/conversion against the Appellant. counsel referred to the Amended Charge dated and filed on the 14th of February, 2018 as contained pages 131 — 132 of the Records of Appeal to submit that the trial Court is bound to rely and act on the said Amended Charge in which the Prosecution left out the detailed particulars of the money allegedly stolen by the Appellant; and that what the Respondents said therein is that the money was meant for investment.
Learned counsel referred toABACHA Vs. THE STATE [2002] 11 NWLR (Pt. 779) Pg. 447 to further submit that every Charge or an Indictment must be clear so that the person to be tried will understand the complaint against him; and that there is no need to speculate what is not on the face of the Charge or Indictment; but that in the instant case, it is through the testimonies of PW1 that the Respondents told tales of what the money was meant for. Counsel argued that the trial Court failed to properly appraise the Appellant’s Final Written Address filed before it; that PW1 testified that though the Petitioner resides abroad, he has a brother — Yakubu Enamali who lives in Port Harcourt who would stand for him and that the said Yakubu Enamali made a Statement; but neither the Complainant nor the said Yakubu Enamali testified at the trial.
Learned counsel further submitted that the statement said to have been made by Yakubu Enamali was never tendered in evidence nor was Counsel who wrote the Petition called as witness though PW1 said he spoke with him on the phone — and the learned trial Judge curiously belied this fact by the PW1 but chose to disbelieve DW1, DW2 and DW4 who gave evidence about the ill health of the Appellant through Exhibit H and that the Complainant who was abreast with the fact that the Appellant was sick gave his consent to the Appellant to spend part of the money with him at the time on his health. Counsel further submitted that the evidence of a fiduciary relationship between the Complainant and the Appellant was not hidden to the trial Court; and that the trial Court ought not to resort to pick and choose on the witnesses to believe or disbelieve. ADEGBITE Vs. THE STATE [2016] 12 SCM (Pt. 2) Pg. 1 was referred to by Counsel who further submitted that the evidence that the Appellant spent part of the money sent to him by the Complainant on his health upon the consent of the Complainant remains unchallenged and uncontroverted as the DW1, DW2 and DW3 were not cross-examined on these facts. Counsel referred to ANNABI Vs. STATE [2008] 13 NWLR (Pt. 1103) Pg. 179 and IWUNZE vs. FRN [2013] 1 NWLR to further submit that the evidence of DW1, DW2 and DW3 ought to be believed without more.
Learned counsel relied on GODSGIFT vs. THE STATE [2016] 12 SCM 424 to submit that any relevant evidence adduced in Court that has neither been successfully challenged nor contradicted becomes credible and reliable at the trial. Counsel further contended that conversion does not have a life of its own but it is parasitic on the offence of stealing; and that the Prosecution cannot be said to have proved anything considering that all the 4 (four) purported confessional statements of the Appellant were rejected as inadmissible by the trial Court and expunged from the proceedings. Learned counsel further referred to PATRICK Vs, THE STATE [2018] 4 SCM 174 at 194-195 to further submit that where a party does not agree with the testimony of any witness on a material fact, he should cross-examine the witness on those facts or at least show that he does not accept the evidence as true; and where he fails to do so, the Court can take his silence as an acceptance that he does not dispute the facts given in evidence.
Learned counsel for the Appellant further argued that the trial Court erred in relying onOSAREREN vs. FRN [2018] 10 NWLR (Pt. 1627) Pg. 221 as a template to convict and sentence the Appellant to 24 years imprisonment; and that the instant case is distinguishable from that case. Counsel referred toOKUNZUA vs. AMOSU [1992] 6 NWLR (Pt. 248) Pg. 435, Para. H; OTTIH vs. NWANEKWE [1990] 3 NWLR (Pt. 140) Pg. 550 at 562 and OPOLO vs. THE STATE [1977] 7 ANLR Pg. 312 at 317 and further submitted that the only way the Prosecution could have escaped the consequence of not calling vital witnesses who ought to have given material evidence is that there is proof that such evidence could not be produced by application of human diligence and knowledge; but that such efforts were not made by the Prosecutions nor was such evidence before the trial Court.
Learned counsel further submitted that although the trial Court rightly found that it is not mandatory for the Prosecution to have called a host of witnesses to prove its case, the Prosecution has a duty to call and examine all material witnesses whether or not their testimony would be favorable to the case or not. Counsel referred to STATE vs. AJIE [2000] FWLR (Pt. 16) Pg. 1831 and IGRI vs. STATE [2011] All FWLR (Pt. 563) Pg. 1063 to argue that where the testimony of a witness would be necessary to resolve an issue, as in the instant case, the Prosecution is obliged to call such a witness, even if the testimony would not be favorable to the case of the prosecution. Learned counsel submitted that the evidence of the Complainant herein or that of his delegated brother is fundamental; and that when Exhibits A, B & B1, C, D and F are removed, the Prosecution’s case becomes hollow. Counsel referred to BENEDOGI AWERE Vs. THE STATE [1986) 4 CA (Pt. II) Pg. 171 and ABDU vs. STATE [2016] 12 SCM (Pt. 2) 1 to submit that a Complainant who makes a report is a vital witness to clear the grey areas in the evidence before the Court; that in line with Section 138 of the Evidence Act, the Prosecution must prove ingredients of an offence beyond reasonable doubt; and that any doubt must be resolved in favor of the accused.
Learned counsel for the Appellant further argued that the Prosecution did shoddy or no investigations at all and failed to prove the case of stealing/conversion against the Appellant beyond reasonable doubt. Counsel referred to the evidence of DW3 at page 168 of the Records of Appeal to contend that the Complainant was just out to use the EFCC as a tool to witch-hunt the Appellant; and that the Appellant was forced to admit that Exhibit E which had been purchased about a year before the Appellant knew the Complainant is a proceed of crime. Learned counsel further submitted that the Prosecution failed to investigate Exhibits I, J & J1 which reveals that the Appellant had substantially complied with the agreement between him and the Complainant; and that the trial Court still found the evidence of PW1 as believable. Counsel referred to ALFRED AIGBADION vs. STATE [2000] 7 NWLR (Pt. 666) Pg. 686 to submit that a shoddy and pseudo investigation cannot grant a conviction; and that in the absence of a confessional statement, the evidence of the Prosecution may need to be corroborated.
Learned counsel for the Appellant referred to THE STATE Vs. GWANGWAN [2019] 9 SCM 253 at 280 and AHMED DEBS vs. CENICO (NIG) LTD (1986) 6 SC 187 to submit that doubt in the case of the Prosecution as to whether the Appellant secured the consent of the Complainant to spend part of his money on his ill health was not faulted or contradicted; that where there is need for further proof, a mere ipse dixit evidence may not be enough; and that the Prosecution in this case was far from proving the guilt of the Appellant beyond reasonable doubt. Counsel contended that the trial Court erred to have held Exhibits K and K1 as admission of fraud when the said Exhibits K and K1 are the offshoots of Exhibit G and G1 which have been expunged; and that whatever comes out of Exhibits K and K1 will amount to speculations. Learned counsel relied on IDOWU Vs. STATE [1998] 9 SCNJ 47 to submit that a conviction based on speculative findings cannot stand.
Learned counsel for the Appellant further referred to the testimony of PW1 at pages 114 — 115 of the Records of Appeal and the testimony of DW3 to submit that the EFCC did not carry out investigations; that Exhibits K and K1 did not state the total amount to be paid and as such it could be a product of coercion. Counsel argued that assuming, but not conceding that Exhibits K and K1 were voluntarily made and signed by the Appellant and Complainant, then the said Exhibits K and K1 amount to binding terms between them and nothing more; and that there is no evidence that the Appellant has reneged on those terms before the Complainant used the EFCC to persecute him. Counsel further submitted that the Appellant has paid the agreed sum twice within the agreed time; and that he only came to make the third installment when he was detained and taken to Court on the next working day without prior notice.
Learned counsel for the Appellant further referred to ONWUDIWE Vs. FRN 26 NSCQR Pg. 303-304 and Sections 383 and 385 of the Criminal Code to contend that it is in evidence that the Appellant did not in any way misrepresent himself to the Complaint; but that they had mutual trust and understanding of the transaction between them; and the Appellant knows the Complainant’s mother and other siblings. Counsel further submitted that to constitute stealing, the taking must be fraudulent and with the intention to deprive a person of his permanent ownership of the thing allegedly stolen; but that the Appellant herein had no such intention and that the Prosecution did not adduce evidence to the contrary. Learned counsel relied on OKORAJI Vs. THE STATE [2005] 1NCC 279 at 29; BABALOLA vs. THE STATE [1989] 4 NWLR (Pt. 115) Pg. 264 and ALAKE Vs. STATE [1991] 7 N WLR (Pt. 205) Pg. 567 at 593.
The Appellant’s counsel further submitted that the Prosecution and the trial Court lost sight of the fact that the Appellant and the Complainant had an informal agreement and as such the Appellant could not be charged for stealing the money unless the Agreement was in writing; that the Complainant must have made demands for payment of such money back; and that it is the failure of the Appellant to pay back the money within a reasonable period that can crystallize into his being charged for stealing/conversion. Counsel referred to the testimony of DW4 at page 176 of the Records of Appeal to submit that the oral and documentary evidence of the Appellant were not controverted and that the Appellant was arrested on the fictitious petition against him without proof that the Complainant ever demanded for the money in issue. Learned counsel further argued that Complainant and/or his representatives were shielded from the trial Court and that PW1, DW1, DW2 and DW4 were not there when the Complainant and the Appellant entered into the Agreement.
Learned counsel referred toSHEHU Vs. STATE [2010] 4 SCM 180 at 205 A — C to submit that the essential ingredients of the offence in a Charge must be proved beyond reasonable doubt. Counsel also relied on TAIWO BUCKNOR SMART Vs. THE STATE [1974) 11 SC 130 to submit that when an owner voluntarily parts with the possession and ownership of money; it is difficult to see how the offence of stealing can be maintained. Learned counsel relied on Section 362 of the Administration of Criminal Justice Law of Oyo State, 2016 to argue that the learned trial Judge erred in referring to the defense of the Appellant as an afterthought when the Prosecution did not lead any further evidence and when the learned trial Judge had rightly expunged all the purported confessional statements from the proceedings before the trial Court. Counsel further referred to SHODIYA Vs. STATE [1992] 3 NWLR (Pt. 230) 457 to submit that an accused person should not be convicted because the Court rightly or wrongly regards him as a liar; that what the Court should consider is whether the Prosecution has proved its case beyond reasonable doubt against the accused; and that the fact that an accused person lies does not ipso facto mean that he is guilty of the offence charged.
Learned counsel argued that the Appellant pleaded not guilty to the four Counts which ordinarily should have been rolled into a single count; and that in the absence of sufficient proof from the Prosecution, the trial Court ought to have discharged and acquitted the Appellant but that the trial Court sentenced him to 6 years for each Count amounting to 24 years of imprisonment even though to run concurrently. Counsel referred to Section 417 (1) 2 (a) & (b), 4 (f) & (g) of the Administration of Criminal Justice Law of Oyo State 2016 to further contend that the criminal justice system is aimed at reformation and not only punishment of offenders and that imprisonment should be the last option; and that the trial Court’s verdict was embellished with sentiments. Learned counsel urged this Court to allow the appeal.
SUBMISSIONS OF COUNSEL FOR THE RESPONDENT
Learned counsel for the Respondent referred to OYEBANJI Vs. THE STATE [2015] All FWLR (Pt. 800) Pg. 1256; UKANA vs. COP [1995] 9 NWLR (Pt. 416) Pg. 705 at 722 and FRN Vs. IKPE [2005] 2 QCCR 155 at 196 to submit that to establish the offence of stealing, the Prosecution must prove that the thing alleged to be stolen is capable of being stolen; that the accused person has the intention of permanently depriving the owner of the thing stolen; that the accused person was dishonest or fraudulent; and that he has unlawfully appropriated the thing stolen to his own use. Counsel further referred to the testimony of DW1 at page 155 & 156 of the Records of Appeal, the testimony of DW2 and DVV3 at page 169 of the Records of Appeal to submit that the evidence of the Appellant and his witnesses on record capture all the ingredients of the offence of stealing and that it is not in dispute that the various sums of money as stated in the Information belongs to the Complainant are capable of being stolen. Learned counsel further submitted that the trial Court rightly evaluated the uncontroverted evidence of PW1 and the Appellant’s witnesses as well as the Exhibits tendered before the Court to arrive at the conclusion at page 321 of the Records of Appeal that the Prosecution has proved all the necessary ingredients of the offence against the Appellant.
Learned counsel for the Respondent further referred to the testimony of DW2 at page 163 of the Records of Appeal as well as the findings of the trial Court at page 319 of the Records of Appeal and submitted that the salient and cogent facts contained in PW1’s testimonies and the documentary exhibits were never controverted on cross-examination; and that the entire evidence of the Prosecution Witnesses were never controverted or challenged, as such they are deemed as admitted by the Appellant. Counsel referred to BROWN Vs. DUNN [1893] QR 67 and OFORLETE vs. STATE [2000] 12 NWLR (Pt. 681) Pg. 45 at 436 to contend that a party who fails to cross-examine will not be permitted to re-introduce the evidence in examination-in-chief. Learned counsel further referred to PIUS vs. STATE [2015] All FWLR (Pt. 780) Pg. 1270 and GAJI vs. PAYE [2003] 8 NWLR (Pt. 823) Pg. 583 to submit that evidence elicited during the cross-examination of a witness has the same probative value and is as valid and authentic as the evidence gotten during examination-in-chief.
Learned counsel referred to the finding of the trial Judge at page 320 as well as OYEBANJI vs. THE STATE (Supra) at Pg. 1282 & 1286 to urge this Court to dismiss this appeal and resolve this issue in favor of the Respondent. Counsel further argued that the contentions of the Appellant with respect to Exhibit A has no foundation in law; that the absence of seal and stamp only makes it voidable and not void or a nullity; that the Appellant did not object to the admission of the said Exhibit A; and that the Appellant cannot at this stage on appeal raise objection to the admissibility of the said Exhibit A. Learned counsel relied on SANI vs. KSHA [2019] 4 NWLR (Pt. 1661) Pg. 172; LAWAL vs. STATE [1966] NMLR 343 and BLESSING vs. FRN [2015] 13 NWLR (Pt. 1475) Pg. 1 and further submitted that the Respondent’s statutory duty to cause an investigation is not dependent on the seal of the legal practitioner that made or authored such petition. Counsel referred to Sections 6 and 7 of the Economic and Financial Crimes Commission (Establishment) Act, 2004 and submitted also that Rule 10 of the Rules of Professional Conduct for Legal Practitioners did not envisage or list complaints or petitions to security agencies.
Learned counsel for the Respondent further referred to FAWEHINMI Vs. IGP [2000] 7 NWLR (Pt. 665) Pg. 481 at 523 to submit that investigation of crime is wide in scope and divergent in its methods; and that it would be difficult for the Court to assume the role of supervising the Police in crime detection and investigation. Counsel cited FRN Vs. SANI [2015] All FWLR (Pt. 765) Pg. 1832 at 1863-1864; OLATINWO vs. STATE [2013] 8 NWLR (Pt. 1355) Pg. 126 at 141; KALU Vs. FRN [2014] 1 NWLR (Pt.1389) Pg. 479 at 543-544; and AJAYI Vs. STATE [2013] 2-3 MJSC (Pt. 1) Pg. 59 at 72-73 to contend that the Respondent does not need a formal complaint before it can validly carry out investigations and interrogations in line with its statutory duties. Learned counsel further submitted that, with respect to the Appellant’s contention that the transaction between the Appellant and the Complaint is a civil transaction; the facts of this case are clearly that the monies were sent to the Appellant to execute specific projects but same was converted by the Appellant for his personal use.
Learned counsel cited OBAMANU vs. GEORGEWELL [2018] All FWLR (Pt. 957) Pg. 867; MR. STEVE ISOKARIARI vs. EFCC & ANOR: CA/PH/FHR/151/2018 Delivered on the 10th of December, 2018 and OYEBANJI Vs. THE STATE (Supra) at Pg. 1276 to submit that the learned trial Judge was right in his conclusion at pages 318 — 319 of the Records of Appeal. Counsel further argued that with regards to the absence of the Complainant/Victim who is based in the United Kingdom during the trial; it is not in all cases that the testimony of the Complainant/Victim will be mandatory before the Prosecution can prove its case. Leaned counsel referred to NWAEZE vs. STATE [1996] 2 NWLR (Pt. 428) Pg. 1 at 6; NWANKWO vs. FRN [2003] 4 NWLR (Pt. 809) Pg. 1 at 32 & 94; OSARENREN vs. FRN [2018] 10 NWLR (Pt. 1627) Pg. 221 at 247-248 and DARLINTON Vs. FRN [2018] 11 NWLR (Pt. 1629) Pg. 152 at 165 to further submit that what is required of the Prosecution is to prove its case against the Appellant beyond reasonable doubt; and that the law does not recommend that category of number of witnesses that the Prosecution must call before proving its case and that the learned trial Judge rightly captured this issue at pages 312-313 of the Records of Appeal.
Learned counsel further relied on ADEYEMO vs. STATE [2015] 16 NWLR (Pt. 1485) Pg. 311 at 325; BUSARI Vs. STATE [2015] All FWLR (Pt. 777) Pg. 715 at 734; NIGERIAN AIR FORCE vs. OBIOSA [2003] 4 NWLR (Pt. 810) Pg. 233 at 276; INUSA SAIDU vs. STATE [1982] 4 SC Pg. 41 at 66-69 and OHUYON vs. STATE [1996] NWLR (Pt. 346) Pg. 264 at 273-274 to submit that the Appellant is only at liberty to call whichever witness he desires to testify on his behalf and to prove his case, but that the Appellant cannot dictate to the Prosecution whom to call as witness. Counsel further referred to ISHAYA vs STATE [2019] 4 NWLR (Pt. 1661) Pg. 76 and UZIM vs. STATE [2019) 14 NWLR (Pt. 1639) Pg. 419 at 441-442 to submit that if the Appellant felt so strongly that certain witnesses ought to be called, he was at liberty to make the appropriate application before the trial Court, but that the Appellant failed to do so. Learned counsel further submitted that Exhibits K and K1 which the Appellant has castigated the trial Court for relying upon was tendered by the Appellant himself; counsel referred to page 177 of the Records of Appeal and cited YOYE Vs. OLUBODE & ORS (1973) NSCC Vol. 9 Pg. 409 at 414 to submit that the Appellant cannot be allowed in law to attack on appeal the documents he tendered by himself at the trial Court.
Learned counsel for the Respondent further referred to page 169 of the Records of Appeal ADEBOYE vs. BAJE [2016] All FWLR (Pt. 845) pg. 79; ONYENGE vs. EBERE [2004] 13 NWLR (Pt. 899) Pg. 20; EFCC vs. ELIZABETH [2016] All FWLR (Pt. 844) Pg. 2165; LAWAL vs. STATE [2017] All FWLR (Pt. 904) Pg. 1234, Paras. B — D and the decision of the trial Court at pages 320— 321 of the Records of Appeal to submit that admission of a party against his own interest is the most appropriate evidence in favor of his opponent; and that an aggregate evaluation of the evidence of the Appellant especially as regards spending the monies sent to him with the victim’s consent was clearly an afterthought to pull a wool over the eyes of the trial Court. Counsel referred to QUEEN Vs. NWAFOR ORIZU & ANOR 14 WACA 455 at 457 and EBEINWE vs. STATE [2011] All FWLR (Pt. 566) Pg. 413 at 427 to submit that stealing is a fraudulent taking or conversion, if done with, in the case of money, the intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.
In response to arguments of the Appellant in relation to the sentence passed by the trial Court; learned counsel for the Respondent relied on IHEANACHO Vs. EJIOGU [1995) 4 NWLR (Pt. 389) Pg. 324 and LORI vs. AKUKALIA [1998] 12 NWLR (Pt. 579) Pg. 592 to submit that those arguments were raised out of nowhere and cannot be founded on any of the Grounds of Appeal and as such therefore incompetent in law and liable to be struck out. Learned counsel further referred to ISANG vs. THE STATE [1996] 9 NWLR (Pt. 473) Pg. 458 to submit that the power of a trial Judge to impose a sentence is a discretionary power which must be exercised judicially and judiciously; and that such was the case in this instance. Counsel further relied on ADEYEYE vs. THE STATE [1968] 1 All NLR Pg. 239 at 240 to contend that appellate Courts ought not interfere with the discretion of the trial Court when duly exercised. Learned counsel further argued that the trial Court was right in imposing the sentence imposed in the instant case considering the circumstances under which the Appellant betrayed the trust reposed in him.
Learned counsel further referred to UZOLOKE vs. THE STATE [1965] NMLR 125 and DAVID Vs. COP [2019] 2 NWLR (Pt. 1655) Pg, 178 at 190 to submit that the trial Court’s discretion was lawfully exercised and that a sentence can only be excessive if it is more than or in excess of the term allowed by law which is not the case here. Counsel referred to OMOKUWAJO Vs. FRN [2013] 9 NWLR (Pt. 1359) Pg. 300 and NWUDE Vs. FRN [2016] 5 NWLR (Pt. 1506) Pg. 471 to submit that the Appellant has the task of establishing that the sentence imposed by the trial Court violated some law or occasioned any injustice. Learned counsel further relied on EZEUKO vs. STATE [2016] 6 NWLR (Pt. 1509) Pg. 529; FRN vs. SANNI [2014] 16 NWLR (Pt. 1433) Pg. 299; JOSEPH OKPALAEKE vs. NATIONAL ELECTRIC POWER AUTHORITY [2003] 14 NWLR (Pt. 840) Pg. 383; AGWARANBO VS. NARANDE (2000) 9 NWLR (pt 572) pg 342 at 349 and Section 16 of the Court of Appeal Act to urge this Court to evaluate Exhibits B, B1, C and D which were expunged by the trial Court.
Learned counsel referred to GBADAMOSI Vs. STATE [1992] 11/12/SCNJ 269 and UWAEKWEGHINYA vs. STATE [2005] All FWLR (Pt. 259) Pg. 1911 at 1930 to further argue that a confessional statement must be positive, direct and unequivocal in admitting and acknowledging the commission of an offence by the accused who made it; that Exhibits B, B1 C and D were wrongly expunged by the trial Court; that the said Statements are not confessional statements as such; but that they are replete with defenses or explanations from the Appellant as regards the facts of this case and the learned trial Judge ought not to have expunged the said Exhibits B, B1, C and D. Counsel further relied on OSAKWE vs. FCE (TECHNOLOGY) ASABA & ORS [2010] 2-3 SC Pg. 158 at 182; CHIEF OKPOZO vs. BENDEL NEWSPAPER COPR. [1995] NWLR (Pt. 153) Pg. 652 at 661-663 and OGUNTOYINBO vs. FRN (2018) LPELR-45218 (CA) to submit that the admissibility of evidence in criminal trials is regulated by the Evidence Act; that the trial Court is bound by the decision in OGUNTOYINBO Vs. FRN (Supra); and that the reliance of the trial Court on CHARLES Vs. FRN [2018] 13 NWLR (Pt. 1635) Pg. 50 and Section 18 of the Administration of Criminal Justice Law of Oyo State, 2016 needs to be re-evaluated.
Learned counsel further referred to IKE Vs. STATE OF LAGOS (2019) LPELR 47712 (CA) and NNEOYI ITAM ENANG vs. STATE – CA/C/231C/2018 Delivered on the 18th of October, 2019 to further reiterate that the Evidence Act has been held in more recent decisions to be the Act that regulates the admissibility of evidence and thus takes precedence over the ACJA and ACJL in matters of admissibility of evidence. Counsel further referred to PAUL Vs. STATE [2019] 12 NWLR (Pt. 1685) Pg. 54 at 76 and GBADAMOSI vs. STATE [1992] 9 NWLR (Pt. 266) Pg. 465 to contend that the law is now firmly settled that a statement wrongly admitted as a confessional statement and found not to be so does not become obsolete as same can be taken as an ordinary statement and relied upon by the Court. Learned counsel relied on ONWUDIWE Vs. FRN (Supra) and DIBIE Vs. THE STATE [2007] 9 NWLR (Pt. 1038) Pg. 30 to submit that the contentions of the Appellant cannot stand in the face of the obvious facts against the Appellant. Learned Counsel for the Respondent urged this Court to dismiss this appeal.
APPELLANT’S REPLY
Learned counsel for the Appellant in the Reply Brief filed in this appeal referred to DIAMOND BANK vs. OKPALA & ORS [2016] 7 (Pt. 2) SCM Pg. 119 at 128, Paras. A — F to argue that the Appellant’s Issue No. 3 is tied to Grounds 6 and 8 of the Amended Notice of Appeal and that failure of the Appellant to clearly indicate so is mere inelegance which does not render the issue void. Counsel further referred to NNPC vs. CLIFCO NIGERIA LTD [2011] 4 SCM Pg. 194 at 216, Paras. C — D to submit that having failed to file a Cross-Appeal the Respondent cannot complain about any aspect of the Judgment. Learned counsel also relied on MANTEC WATER TREATMENT NIG. LTD vs. PETROLEUM (SPECIAL) TRUST FUND [2008] All FWLR (Pt. 439) Pg. 499 CA and Section 122 of the Evidence Act to contend that the Respondent cannot rely on unreported cases without attaching the CTC of such judgments. Counsel urged this Court to discountenance the authorities relied upon by the Respondent and allow this appeal.
RESOLUTION
The Judgment subject of this appeal is at pages 266 — 323 of the Records of Appeal; I have carefully read same as well as the submissions of the respective counsel for the parties and the issues formulated and argued in their respective briefs of argument, It appears that the surviving issues in the Appellant’s Brief as well as the sole issue formulated by the Respondent can be collapsed into a single issue as it appears from their submissions that the main issue this Court is invited to resolve by the contending parties is: “Whether from the entirety of evidence before it, the trial Court was right in convicting and sentencing the Appellant for the offence of stealing as charged.”
The first leg of the series of submissions by the Appellant is that the transactions between the Complainant and the Appellant were more of civil transactions; that the nature, tenure and character of the relationship between them were nothing tending to disclose criminality before things went sour between them; that the four counts in the Amended Information reveal that certain amounts were sent to the Appellant by the complainant for investment; that virtually all the monies passed through the Appellant’s account with the knowledge and consent of the complainant; that without pretense, it was an open business and that there was no deception, no misrepresentation, and no forgery; and that the said funds were meant for sundry assignments, some of which the Appellant had completed and others were ongoing before the Complainant abruptly reported the Appellant to the Police. The Appellant further argued that the Administration of Criminal Justice Law of Oyo State, 2016 provides that a person shall not be arrested merely on civil wrong or breach of contract that if the complaint felt strongly aggrieved over the breach of Agreement, the best option for him would have been to institute a civil action against the Appellants for money had and received rather than using his connection with the Police and the EFCC to torment, harass, threaten, intimidate, persecute and dehumanize the Appellant.
However, the learned trial Judge made certain findings which deflated the foregoing contentions of the Appellant and which have not been impeached. The learned trial Judge at pages 317 of the Records of Appeal, found as follows:
“First the Defendant and his witnesses admitted that, they were aware, that the Complainant was sending money to the Defendant for the execution of some projects for him. They all gave in chief and admitted in cross-examination that, after the Defendant was arrested by men of the Anti-Kidnapping Squad, the Defendant and the Complainant’s family executed an Agreement to resolve the matter, it was for refund of money in restitution of the money sent by the Cpmplainant to the Defendant. The Defendant tendered the said Agreement, an Undertaking dated 18/05/2017 and Terms of Settlement which were admitted in Evidence as Exhibits K and K1 respectively.”
The learned trial Judge then proceeded to reproduce Exhibit K which was signed by the Appellant wherein it was clearly admitted by him that: “I OLADAIPO, OLUTOPE of the above address brought the Sum of N300,000 = (Three Hundred part of my monthly commitment to Yusuf Lawal in the case that I am involved in…” As can be seen clearly therein in Exhibit tendered by the Appellant, he admitted being involved in a case of stealing. The learned trial Judge further found as follows at pages 318 — 391 of the Record of Appeal:
“Lest I forget, the Defendant’s Counsel in his issue three contended that, a breach of agreement cannot ripe into criminality. With due respect to Counsel, it seems to me that, he labored under a mistaken belief that, all that transpired between the Complainant and the defendant was merely contractual. No, the PW1 gave cogent and credible evidence that, money was sent to the Defendant by the Complainant for specific projects which the Defendant fraudulently converted to his personal use,…
The DW1, DW2, DW3 and the Defendant admitted that the Defendant instead of executing the above projects, spent the money on his failing health. I am of the view that, the mere fact that, the Defendant later executed Exhibits K and K1 to refund the money to the Complainant would not have the effect of changing the colour of the case from what it is to a breach of a Contractual Agreement. Counsel’s contention viewed against Exhibit K, where the Defendant admission of involvement in the case of stealing pales into insignificance. I hereby resolve the issue against the Defendant.”
I absolutely agree with the foregoing findings of the learned trial Judge. I am of the view that even if the money sent to the Appellant were sent pursuant to a commercial or contractual transaction, it does not take away the fact that the money is a thing capable of being stolen. In this case, the Appellant, as found by the learned trial Judge at page 320 of the Records of Appeal “has admitted the fraudulent conversion of parts of the money sent to him by the Complainant for investment in the above projects. His own witnesses the DW2 and DW3 admitted that, money was sent to him for those projects which he failed to execute but spent part thereof on his health.” The learned trial Judge had earlier aptly stated at page 296 of the Records of Appeal as follows:
“As noted at dawn of this Judgment, the Defendant is being faced with a four count of stealing contrary to Section 390 (9) of the Criminal Code, Cap 38, Laws of Oyo State 2000, it provides:
390. “Any person who steals anything capable of being stolen is guilty of felony, and is liable if no other punishment is provided to imprisonment for three years.
(9) if the thing stolen is of the value one thousand naira or upwards, the offender is liable to imprisonment for seven years.
As rightly pointed out by the Defendant’s Counsel, Section 283 (1) [Sic] of the Criminal Code, Cap 38, Laws of Oyo State defines the offence of stealing in the following words:
383 (1) “A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing.”
From the said provisions of the law under which the four counts for which the Appellant was charged were created, the sums of money the Appellant was alleged to have stolen exceeded one thousand naira, and such amount is surely capable of being stolen. Therefore the contention of the Appellant that the transaction between him and the Complainant is contractual has no basis as there is no provision in the law that money emanating from a commercial or contractual transaction is incapable of being stolen. See ABREFERA Vs. FRN (2018) LPELR-44274 (CA) Pg. 14-19, Paras. F – E and AYENI vs. THE STATE (2016) LPELR-40105 (SC) Pg. 12, Paras. A — B where the Supreme Court considered Section 383 (i) of the Criminal Code Law of Ondo State 1978 which is in pari materia with the provisions of Section 383 (1) of the Criminal Code, Cap 38 Laws of Oyo State 2000 as reproduced above; the Supreme Court further at Pg. 33-35, Paras. D — C per NWEZE, JSC held that:
“…A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents: … (f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to pay the amount to the owner… (3) The taking or conversion may be fraudulent, although it is effected without secrecy or concealment…”
I disagree with the submissions of learned Counsel for the Appellant that the transactions between the Complainant and the Appellant were more of civil transactions. It is worth reiterating that even the Administration of Criminal Justice Law of Oyo State, 2016 which the Appellant relied on to argue that a person shall not be arrested merely on civil wrong or breach of contract cannot be construed to suggest that money exchanged under a civil transaction or contract is incapable of being stolen or that where there is evidence of stealing in the course of a civil transaction or contractual transaction, it should be treated as a civil wrong rather that what it is.
The Appellant further contended in this appeal that the learned trial Judge ignored Exhibits J & J1 which reveal that the Appellant was carrying out the errands he was sent as agreed with the Complainant. The Appellant at page 183 of the Records of Appeal stated that: “Part of the money he sent to me was fencing of four plots of land. Exhibits ‘J’ and ‘J1’ are receipts for payment of Blocks and cement, I bought them to fence the land for the nominal complainant…” In addition to what I have earlier stated, the fact that the Appellant purchased some blocks and cement through Exhibits J and J1 in partial fulfillment of the purposes for which the Complainant sent him money does not exculpate the Appellant from being capable of stealing the money sent to him by the Complainant.
The Appellant also argued that PW1 testified that though the Petitioner resides abroad, he has a brother— Yakubu Enamali who lives in Port Harcourt who would stand for him and that the said Yakubu Enamali made a Statement; but neither the Complainant nor the said Yakubu Enamali testified at the trial. The Appellant contended further that the Statement made by Yakubu Enamali was never tendered in evidence nor was Counsel who wrote the Petition called as witness; that the only way the Prosecution could have escaped the consequence of not calling vital witnesses who ought to have given material evidence is that there is proof that such evidence could not be produced by application of human diligence and knowledge; that although the trial Court rightly found that it is not mandatory for the Prosecution to have called a host of witnesses to prove its case, the Prosecution has a duty to call and examine all material witnesses whether or not their testimony would be favorable to the case; that in the instant case, the evidence of the Complainant herein or that of his delegated brother is fundamental; and that a Complainant who makes a report is a vital witness to clear the grey areas in the evidence before the Court.
The foregoing contentions of the Appellant were indeed made before the trial Court, and the trial Court made findings thereon as can be found at pages 311 — 313 of the Records of Appeal where the learned trial Judge held as follows: “… the prosecution, earlier noted did not field a host of witnesses, it only called and relied on the evidence of its sole witness; the PW1, Idris Isa – a member of the quartet that investigated the matter… It first must be established that, the evidence of a single witness may ground a conviction.. In the instant case, what is important is the quality of the evidence led by the Prosecution through its sole witness; the PW1, if the evidence of the Ione witness is found to be cogent and credible providing the required proof of the commission of the offence of stealing against the Defendant, then so be it.” The learned trial Judge then posed the question on the effect of Respondent’s failure to call the Cornplainant as witness and then answered the question relying on OSAREREN Vs. FRN (2018) 10 NWLR (Pt. 1627) Pg. 221 at 247-248 and then concluded that: “In the circumstance, I am of the view that, the failure of the prosecution to field the victim/complainant, who, by the evidence before me is based in the United Kingdom is not fatal to the Prosecution’s case, in his absence, the prosecution can discharge the onus of proof placed on its shoulders through other route.”
The foregoing finding of the learned trial Judge has not been faulted; yet the Appellant merely repeated the issue which has already been determined by the trial Judge without pointing out the error in the reasoning and decision of the trial Court on the issue. It has been long settled that the Judgment against which an appeal is brought is presumed to be correct until the Appellant otherwise satisfies the Appeal Court that it is wrong and ought to be set aside. See FAWEHINMI vs. NBA & ORS (No. 1) [1989] 2 NWLR (Pt. 105) 494; (1989) LPELR-1260 (SC) Pg. 29, Paras. B – D and NNPC vs. FAMFA OIL LTD [2009] 12 NWLR (Pt. 1156) 462; (2009) LPELR-2023 (SC) Pg. 12, Paras. B – D. That notwithstanding, the Court aptly stated the position of the law; the Prosecution does not have to call a particular witness, the evidence of a sole witness may be sufficient to prove conviction where that sole witness gives evidence that proves the offence beyond reasonable doubt. See: SIMEON Vs. THE STATE (2018) LPELR-44388 (SC) Pg. 30, Paras. A – E where my law lord, KEKERE-EKUN, JSC held as follows:
“… It is also settled that the prosecution is not required to call a host of witnesses to prove its case beyond reasonable doubt. The evidence of a single witness, if believed, is sufficient to ground a conviction… What is important is not the number but the quality of the evidence of the witness(es) called. Once the prosecution is able to produce credible and convincing evidence to the commission of the offence by the accused person beyond reasonable doubt, the onus is discharged.”
See: also AYENI vs. THE STATE (2016) LPELR-40105 (SC) Pg. 27, Paras. A – D; OCHANI vs. THE STATE (2017) LPELR-42352 (SC) Pg. 31, Paras. B – F; IKENNE vs. THE STATE (2018) LPELR-44695 (SC) Pg. 15, Paras. C- F and IDAGU vs. THE STATE (2018) LPELR-44343 (SC), Pg. 47-491 Paras. D – A, where the Supreme Court per my Lord AUGIE, JSC held that:
“A vital witness is a witness, whose evidence may determine the case one way or the other, and failure to call him is fatal to the Prosecution’s case… But the Prosecution is entitled to call witnesses it considers relevant to its case. It is not bound to call an eye witness or every person present at the scene of the crime to testify in order to discharge the burden placed on it to prove its case beyond reasonable doubt. …Once it discharges the burden to prove its case beyond reasonable doubt, it does not matter that a particular witness was not called to give evidence. At any rate, where an accused feels strongly that the evidence of particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit down and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own. If the Appellant needed the evidence of the first deceased’s wife, whom he blamed for the incident, there is nothing in the statute books that hinders him from calling her as his defence witness. But he cannot be heard to complain or quarrel with the Prosecution for not calling her as a witness.”
In the instant case which borders on stealing, the Prosecution, in my view does not necessarily have to call the Complainant as a witness. See: ADEJOBI & ANOR vs. THE STATE (2011) LPELR-97 (SC) Pg. 29 Paras. D – E where my Lord GALADIMA, JSC held that: “…ownership, no doubt, is a most vital and indispensable essential ingredient of the offence of stealing. There must be evidence that the property is owned by a person. That person could be known or unknown but the property must be capable of being owned.” In this case, there is evidence before the trial Court that the money alleged to have been stolen and for which the Appellant was convicted is owned by the Complaint; the evidence given by PW1 on one hand and the Appellant as well as his other witnesses on the other hand support the fact that the Complainant owned the money in issue and sent same to the Appellant and that the Appellant converted same to his own use. Therefore, in my view failure to call the complainant as a witness is not fatal to the case of the prosecution, the conclusion reached by the learned trial Judge on this issue is therefore unimpeachable.
The Appellant’s contention that he used the Complainant’s money with the consent of the complaint also lacks semblance of credibility. It is trite that it is the learned trial Judge who has the duty to evaluate and ascribe probative value to the evidence of witnesses being the one who had the opportunity of seeing and hearing the witnesses. See TUKUR Vs. UBA & ORS (2012) LPELR-9337 (SC), Pg. 45, Paras. B – E; UBA PLC vs. J.l. EFEMINI & SONS (2018) LPELR 44150 (CA), Pg. 19-20, Paras. C – C and MAMUDA vs. STATE (2019) LPELR-46343 (SC), Pg, 15-16, Paras. F — B. The learned trial Judge at page 320 of the Records of Appeal held as follows:
“I do not believe the DW1, DW2 and the Defendant himself that, he had the consent of the Complainant to spend part of his money on the Defendant’s health. They all gave evidence that, the Complainant gave his consent to the Defendant during a Telephone conversation, he who asserts must prove, the Defendant, in my view ought to have done more to prove that he spent the Complainant’s money with his consent, he could, in my view, have applied for a transcript of the conversation from his Telephone company. Again, the conduct of the complainant in reporting the matter to the Police, in rejecting the land offered by the defendant’s father-in-law in Shagamu and in escalating the matter to the EFCC when he was disenchanted with the Police handling the matter are most inconsistent with the acts of a consensual man.”
I am in total agreement with the learned trial Judge that, the Appellant who put up the defense that he had the Complainant’s consent to spend his money ought to have done more to prove that he spent the Complainant’s money with his consent; and that the conduct of the Complainant in reporting the matter to the Police, in rejecting the land offered by the defendant’s father-in-law in Shagamu and in escalating the matter to the EFCC when he was disenchanted with the Police handling the matter are most inconsistent with the acts of a consensual man. More so, as held by the Supreme Court inIDAGU Vs. THE STATE (Supra), where an accused feels strongly that the evidence of particular witness is vital or essential to his defence, he is at liberty to call the witness in his defence. He should not sit down and wait for the Prosecution to call the witness since the Prosecution is not expected to also conduct the case for the defence as well as its own.
The Appellant having failed to convince the Court that he spent the Complainant’s money with the consent of the said Complainant by doing the needful which may have included applying to have the Complainant subpoenaed as Witness cannot be heard to complain that the Prosecution failed to call the Complainant as a witness. After all, the Appellant considered the DW3 as a vital witness to his defence and did apply for DW3 to be subpoenaed; he could have done same with respect to the Appellant but he failed to do so, thus he cannot be heard to complain that the absence of Complainant as a witness is fatal to the case of the prosecution. The circumstantial evidence before the Court clearly negates the possibility of any consent from the Complainant and the learned trial Judge rightly made that inference. It is trite that the guilt of an accused may be proved by his confessional statement; the evidence of eye witness(es); and/or circumstantial evidence: and any or a combination of these means is sufficient to establish the guilt of the accused when proved beyond reasonable doubt. See:ITU vs. THE STATE (2016) LPELR-26063 (SC), Pg. 26, Paras. B – C; TAIYE vs. THE STATE (2018) LPELR-44466 (SC), Pg. 36-37, Paras. A – B; AKIBU vs. THE STATE (2019) LPELR-47630 (SC), Pg. 13, Paras. B – F and SAMINU vs. THE STATE (2019) LPELR-47622 (SC), Pg. 14, Paras. A – E.
The Appellant further attacked the Judgment of the trial Court on the ground that the trial Court erred having held Exhibits K and K1 as admission of fraud when the said Exhibits K and K1 are the offshoots of Exhibit G and G1 which have been expunged; that the said Exhibits K and K1 amount to binding terms between them and nothing more; and that there is no evidence that the Appellant has reneged on those terms before the Complainant used the EFCC to persecute him; that to constitute stealing, the taking must be fraudulent and with the intention to deprive a person of his permanent ownership of the thing allegedly stolen; but that the Appellant herein had no such intention and that the Prosecution did not adduce evidence to the contrary; and that the Appellant could not be charged for stealing the money unless the Agreement was in writing; that the Complainant must have made demands for payment of such money back; and that it is the failure of the Appellant to pay back the money within a reasonable period that can crystallize into his being charged for stealing/conversion.
The learned Counsel for the Appellant, apparently misconceived the elements of the offence of stealing especially with respect to money. The Appellant was charged for the offence of stealing, Section 390 (9) of the Criminal Code Law, Cap 38 Laws of Oyo State 2000 provides that: “Any person who steals anything capable of being stolen is guilty of felony, and is liable if no other punishment is provided to imprisonment for three years. (9) if the thing stolen is of the value one thousand naira or upwards, the offender is liable to imprisonment for seven years.” This law is in pari materia with Section 390 of the Criminal Code Law of Lagos State, C17 Laws. of Lagos State which was considered by my law lord, KEKERE-EKUN, JSC in AMAH vs. FRN (2019) LPELR-46347 (SC), Pg. 39-41 Paras. A – D, where the Court held that:
“ln counts 5 and 6 of the information, the appellant is charged with stealing by fraudulent conversion contrary to Section 383 (2) (f), 385 and 390 of the Criminal Code Law of Lagos State, Cap, C17 Laws of Lagos State of Nigeria. Section 383 (1) and (2) (f).385 and 390 of the Law provide:… 390. Any person who steals anything capable of being stolen is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for three years.
It has been held that in the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it. …
The ingredients of the offence of stealing are:
(i) Ownership of the thing stolen;
(ii) That the thing stolen is capable of being stolen;
(iii) The fraudulent taking or conversion. …”
In the instant case, the ownership of the money sent to the Appellant and alleged to have been stolen was clearly established from the evidence of all the witnesses, there is no scintilla of doubt that the money belongs to the Complainant. Also, the fact that the said sums of money are capable of being stolen is not in dispute. The point the Appellant seems to be banking on is that the taking or conversion was not fraudulent. However, the Appellant’s case is replete with the undisputed fact that the Appellant converted some money belonging to the Complainant to take care of his own ill health. In AMAH Vs. FRN (Supra), the Supreme Court made reference to Section 383(1) & (2)(f) of the Criminal Code Law of Lagos State, C17 Laws of Lagos State which is in pari materia with the Criminal Code, Cap 38, Laws of Oyo State 2000 under which the Appellant was charged which provides as follows: “383 (1) A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. (2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following intents: (f) in the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.”
In the instant case, by the Appellant’s own admission, he converted some of the money sent to him by the Complainant for specific projects into his own personal use, that is for his ill health, this is deemed in law to have been done fraudulently even if he intends to return same. I already reproduced the findings of the lower Court at pages 317 — 319 of the Records of Appeal. The learned trial Judge found that
“First the Defendant and his witnesses admitted that, they were aware, that the Complainant was sending money to the Defendant for the execution of some projects for him… the PW1 gave cogent and credible evidence that money was sent to the Defendant by the Complainant for specific projects which the Defendant fraudulently converted to his personal use. The DW1, DW2, DW3 and the Defendant admitted that the Defendant instead of executing the above projects, spent the money on his failing health.”
In my humble view therefore, the Appellant has nothing useful to urge this Court against the decision of the lower Court. From the foregoing findings of the lower Court, the trial Court has not in my humble understanding erred in its findings and inference drawn from the evidence, circumstances, and the materials before the Court, which support the basis of the circumstantial evidence. In UGWU & ANOR vs. THE STATE [1972) 1 SC (Reprint) 89 (1972) LPELR-3327 (SC), Pg. 6, Paras. C – D, COKER JSC held as follows: “it is not being said that every shred of evidence does by itself point to the guilt of complicity of the appellant; but the force of circumstantial evidence lies in the unmistakable aim of the totality of evidence which by an undersigned coincidence points in that direction.” Also in AMOS Vs. THE STATE (2018) LPELR-44694 (SC), Pg. 47-49, Paras. C — B my Law lord of the Supreme Court of Nigeria PETER-ODILI, JSC held as follows and I quote:
“What is available in this case as a method to establish the culpability of the appellant is circumstantial evidence which can in certain situations be stronger than even an eye witness account. It is such that when the different pieces of evidence are taken all together, there is this tie leading to the irresistible and compelling conclusion that the crime was committed and by no other than the accused. It can take on such a logical reading with the precision of mathematics that leaves no room for any other conjecturing possibility than that the crime for which the accused appellant was charged was committed by him and could not have been done by another…”
The entire circumstances ranging from the admissions by the Appellant in Exhibits K and K1 to the evidence of PW1 and the DW1 — DW3 as well as the allegations in the Petition to the EFCC — Exhibit A all point to the fact that the Appellant converted the money sent to him by the Complainant for specific projects into his own personal use without the consent of the Complainant. The learned trial Judge was therefore right having found at page 321 of the Records of Appeal that:
“…the Prosecution has led cogent, direct and credible evidence through the PW1 and has proved all the necessary and vital ingredients of the offence of stealing against the Defendant beyond reasonable doubt. The Prosecution has proved through the PW1 the ownership of the money stolen, that the money stolen is capable of being stolen and the fraudulent taking and conversion of the money sent to the Defendant by the Complainant to invest for him but which the Defendant spent on his health. So contrary to the Defendant’s Counsel, the fraudulent intent of the Defendant was established. The Defendant through his evidence and the evidences of his witnesses also strengthened the case of the Prosecution by his admission by conduct and the admission that he spent the money on his health.”
From all I said therefore, this sole issue must be resolved in favor of the Respondent against the Appellant, it is so resolved. Having resolved this issue against he Appellant therefore, I must at once hold that the appeal is bereft of merit and therefore deserves to be dismissed, it is so dismissed. The Judgment of the lower Court delivered by OWOLABI, J. on the 27th day of November, 2018 in charge No: 1/16EFCC/2017, is hereby affirmed.
FATIMA OMORO AKINBAMI, J.C.A.: I had the privilege of reading in advance, the lead judgment of learned brother TIJJANI ABUBAKAR, JCA. I agree with his reasoning and conclusion therein. I adopt same as mine.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, TIJJANI ABUBAKAR, JCA where the facts giving rise to this appeal and the issues in contention have been well encapsulated and articulated. I agree with my learned brother’s reasoning and his conclusion that this appeal is bereft of Merit. I also dismiss the appeal and affirm the judgment of the lower Court delivered by OWOLABI, J. on the 27th day of November, 2018 in charge No: 1/16EFCC/2017.
Appearances:
Adeyemi Giwa, Esq. with him, Lanre Ajayi, Esq. and O. O. Onifade, Esq.
For Appellant(s)
Ifeanyi Agwu, Esq. with him, S. M. Galadanci, Esq. For Respondent(s)
