Chyfrank Nigeria V. Federal Republic Of Nigeria (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Lagos State, the appellant and its Managing Director, Frank Amah, were arraigned on a six -count charge for the offences of (a) Conspiracy to obtain money by false pretences; (b) obtaining money by false pretences and (c) stealing.
Following their plea of not guilty, the matter went to trial. The Prosecution called fourteen witnesses. It, also, tendered seven five exhibits. At the close of the Prosecution’s case, the defendants made a No-case submission. On October 14, 2009, the Court (hereinafter, simply, referred to as “the trial Court”), upheld the No Case Submission. Accordingly, the Court acquitted and discharged Mr Amah and the appellant on all the counts.
Dissatisfied with the trial Court’s decision, the respondent appealed to the Court of Appeal, Lagos Division. In its judgement of February 27, 2015, the Court, (hereinafter, simply, referred to as “the lower Court”), first, upheld the trial
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Court’s decision as it relates to the offences of Conspiracy to obtain by false pretences and obtaining by false pretences. It, (the lower Court), however, disagreed with the trial Court on the offence of stealing. It held that a prima facie case of stealing had been established by the respondents against the appellants at the trial Court. In effect, it held that the respondent had established a prima facie case of stealing against the appellants. It remitted the matter to the Chief Judge of Lagos State for re-assignment to another Judge of that Court.
The appellants have, therefore, approached this Court to set aside the decision of the lower Court. Effectively, therefore, this appeal is circumscribed to the lower Court’s decision that relates to the offence of stealing. The appellants submitted four issues for the determination of this appeal. On its part, the respondent formulated only two issues for the determination of this appeal.
On my part, I take the view that, since, as shown above, this appeal is circumscribed to the lower Court’s decision as it relates to the offence of stealing, only issue one is
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determinative of this appeal, that is, whether the lower Court, rightly, found that the respondent had established a prima facie case of stealing against the appellants Before returning to this sole issue, a background to this appeal will not be out of place.
FACTUAL BACKGROUND
Sometime in 2005, Frank Amah, the Managing Director of the appellant, approached Mrs Julie Adinuba, (who later testified as PW8 in the proceedings), to assist with the sale of certain items of property of the Federal Government of Nigeria. These items of property were located at Ikoyi, Lagos State. As proof of authority to sell the said items of property, Frank Amah handed over letters of allocation from the Federal Government Implementation Committee to the PW8.
On her own, the PW8 approached Gordon Omoegbedi, (PW7), to assist with investigation and confirmation of the genuineness of the allocation letters. Incidentally, PW7 is an Estate Surveyor and Valuer. The allocation letters were confirmed to be genuine.
Later, PW8 approached Donatus Duru (the complainant who
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testified as PW3). PW3 indicated interest in the property covered by the Allocation Letters, that is, the property at No 7 Bell Avenue, Ikoyi, Lagos, a property allocated to one Alhaji Mallam. PW3, upon confirmation of the genuineness of the letter, agreed to purchase the said property for 190,000,000 (One Hundred and Ninety Million Naira) after negotiation with the appellant’s Managing Director.
So soon after the conclusion of the transaction, the Federal Government cancelled the sale of Government Houses in Ikoyi. The names of the allottees, who were affected, were published. Promptly, Alhaji Abubakar Mallam, PW4, wrote petitions to various government agencies. He alleged that someone had, without his authority, used his name to buy a Federal Government property in Ikoyi. The EFCC, upon conclusion, filed the above charges against the appellant and its Managing Director, Frank Amah.
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S ARGUMENT
Whether the lower Court, rightly, found that the respondent had established a prima facie case of stealing against the appellants
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When this appeal came up for hearing on October 24, 2018, Chukwuka Ikwuazom, learned counsel for the appellant, adopted the brief filed on February 10, 2018. He pointed out that Counts 5 and 6, relating to the offence of stealing, accuse the appellant and its Managing Director of stealing the sums of 86,900,000 and 7,900,000, property of Donatus Dunu (PW3). He noted that the said counts did not allege that the sums converted were the property of Alhaji Abubakar Mallam.
He pointed out that the sums, allegedly, converted formed part of the sum of 102,400,000 paid by PW3 as part payment for the purchase of the property at No 7 Bell Avenue, Ikoyi, the balance of the purchase price having also been paid in two installments directly to the Federal Government Implementation Committee.
He submitted that that the lower Court erred when it held that the respondent adduced prima facie evidence of stealing by conversion against the appellant. He opined that an essential ingredient of stealing, namely, lack of consent was,
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conspicuously, non-existent. He referred to pages 21 23 of the record for the lower Court’s erroneous reasoning.
Counsel cited C. O. Okonkwo, Okonkwo and Naish, Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd, 1980) 290; Edo and Anor v Commissioner of Police [1962] 1 NSCC 92; Ejuren v COP (1961) 1 All NLR 478.
He noted that, in the instant appeal, it is not in dispute that PW3, voluntarily, parted with the sum of 102,400,000 which he paid by draft into the appellant’s bank account and from which the appellant is alleged to have stolen the sums of 86,900,000 and 7,900,000. It was his further submission that, in making the payment, PW3 was consciously and voluntarily divesting himself of the ownership and possession of the money for all time even if he thought he was making the payment to the appellant as an agent of Alhaji Abubakar Mallam.
He pointed out that, to the extent that the property, allegedly, stolen from PW3 [Donatus Duru] was voluntarily relinquished by PW3 to the appellant, no prima facie case of stealing was established against the appellant. The lower Court’s decision is, therefore, un-sustainable.<br< p=””
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RESPONDENT’S ARGUMENTS
On his part, S. K. Atteh, counsel for the respondent, adopted the brief filed on June 25, 2018, although, deemed filed on October 24, 2018. He noted that Counts 5 and 6, the counts relating to stealing, are on pages 3 and 4 of the record.
He cited the essential elements of stealing,Babalola v State [1989] 4 NWLR (pt 115) 264; Onwudiwe v FRN [2006] 10 NWLR (pt 988) 382; Adejobi v State [2011] 12 NWLR (pt 1261) 347; Oyebanji v State (2015) LPELR -24751 (SC). He expatiated on these ingredients from paragraph 3.4 3.34, pages 7 17 of the brief. He urged the Court to affirm the lower Court’s findings that the appellant had a case to answer in respect of Counts 5 and 6. The appellant’s Reply Brief advanced reasons why the respondent’s arguments are misconceived.
RESOLUTION OF THE ISSUE
At pages 1020 1022 of the record, the trial Court dealt with Counts 5 and 6. According to the Court:
Under Section 383 (1) of the Criminal Code, the fraudulent taking of money from someone is stealing and the fraudulent conversion of money to the use of the taker or to the use of any other person is also
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stealing. The taking or conversion must be fraudulent.
Dealing with goods in a manner inconsistent with the right of the true owner amounts to a conversion provided that it is also established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right, Adeniji v State [1994] 8 NWLR (pt 36) 587…
The evidence before this Court is that, after the initial negotiations for the purchase of the property, No. 7, Bell Avenue Ikoyi, PW3 called in his lawyer, PW1, to verify the allocation and Alhaji Abubakar Mallam, the allottee whose name he said made him show interest in the property. It was after PW1, (that is, the lawyer), confirmed to PW3 that he has done his due diligence and everything was alright that PW3 arranged for the Bank Cheques. Under cross examination, PW3 said if his lawyer had not told him to go ahead, he would not have gone ahead. His lawyer came back and told him everything was genuine.
At pages. 11 12 of the transcript of the proceedings of 27th September, 2007, PW1 said:
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…Then my client asked me again, as part of my investigation, I confirmed it in respect of Abubakar Mallam and the Company. I confirmed them and he immediately raised a cheque. He raised a cheque of N190 million to Zenith Bank Enu Owa Street, Idumagbo Lagos, instructing them to raise three bank cheques’
Two of the drafts, subject of Counts 5 and 6, were raised in favour of the Implementation Committee and were paid to the Committee by PW1. At page 24 of the transcript of the proceedings of 17th October, 2007, PW1 stated from fine 19:
‘The three drafts were handed over to me and like I said on 2nd and 3rd (sic) 2005, I went to Abuja and paid to the respective parties. One, the N80.3million to the Implementation Committee, the N7.3 million to the Implementation Committee and N102.4 million to ChyFrank Nigeria Limited.
In respect of the Implementation Committee, on payment, they issued me receipts acknowledging payment of the said amount. The two receipt, one for N80.3 million and the other one, N7.3 million, they issued me receipts, that is, two receipts.'<br< p=””
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When the allocation was cancelled by the Federal Government, PW1 went to the Implementation Committee and collected the refunds. Exhibits P14 and P15 are the evidence of the refunds.
It is clear that PW1 was the actual person who was entrusted with the payment of the Bank Cheques to the Implementation Committee. The principal witness for the Prosecution, PW1, never said that the defendants were at any time given or entrusted with the Bank Cheques subject of Counts 5 and 6.
…What is important and relevant is that the two Bank Cheques in question were never given or entrusted to the defendants, the proceeds of the bank cheques were never paid into defendants’ accounts and converted.
There is no evidence even if believed upon which the Court can make a finding that the defendants stole 86,900,000 and 7,900,000, subject of Counts 5 and 6. [Italics supplied for emphasis]
Against the above background, the trial Court concluded that “it is my conclusion that no prima facie case is established by the Prosecution in any of the Counts sufficient to call on the defendants to enter their defence.”
[pages 1020 1022 of the record.]
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On appeal, the lower Court held that the trial Court “misunderstood the issues in contention,” page 1445 of the record. According to the lower Court the “evidence led by the Prosecution against the respondents on these counts is clear enough and certainly require some explanations from the respondents,” page 1445. Accordingly, it [the lower Court] held that the Prosecution established a prima facie case of stealing against the respondents in Counts five and six of the Information.
As it is well-known, a submission that there is no case to answer may be properly made and upheld in the following circumstances: (a) when there has been no evidence to prove an essential element in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it, Ibeziako v. Commissioner of Police (1963) 1 All NLR 61; (1963) NNLR 88; [1963] 1 SCNLR 99; Ajidagba and Ors v. I.G.P. (1958) 3 FSC 5; [1958] SCNLR 60;
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Okoro v. The State [1988] 5 NWLR (pt. 94) 255; Adeyemi v. The State [1991] 6 NWLR (pt. 195) 1; Sher Singh v. Jitendranathsen (1931) L.R. 59 CAL 275; Ajiboye and Anor v. The State [1995] 8 NWLR (pt 414) 408; (1995) LPELR 300 (SC) 8.
As shown above, this appeal is circumscribed to the lower Court’s decision that relates to the offence of stealing. Now, it is well-settled that to sustain a charge of stealing against an accused person, the prosecution must prove: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused was dishonest and (d) that the accused had unlawfully appropriated the thing stolen to his own use, Otti v. The State [1997] 1 NWLR (pt 207) 103, 118; Muhammed v The State [2000] FWLR (pt 30) 2623, 2626.
In Ayeni v State (2016) LPELR 40105 (SC) 18; D -E, this Court, upon setting out the provision of Section 383 (1) of the Criminal Code, explained that:
“The drafts person of the Code proceeds to outline the mental element or the requisite intent [that is, what is known in English law as ‘mens rea) of the offence in
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Subsections (2) (3) and (4) in these words:
(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: (a) an intent permanently to deprive the owner of the thing of it; (b) an intent permanently deprive any person who any special property In the thing of such property; (c) an intent to use the thing as a pledge or security; (d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform; (e) intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion; (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. (3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment. (4) 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.
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It is also immaterial that the person who converts the property is holder of a power of attorney for the disposition of it, or it is authorised to dispose of the property.
Case law has condensed the above requirements into the following ingredients only.; namely, (i) that the thing stolen is being capable of being stolen; (ii) that the accused person has the intention of permanently depriving the owner of the things stolen; (iii) that he was dishonest and (iv) that he had unlawfully appropriated the thing stolen to his own use, Oyebanji v. State (2015) LPELR – 24751 (SC) 16 -17; Mohammed v. The State [2000] FWLR (pt.30) 2623, 2626; Adejobi v. The State [2011] 12 NWLR (pt 1261) 347, 377: Oshinye v. COP [1960] 5 SC 105; Chianugo v. The State [2002] 2 NWLR (pt. 750) 225.” Per Nweze, JSC (pages 33-35; D C).
Like Case law, writers are ad idem on the six intents in Section 383 of the Code, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Ed) (Ibadan: Spectrum Books Ltd, 1992) 291; O. Bamgbose and S.
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Akinbiyi, Criminal Law in Nigeria (Ibadan: Evans Brothers (Nigeria Publishers) Ltd, 2015) 230 et seq; Oshioye v Commissioner of Police [1960] 5 SC 105; Chianugo v State [2002] 2 NWLR (pt 750) 225; Adejobi v. State (2011) LPELR-97(SC); R. v. Ninedays (1959) 4 FSC 792; Onimisi Ukana (alias Jaguda) v COP, Benue State [1995] 9 NWLR (pt 416) 705, 722; Smart v The State [1974] 11 SC 173; Clark and Anor. v. The State [1986] 4 NWLR (pt.35) 381; Babalola and Ors v. The State [1989] 4 NWLR. (pt. 115) 264; Alake and Anor v. The State [1991] 7 NWLR (pt. 205) 567, 593; Ekuma v COP (1963) 1 All NLR 285; The Queen v. Nwankwo (1962) 1 All NLR 64; R. v Williams (1953) 37 Cr. App. R. 71; Eze v State [1992] 7 NWLR (pt. 251) 75; Onagoruwa v The State [1993] 7 NWLR (pt. 303) 49, 91.
However, as Tobi, JSC pointed out in Onwudiwe v FRN [2006] 4 SC (pt II) 70:
Although the disjunctive conjunction ‘or’ is not used at the end of each of the sub-items of Section 383 (2), it is the meaning of the subsection that an offence of stealing is committed if any of the conducts of the sub-items of Section 383 (2) is committed.
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In other words, it is not the meaning of Section 383(2) that all the sub-items in Section 383 (2) must be present before an offence of stealing is committed. This is clear from the following opening words of Section 383(2): ‘if he does so with any of the following intents:’ As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently.
Appellant’s counsel was, therefore, right in his submission at paragraph 5, page 4 of the Reply Brief, that “Section 383 (2) of the Criminal Code sets out six intents, any one of which may ground the offence of stealing. Of the six intents, the only one relevant for our purpose is Section 383 (2) (a) which refers to ‘an intent permanently to deprive the owner of the thing of [the property taken or converted],” [emphasis supplied by counsel].
Against the above background, I turn to the submission of the appellant’s counsel at paragraph 5 of the Reply brief. In his submission a submission I find very formidable “of
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the six intents [in Section 383 (2) (a), supra], the only one relevant for our purpose is Section 383 (2) (a) which refers to ‘an intent permanently to deprive the owner of the thing of [the property taken or converted)”‘ [emphasis by counsel]
At paragraph 9 of the said brief, he submitted, and there is considerable potency in that submission, that “In order to determine whether there was fraudulent intent for stealing, the test is what was the intent of the defendant at the time of the taking or conversion, R v Ninedays [1959] 4 FSC 192. Accordingly, the question that arises in this appeal… is whether at the time PW3 paid the money to the appellant, the appellant had any intent to permanently deprive PW3 of the money. The answer to this question must be in the negative. Clearly, at the time the appellant received the money, there was no intent to deprive PW3 of it, since, to all intents and purposes, the property at No 7 Bell Avenue, Ikoyi, was to be transferred to PW3, and was indeed transferred to him before the allocations were revoked by the Federal Government.”
I entertain no doubt that this submission is unanswerable.
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The evidence at the trial Court bears out the truth of this submission. I am, therefore, constrained to return to the evidence volunteered at the trial Court. As, already shown above, at page 1020 1022 of the record, the trial Court took time to chart the trajectory of the case. Listen to this, once more:
The evidence before this Court is that, after the initial negotiations for the purchase of the property, No. 7, Bell Avenue Ikoyi, PW3 called in his lawyer, PW1, to verify the allocation and Alhaji Abubakar Mallam, the allottee whose name he said made him show interest in the property. It was after PW1, (that is, the lawyer), confirmed to PW3 that he has done his due diligence and everything was alright that PW3 arranged for the Bank Cheques. Under cross examination, PW3 said if his lawyer had not told him to go ahead, he would not have gone ahead. His lawyer came back and told him everything was genuine.
At pages 11 12 of the transcripts of the proceedings of 27th September, 2007, PW1 said:
…’then my client asked me again, as part of my investigation, I confirmed it in respect of Abubakar
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Mallam and the Company. I confirmed them and he immediately raised a cheque. He raised a cheque of 190 million to Zenith Bank Enu Owa Street, Idumagbo Lagos, instructing them to raise three bank cheques’
Two of the drafts, subject of Counts 5 and 6, were raised in favour of the Implementation Committee and were paid to the Committee by PW1. At page 24 of the transcript of the proceedings of 17th October, 2007, PW1 stated from line 19:
`The three drafts were handed over to me and like I said on 2nd and 3rd (sic) 2005, I went to Abuja and paid to the respective parties. One, the 80.3 million to the Implementation Committee, the 7.3 million to the Implementation Committee and 102.4 million to ChyFrank Nigeria Limited.
In respect of the Implementation Committee, on payment, they issued me receipts acknowledging payment of the said amount. The two receipts, one for 80.3 million and the other one, 7.3 million, they issued me receipts, that is, two receipts.’
When the allocation was cancelled by the Federal Government, PW1 went to the implementation Committee and collected the refunds. Exhibits P14 and
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P15 are the evidence of the refunds.
It is clear that PW1 was the actual person who was entrusted with the payment of the Bank Cheques to the Implementation Committee. The principal witness for the Prosecution, PW1, never said that the defendants were at any time given or entrusted with the Bank Cheques subject of Counts 5 and 6.
…What is important and relevant is that the two Bank Cheques in question were never given or entrusted to the defendants, the proceeds of the bank cheques were never paid into defendants’ accounts and converted.
There is no evidence even if believed upon which the Court can make a finding that the defendants stole 86,900,000 and 7,900,000.00, subject of Counts 5 and 6. [Italics supplied for emphasis]
I, entirely, agree with these findings that there is no evidence, even if believed, upon which the Court could have made a finding that the appellants stole 86,900,000 and 7,900,000. 00, subject of Counts 5 and 6, Oshinye v Commissioner of Police (supra); Chianugo v State (supra); Adejobi v. State (supra); R. v. Ninedays (supra); Onimisi Ukana (alias Jaguda) v COP, Benue State (supra);
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Smart v. The State (supra); Clark and Anor. v. The State (supra); Babalola and Ors v The State (supra); Alake and Anor v. The State (supra); Ekuma v COP (supra); The Queen v. Nwankwo (supra); R. v Williams (supra); Eze v State (supra); Onagoruwa v The State (supra).
Put differently, the Prosecution did not succeed in establishing an essential element in Section 383 (2) (a) (supra), that is, ‘an intent permanently to deprive the owner of the thing of it,’Oyebanji v. State (2015) LPELR – 24751 (SC) 16 -17; Mohammed v. The State [2000] FWLR (pt.30) 2623, 2626; Adejobi v. The State [2011] 12 NWLR (pt 1261) 347, 377: Oshiriye v. COP [1960] 5 SC 105; Chianugo v. The State [2002] 2 NWLR (pt. 750) 225.
In the circumstance, I am left with no choice than to set aside the judgment of the lower Court and restore the findings and ruling of the trial Court. Appeal allowed. I hereby enter an order setting aside the judgement of the lower Court. In its place, I uphold the findings and conclusion of the trial Court [Obadina, J]. Appeal allowed.
SC.566/2016
