Julius Bayode Ayeni V. The State (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment)

The Appellant; Julius Bayode Ayeni, was charged before the Ekiti State High Court on a two count charge of stealing. The first count alleged that he stole ten (10) metric tons of graded Cocoa valued at One Million, One Hundred and Eighty Thousand Naira (N1,180,000:00) Only, the property of Co-operative Multipurpose Union, Ikole-Ekiti in Ekiti State sometimes in November, 1997.

The second count alleged that sometimes in 1996 at Ikole-Ekiti in the Ikole-Ekiti Judiciaf Division of Ekiti State, he stole the sum of One Million, Two Hundred Thousand Naira (N1,200,000:00) only, the properly of Co-operative Multipurpose Union, Ikole-Ekiti. The offences are said to be contrary to and punishable under Sections 390(a) and 390(9) of the Criminal Code Law, Cap.30, Volume II, Laws of Ondo State of Nigeria as applicable to Ekiti State.

At the trial, the prosecution called four (4) witnesses and tendered some exhibits which included the statement of the Appellant made to the police in the course of the investigation. The Appellant on his part gave evidence as the D.W.1 and tendered some exhibits marked as Exhibit D, E, F and G. He did not call any other witness. The gist of the Respondent’s case against the Appellant is that the Appellant was the Manager of the Egbeoba Co-operative Union, which deals in collecting money from certain organizations to purchase graded Cocoa for such organizations. That the Union collected N1,180,000:00 from Cooperative Cocoa Product, Akure as the cost of ten tons of Cocoa and that the Cocoa was duly purchased by the Union.

It was then alleged that the Appellant was mandated to convey and deliver the Cocoa produce to the Co-operative Cocoa Product, Akure but without the consent or knowledge of the Union, the Appellant failed to deliver same to the Co-operative at Akure but sold same to a certain Black Arrow Ventures and failed to account for the proceeds. The Appellant denied stealing the ten (10) tons of graded cocoa and stated that he only sold the produce to the Black Arrow Ventures when the Co-operative Cocoa Product, Akure refused to take delivery due to fall in the price of cocoa. That he did so on the instruction of the President of the Egbeoba Multipurpose Co-Operative Union, Ikole, one Mr. Aroso.

At the conclusion of the trial, the learned trial Judge, D.O. Jegede, J, disbelieved the testimony of the Appellant and proceeded to convict him on the 1st count of stealing the ten tons of graded Cocoa, property of the Egbeoba Multipurpose Co-operative Union, Ikole. The learned trial Judge however found that no evidence was adduced in respect of the 2nd count of stealing N1,200,000:00 and consequently discharged and acquitted the Appellant on it. The Appellant is dissatisfied with the judgment of the lower court and has now appealed to this court vide Notice of Appeal dated the 10th day of October, 2007 and filed the same day. The Grounds of Appeal as contained in the said Notice of Appeal, but without their particulars are as follows:

1. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment when it is clear that the Accused/Appellant was charged before the court under a wrong law or non existing law and this led to a miscarriage of justice.
2. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment when his evidence adduced in defence of the charge of stealing was never challenged or controverted by way of cross-examination and this led to a miscarriage of justice.
3. The trial court is biased against the Accused/Appellant when he convicted and sentenced the Accused/Appellant to three (3) years imprisonment and this led to a miscarriage of justice.
4. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment without using his discretion judicially and judiciously to give an option of a fine and this led to a miscarriage of justice.
5. The sentence passed on the Accused/Appellant on conviction is harsh and excessive being a first offender.
6. The decision of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence adduced before the court.

In compliance with the rules and practice of this court, the parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument which is settled by S.A Longe Esq. of counsel is dated the 10th day of November, 2008 and filed the 11th November, 2008. The Appellant also filed a Reply Brief dated and filed the 2nd March, 2011. In the said Appellant’s Brief of Argument, three (3) issues were distilled for the determination of this court from the six (6) Grounds of Appeal. These issues are as follows:

(A) Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment when it is patent that the accused was charged to court under a wrong law or a non-existing law.

(B) Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment without an option of a fine when it is clear that the Appellant is a first offender.

(C) Whether by the evidence adduced before the trial court, has the offence of stealing against the Appellant been proved by the prosecution more so that the evidence of the Appellant in defence of the charge was not challenged or controverted by the prosecution by way of cross-examination.

The Respondent also filed a Brief of Argument dated the 17th February, 2011 and filed the 18th of February, 2011. It was deemed filed on the 21st February, 2011 by order of this Court granted on the said 21/02/2011 vide Motion on Notice dated the 17/02/2011 and filed the 18/02/2011. In the said Respondent’s Brief of Argument, three (3) issues were also formulated for determination as follows:

(a) whether the Appellant was charged under a wrong law or non-existing law so as to vitiate the trial.

(b) Whether prosecution proved the charge of stealing against the appellant beyond reasonable doubt.

(c) Whether the trial court was right in convicting and sentencing the Appellant without an option of fine.