Julius Bayode Ayeni V. The State (2016)
LAWGLOBAL HUB Lead Judgment Report
KUMAI BAYANG AKA’AHS J.S.C.
The Appellant was charged before the Ekiti State High Court, lkole Ekiti on a two count charge of stealing which was amended. The amended charge read as follows:_
COUNT ONE: STATEMENT OF OFFENCE
STEALING, contrary to Section 390(a) of the Criminal Code Law Cap. 30 Vol. 11 Laws of Ondo State of Nigeria 1978 as applicable in Ekiti State.
PARTICULARS OF OFFENCE
Julius Bayode Ayeni (M) sometime in November, 1997 at Ikole Ekiti in lkole judicial Division did steal ten (10) metric tonnes of graded cocoa valued at about one million, one hundred and eighty thousand Naira (N1,180,000.00) property of Cooperative Multipurpose lkole Ekiti.
COUNT TWO: STATEMENT OF OFFENCE
STEALING, contrary to Section 390(a) of the Criminal Code Law Cap.30 Vol. Laws of Ondo State of Nigeria 1978 as applicable an Ekiti State.
PARTICULARS OF OFFENCE
Julius Bayode Ayeni (M) sometimes in 1996 at Ikote Ekiti did steal the sum of One Million, two hundred thousand Naria (N1,200,000.00) property of Co-operative Multipurpose Union lkole Ekiti.
1
On 14th February, 2005, the accused/appellant was arraigned before the Ekiti state High Court in Ikole Ekiti and he pleaded not guilty to the amended charge. The prosecution called four witnesses and the accused/appellants statement was admitted as Exhibit ‘A’. The appellant testified in person and tendered some letters which were received in evidence as Exhibits “D” “E” “F” and “G”. He did not call any person to testify on his behalf. At the conclusion of evidence the parties filed written addresses. On 25th September 2007 judgment was delivered by the Ekiti State High Court. The accused was found guilty of stealing on the 1st count and sentenced to three years imprisonment without an option of fine. He was however acquitted and discharged on the 2nd count.
Aggrieved by this decision, the Appellant appealed to Court of Appeal, Ado-Ekiti which dismissed the appeal on the 7th July, 2011 in appeal No. CA/AE/C27/2010.
The Appellant was further dissatisfied with the judgment of the Court of Appeal Ado-Ekiti (hereinafter referred to as the “lower Court” or Court below) and appealed on the omnibus ground the Notice of Appeal dated 22nd July, 2011. An amended Notice of appeal containing
2 two grounds of appeal was later filed with leave of this Court. It was deemed filed on 26th March, 2014.
From the two grounds in the Amended Notice the appellant formulated a lone issue for determination namely:-”Whether the learned Justices of the Court of Appeal were right in affirming the conviction of the appellant by the learned trial Judge when the prosecution failed to prove the case against theappellant beyond reasonable doubt as required by Section 138 of the Evidence Act”
The respondent adopted the issue as formulated by the appellant.
Arguing the appeal learned Counsel for the appellant contended that from the totality of the evidence proffered at the trial, the prosecution failed to prove the offence of stealing against the appellant beyond reasonable doubt and that the evidence showed clearly that the appellant was carrying out his assignment as a manager when the allegation of stealing was leveled against him. He argued that there was no iota of evidence to show that the appellant had any fraudulent Intention deprive his employers of the proceeds of the business; on the contrary the evidence of the prosecution witnesses only showed
3
wrong judgement on the part of the appellant. Since he had authority to buy and sell cocoa for the Union, it was based on that implied authority that he dealt with Black Arrow Ventures by selling the contentious ten (10) tons of cocoa to that Company after the Co-operative Cocoa Company Akure had refused to take delivery because of the fall in the price of cocoa. He submitted that if the evidence adduced by the prosecution suggests only a possibility and not a certainty that the accused committed the offence, he must be discharged or given the benefit of the doubt relying on Solomon Ogunshowobo and Ors v. l. G. P . {1958} WRNLR 29.
Learned counsel for the respondent enumerated the elements that constitute stealing namely taking, conversion and fraudulent intention and submitted that the prosecution succeed in establishing the three elements of the offence by the evidence of eye witnesses pointing to the evidence of PW 1, PW 2 and PW 3.
Learned counsel for the appellant has maintained that the concurrent findings of both the lower Court and the Court of first instance that the prosecution proved its case against the appellant beyond reasonable doubt is perverse
4 and therefore should be set aside.
PW1, PW2 and PW3 testified that the Co-operative Cocoa Company Akure paid N1,180,000.00 to the Egbeoba Multipurpose Co-operative Union lkole Ekiti for 10 metric tonnes of cocoa at the rate of N1,180,000.00 per ton. The Cooperative Union shared out the money to its agents who bought the commodity and took it to the premises of the union. There it was graded and the appellant who was the Manager of the Union was mandated to deliver the cocoa to the Company. The Union was not aware that the appellant did not deliver the cocoa as instructed until some staff of the Company complained to the Union two weeks later. PW1 was sent to Akure to find out what happened and he confirmed the non delivery of the cocoa. The Management of the Union summoned the guarantors of the appellant. At that time the appellant was nowhere to be found. The case was reported to the Police. This led to the detention of the guarantors and they had to fish the appellant out of his hideout. When the appellant surfaced, he admitted stealing the cocoa and later refunded N150,000.00 out of the money and gave an undertaking to pay back the balance. The appellant
5 testified as DW1 and this is what he said:-
” Later we started another operative and we collected money from Co-op for ten tons of cocoa which was disbursed to our Trade Secretaries and private buyers……When the cocoa was gathered the Co-op that gave us advance for the ten tons was equally not willing to carry the cocoa because of the drop in the agreed price. But the representative of Black Arrow who had been our customer was willing to buy at profit margin. The cocoa was sold to the company as approved by the President. The Black Arrows did not pay fully for the l0 tonnes but paid first the sum of N150.000.00 which was paid to the Union.”
Earlier PW3 who was the Chairman of Egbeoba Co-operative Union denied under cross-examination that one Aroso was the President at the time of the incident and maintained that he was the President. While admitting that the prices of cocoa do fluctuate he denied the suggestion made to him that the appellant had the authority to look for an alternative buyer even if the price of cocoa dropped and he received clear directive that he was to deliver the cocoa to those who had deposited money with the Co-operative
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union.
The learned trial Judge evaluated the evidence adduced at the trial and found that at all times material to this case the accused person was the manager of the complainant, the Egbe-Oba Co-operative Cocoa Union and the Co-operative Cocoa Products Akure one of the customers of the Union ordered for 10 metric tonnes of Cocoa in 1997 which they paid for by cheque in the sum of N1,180,000.00 which was cashed and the money was distributed among some of their Secretaries who used the money to purchase the ten tons of cocoa. The cocoa was graded and the accused was asked to deliver same to the Co-op Akure who had paid for it. The accused however did not deliver the cocoa to the Co-op Akure as directed but instead sold it to Black Arrow Ventures and disappeared with the proceeds until his sureties were apprehended after which he surfaced. He found that the prosecution had made out a case of fraudulent conversion of the cocoa by the accused and disbelieved the defence put up by him.
Learned counsel for the appellant submitted before this Court as he did in the Court below that the prosecution did not prove the offence of stealing against the appellant
7 beyond reasonable doubt.
The evaluation in the Court of trial can be seen at pages 78-81 of the records where the learned trial Judge stated:-
“It is no longer congesture (sic) that the accused was authorised to take possession of the cocoa and as well he was given the instruction to deliver same to Co-op Akure. But according to the evidence of the accused person himself, both in his extra judicial statement exhibit A and in his oral testimony before this Court, he sold the whole 10 metric tonnes to either one Segun Fatoki or Black Arrow Ventures.According to him it was his own uncle, one Chief Olajide Awe who pressurised him to sell to Black Arrow Ventures Limited or segun Fatoki its agent who showed him some dollars, which he asked Fatoki to change to the Nigerian currency. The most astonishing thing is the fact that he sold this cocoa to Fatoki or Black Arrow Ventures, none of whom he himself knew and he even sold it on credit. When his sin found him, having fled after the fraudulent sale of the product to a party other than Co op Akure, he voluntarily gave undertakings to pay the value of the goods to the owners, the Union. See exhibits B1, B2 and by
8 exhibits C1 and C2 he made a part payment of, the sum of N150,000.00 as confirmation of the voluntariness of the undertakings he gave to the police. I am of the opinion that the accused did not give these voluntary undertakings without admitting his guilt. With all these established facts this Court accepts that the prosecution has proved its case against the accused.”
The learned trial Judge then considered the defence put forward by the accused:-
“According to the accused, he sold the Cocoa to Black Arrow Ventures with the knowledge of the President of the Union and tried to give a reason for doing so. The accused also made some efforts to say that it was not the first time that the Union was dealing with Black Arrows ventures And this time around, he sold the cocoa to Black Arrow because the Co-op Akure complained of a fall in price of cocoa. Straight away this Court will say it finds it difficult to be persuaded by these reasons given by the accused person who acted contrary to the instruction that he was given. Firstly, it is not true that the accused sold the cocoa to whoever he sold it with the consent of any of the Presidents mentioned, either by him or by
9 the Prosecution or with the knowledge of the Union’s Management. No one need be taken aback as to why the accused said that he obtained the consent of Aroso, who he claimed falsely to be the president of the Union at that material time. Aroso had died and so it was easier for him to say it was Aroso who gave him a counter instruction to that of the management because no one can call a dead man to come to Court to give evidence. This Court cannot be taken in by such half-clever falsehood. There are enough facts on the record that have proved that indeed PW3 was the President at the material time…………………………………………..”However, common sense dictates that if he sold the cocoa to someone else at the instance of any of the presidents mentioned, he would not have fled after the failure of the transaction. But I also bear In mind that none ofPW1, PW2 and pW3 who were all part of the Union or part of the Union Management knew who Segun Fatoki or the Black arrow was. I am emboldened in this opinion by the evidence of the accused person himself who said that Segun Fatoki was introduced to him by his uncle, Chief Awe, who asked him to go to Fatoki’s
10 place at Ajegbaju. But from the picture that he himself painted he did not know either the Black Arrow or its agent Mr. Segun Fatoki. I then wonder how the Management of the Union could have known any of these strangers. Indeed as he said he too was searching for the address of Black arrow ventures Limited in Lagos.The accused fed this Court with tissues of lies. Or how come the accused person himself as Manager of the Union did not know the address of Black Arrow venture who he claimed the Union had been having dealings with in the past one of its customers Surely the accused person never intended this Court to believe his stories. Most of these stories are after thoughts since they are not contained in his extra judicial statement to the police. They are make-up stories. They are worth nothing in terms of defence to this a allegation made against him, the accused. It was his uncle Chief Olajide Awe who knew these rogues. He himself did not know them. He was so blinded by the secret profit to be made out of the secret transaction that he sold the goods to these strangers on credit. but he did not tell this Court that it was customary of the Union to sell on
11 credit”.
The elements of stealing consist of taking, converting and fraudulent intention.
Section 383(i) Criminal Code Law Vol. Laws of Ondo State 1978 as applicable to Ekiti State provides as follows:- “383(i)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”.
PW1, PW2 and PW3 gave consistent evidence at the trial to the effect that the Co-operative Cocoa Productions, Akure gave the sum of N1,180,000.00 to Egbeoba Co-operative Multipurpose Union to buy 10 metric tonnes of cocoa on their behalf and after the cocoa had been purchased, it was graded and the accused now was asked to deliver the cocoa to the Company that gave the money but instead of doing so he diverted the cocoa and sold it to Black Arrow Ventures.
Learned Counsel for the respondent argued in his brief that the four prosecution witnesses led cogent, credible and uncontroverted evidence to show that the appellant intentionally and unlawfully diverted the ten tons meant for the Cocoa product Limited, Akure without the consent and knowledge of the Union;
12 hence the taking and diversion of the cocoa was done with fraudulently intention.
The learned trial Judge found that even if the Union had been dealing with Black Arrow Ventures, the cocoa which he was given to deliver was not meant for Black Arrow Ventures but for the Co-op Akure. Having analysed the circumstances surrounding the sale of the cocoa to Black Arrow Ventures, the learned trial judge came to the inevitable conclusion that he sold the cocoa fraudulently against the policy or practice of the Union. This finding was upheld by the Court below when it stated at page 155 that:-”…….. the learned trial judge painstakingly performed that duty of evaluating the totality of the evidence adduced at the trial and came to the irresistible conclusion that the appellant committed the offence which he was charged and tried.”
An appellate Court will not ordinarily interfere with the findings of facts made by a trial Court on credibility of witnesses unless it is shown that such findings are perverse or are not the result of proper evaluation of the evidence.. See: Sanyaolu v. State (1976) 5 SC 37: Rabiu v. State (1980) 8-11 SC 130; Adelumola v State (1988)1 NWLR
13 (pt. 73) 683; Sugh v State (1988) 2 NWLR (pt. 77 475 and State v Nnolim (1994) 5 NWIR (Pt. 345) 394.
Learned counsel for the appellant submitted in the brief of argument that the appellant’s testimony which absolved him of stealing was uncontroverted and never challenged by way of cross-examination and therefore should be accorded a probative value above the evidence adduced by the respondent’s witnesses. This argument was countered by the respondent who argued that any testimony whether controverted or not must still be reviewed, scrutinised, evaluated and analysed by the trial Court. I agree that where the evidence adduced before the trial Court is unchallenged and Uncontradicted, a trial Court still has a duty to evaluate it and be satisfied that it is credible and sufficient to sustain the claim.See: Gonzee (Nig.) Ltd v Nigerian Educational Research and Development council (2005) 13 NWLR (pt.943) 634.
The accused in his effort to justify his action selling the cocoa to Black Arrow Ventures contrary to the directive he was given to deliver the cocoa to the Co-operative product Limited Akure claimed that the Company refused to take delivery of the cocoa because
14 of the drop the price of cocoa and he took the decision with the knowledge of the President of the Union. The learned trial Judge found it difficult to be persuaded by these reasons given by the accused person who acted contrary to the instruction he was given reasoned that the accused was carried away by the allure of making some quick secret profits for himself and his friends which backfired when payment was not forthcoming. He further concluded that if the accused person sold the cocoa to someone else at the instance of any of thePresidents mentioned, he would not have fled after the failure of the transaction. After x-raying the evidence given by the accused the learned trial judge came to the same conclusion he had arrived at when he considered the evidence of theprosecution witnesses i.e. that all the ingredients needed to be a case of fraudulent conversion had been established. He considered the disappearance of the accused after the sale as clear evidence of his guilt. The Court below accepted the evaluation made by the trial Judge and the conclusion that the appellant committed the offence.
The findings made by the learned trial Judge and
15 affirmed by the Court below were made on sound footing. There is no reason whatsoever for this Court to interfere with those findings. The Court below was therefore right in confirming the conviction of the appellant since he was entrusted with the 10 metric tonnes of cocoa to deliver to the Co-operative Cocoa Products Akure and instead of carrying out the directive, he diverted the cocoa and sold it to Black Arrows Ventures for a profit. The fraudulent intent by the appellant was clearly manifested when he disappeared after selling the cocoa to Black Arrow Ventures. The entire evidence adduced in the case did not suggest only a possibility but a certainty that the appellant committed the offence.
I find no merit in the appeal whatsoever and it is accordingly dismissed. The conviction and sentence passed on the appellant by the Ekiti State High Court and which was affirmed by the Court of Appeal Ado-Ekiti on 7th July, 2011 in appeal No. CA/AE/C.27/2010 is further affirmed by me.
Appeal is hereby dismissed.
SC.447/2011