Ola Olu Titilayo & Ors V. The State (1997)

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EDOZIE, J.C.A.

The 1st, 2nd and 3rd appellants herein were respectively the 3rd, 4th and 7th accused persons before Jos High Court in Suit No. PLD/J54C/87 in which they together with seven other accused persons were jointly charged and tried in seven heads of charges for various offences viz: conspiracy, cheating by personation, forgery and criminal breach of trust under sections 97(1), 315, 324 and 366 respectively of the Penal code Cap 89 Laws of Northern Nigeria 1963. The heads of charges as they pertain to the appellants are 1, 2 and 7 and they read as follows:

“1. That you Edem Edokpolo, John Akudo, Ola Olu Titilayo, Michael Akpata, Gideon Pam Toma Tok and Chiroma Gunda between 14/9/79 and 21/2/85 at Vom, within the Plateau Judicial Division, being public servants in the employment of National Veterinary Research Institute as storemen and in that capacity entrusted with certain property; namely, vaccines valued at N137, 310.95 committed criminal breach of trust with respect to the said vaccines and you thereby committed an offence punishable under Section 315 of the Penal Code.

2. That you Charles Etareri, Chiroma Gunda, Ola Olu Titilayo, Ede Edokpolo, and John Akudo, sometime in 1982 at Vom, within the Plateau Judicial Division agreed to do an illegal act namely, fraudulently approved and supplied vaccines to Charles Etareri and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
3. That you Joseph Olalekhon, Ola Olu Titilayo, Chiroma Gunda, Michael Akpata and Tom Tok, sometime in July, 1983, at Vom, within the Plateau Judicial Division agreed to do an illegal act, namely, fraudulently approved and supplied vaccines to Joseph Ilalokhon and you thereby committed an offence punishable under Section 97(1) of the Penal Code.”

Each of the appellants pleaded not guilty to each head of charge. At the trial, the prosecution called a total of thirteen witnesses and tendered several documentary exhibits. Thereafter the appellants testified in their defence.

The gist of the case is that at all times material to the case, the appellants and 4 others accused, all of whom were 1st to 7th accused persons were storemen in the employment of the National Veterinary Research Institute Vom (Institute or NVRI for short). The institute produced assorted types of animal vaccines for supply to State Government and companies on credit. The vaccines on being produced were entrusted to the storemen (1st to 7th accused persons) who supply or issue them out on the approval of the Director of the Institute. The main plank of the prosecution’s case is that the storemen among whom were the appellants supplied vaccines to 8th, 9th and 10th accused persons without the authority of the Director of the Institute.

The 8th, 9th and 10th accused persons using fictitious names applied for and obtained the vaccines on credit from the Institute by falsely representing that they were agents of some reputable companies, vis Ogbemudia Farms Ltd, Delco Farms Ltd and Mitchel Farms Ltd. Audit investigation carried out by the Institute disclosed that the indebtedness of Ogbemudia Farms Ltd and Delco Farms Ltd, stood at N65, 575.80 and N79, 584.84 respectively. The fraud was exposed when an official of the Institute sought to recover payment from the aforesaid Farms and was told that they never authorised the 8th, 9th accused persons to receive any vaccines from the Institute on their behalf. The matter was reported to the police who after due investigation arrested all the accused persons and in consequence they were prosecuted.

At the conclusion of the trial, Uloko, C.J. found each of the appellants guilty as charged and sentenced each to imprisonment for 5 years or N10, 000 fine in respect of each charge. Aggrieved thereby, the appellants have appealed to this court. Mr. Makanjuola, learned counsel for the 1st and 2nd appellants filed notices of appeal on their behalf and pursuant thereto he filed an appellant brief. Similarly Mr. O.B. James representing the 3rd appellant filed a notice of appeal and later an appellant brief. The appeals were consolidated for determination. On 13/10/97, when the appeal came up for hearing, it was observed that although the respondents was duly served with both the appellants’ brief and the notice of hearing it neither filed its brief nor was it represented by counsel. We directed that the appeal should be heard. There upon learned counsel adopted their respective briefs and urged that the appeals be allowed. For the 1st and 2nd appellants, three issues were formulated for determination viz:

“1. Whether the appellant Ola Olu Titilayo and Michael Akpata could be convicted and sentenced for offence of criminal breach of trust when there was no wrongful gain to the appellants, the appellants did not act dishonestly and the respondent knew their debtors owing the amount forming the basis of first charge i.e. criminal breach of trust contrary to Section 315 Penal Code,”

2. Whether the appellants Ola Olu Titilayo and Michael Akpata could be convicted and sentenced for offence of conspiracy, the trial Judge having convicted the 7th and 10th accused persons for offence of cheating by personation by deceiving the NVRI staff, the staff deceived includes the appellants?
3. Whether the learned trial Judge could rely on the statement of co-accused, i.e. Exhibits 130 to 131 statements made to police by co-accused to convict the appellants when the appellants did not admit and/or adopt the facts contained therein?”

In the 3rd appellant’s brief the lone issue formulated is:

“Whether the conviction of the appellant can be justified having regards (sic) to the evidence before the court?”

Before I embark on the merit of this appeal I deem it necessary to point out that some of the issues as framed in the 1st and 2nd appellants’ brief are rather exceptionable. An issue for determination is a concise statement of the complaint of the appellant raised in the grounds of appeal. The issue raised must not be argumentative or be rendered in such a prolix manner that the issue becomes meaningless. The issue raised for determination should not contain argument of any kind. Whatever argument is intended to prop an issue should be canvassed in the appropriate part of the brief of argument. See Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296. An issue in an appellate court is a proposition of law or fact framed in a manner with an aim to determine the merit of the appeal: See Chukwuma Okwudili Ugo v. Amanchukwu Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 580, See Amon Lodge Hotels Ltd v. Mercanthe Bank (1993) 3 NWLR (Pt. 284) 721 at 729.

The 1st and 2nd issues for determination as formulated in the 1st and 2nd appellants’ brief are, with respect to counsel, rather prolix, argumentative and inelegantly worded. They confuse rather than simplify matters. In considering the merit of this appeal I need only to refer to the reasons given by the learned C.J. in convicting the appellants and some of their colleagues. The reasons are contained on pages 236 to 240 of the record which read as follows:

“2nd Head of charge:-

It is preferred against the 1st, 2nd, the 3rd, the 7th and the 9th accused. The 9th accused has absconded the 2nd accused is dead. The 9th accused was represented by a counsel in spite of the fact of his abscondment. The charge alleges conspiracy to approve and supply vaccines to the 9th accused.