Wahabi Adejobi & Anor V. The State (2011)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This is further appeal against the judgment of the Ibadan Division of the Court of Appeal delivered on the 14th July, 2006 which allowed the appeal against the decision of the trial High Court in part and confirmed the conviction of the 1st Appellant but reduced his sentence of 4 years imprisonment without an option of fine to 2 years imprisonment without an option of fine on both counts to run concurrently. The undisputed facts of this case leading to the judgment of the court below are hereunder set out:

By an information presented on 6/4/2000 by the office of the Director of Public Prosecution Oyo State Ministry of Justice, for leave to prefer charges of conspiracy and stealing, the learned trial Judge, M. O. Adio, J, (as he then was) gave consent pursuant to Section 240(2)(b) of the Criminal Procedure Law, Cap 31, Laws of Oyo State 1978, for preferment of a single charge of stealing against the appellants and another accused, one Sulaimon Adeyemi who later died during the trial at the Oyo State High Court.

By an Order of trial court of 23/04/2001, made pursuant to a Motion On Notice dated 20/04/2001, the Respondent amended the existing charge to include a “Fraudulent False Accounting.” Thereafter the trial commenced and the Respondent called 3 witnesses (PW1, PW2, PW3. The 2nd Appellant gave evidence for herself and called no other witness. After listening to the addresses of the respective counsel, the learned trial Judge, convicted the 1st appellant of the offences of Conspiracy and Stealing. He was sentenced to 4 years imprisonment on each of the counts without an option of fine. The 2nd Appellant gave evidence for herself and called no other witness. After the address of her counsel the learned trial judge convicted her and was sentenced to 4 years without an option of fine.

Dissatisfied with their conviction, the appellants separately filed a Notice of Appeal to the court below. After the exchange of briefs by both parties to the appeal, the appeal was argued. The lower court delivered its judgment on 14/07/2005 in which it unanimously allowed the appeal in part, confirmed the conviction of the Appellants but reduced their sentences to 2 years without an option of fine on both counts, ordered to run concurrently.

Aggrieved with the judgment of the court below the Appellants appealed further to this Court and filed separate Notices of Appeal. Each contained 7 Grounds of Appeal. Parties filed and exchanged their briefs of argument and same were adopted and relied upon at the hearing of this appeal on 07/04/2011.

From the 7 Grounds of Appeal contained on the 1st appellants’ Notice of Appeal the following 2 issues are distilled for the determination of the appeal as follows:

“1. ISSUE ONE

Whether, having regard to the totality of the surrounding facts and the evidence adduced by the prosecution, the conviction of the 1st Appellant of the charge of Conspiracy by the trial court is sustainable as to warrant its affirmation by the court below

(Grounds 1, 2 and 5).

2. ISSUE TWO

Whether the lower court was right in affirming the conviction of the 1st Appellant for the offence of stealing N7,000,000.00 (Seven Million Naira), property of “Trans International Bank, Iwo Road Branch, Ibadan” (a non juristic person) and which the learned trial Judge suo motu altered to be a juristic person and therefore unilaterally amended the charge sheet without due process (Ground 3).”

On her part, from the 7 Grounds of Appeal the 2nd appellant identified 3 issues for determination of the appeal as follows:-

“1. Whether in law the 2nd Appellant was properly convicted on the offence of conspiracy having regard to the totality of the surrounding facts and the evidence adduced when same was not proved beyond reasonable doubt (covers grounds 4, 5 and 7).

2. Whether the lower court was right in affirming the conviction of the 2nd Appellant for the offence of stealing N7,000,000.00 property of “Trans International Bank, Iwo Road Branch, Ibadan” (a non-juristic person) which the learned trial Judge suo motu altered to be a juristic person and therefore unilaterally amended the charge sheet without due process (covers ground 3. In view of the irreconcilable, contradictions and unresolved piece of evidence regarding the actual sum of money allegedly stolen by the 2nd Appellant in this case, whether the lower court was right in affirming his conviction for the offence of stealing N7,000,000.00 when same was not proved beyond reasonable doubt (covers 4, 5 & 7).”

The Respondent filed brief of argument in respect of the 1st Appellant on 16/03/2011 upon an application for extension of time, its learned counsel, submitted the following 2 issues for determination: