JUBRIL v. FRN (2018) LPELR-43993(CA)

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

INTRODUCTION

Can a person be allowed to hide under and use his company to perpetrate criminal acts like the Offences of Obtaining Money by False Pretences, Forgery and Uttering? The Law Forbids!!!

In fact, by virtue of the apt and succinct provisions of  Section 10(1) of the Advance Fee Fraud Act which provides –
“Where an offence under the Act has been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in such capacity, he, as well as the body corporate where practicable shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.”

Such a fellow or group of fellows as well as the Company shall be criminally liable to be prosecuted and if found guilty, convicted and sentenced accordingly.

FACTS

Based on the Petitions sent to the Economic and Financial Crimes Commission by the then Minister of Petroleum Resources, Allison Madueke, and some Civil Society organisations, Brilla Energy Limited, were one of the companies investigated for fraud subsidy on Premium Motor Spirit (PMS) by the Economic and Financial Crimes Commission. Rowaye Jubril is the Managing Director and the alter ego of Brilla Energy Limited.

In the course of the Commission’s investigation, it was found out that Brilla Energy Limited, was awarded the permit to import about 13,000 metric tons of Premium Motor Spirit (PMS) by the Petroleum Product Pricing Regulatory Agency from Napal Petroleum Inc. Panama.

Rowaye Jubril acting as the Managing Director and the alter ego of Brilla Energy Limited then fraudulently forged documents to show that the Premium Motor Spirit were indeed imported from Petrobras in Brazil and shipped through the mother vessel, M/T Overseas Limar, from port of Sao Sebastiao in Brazil on November 22, 2010. Thereafter, the mother vessel had a ship to ship (STS) transfer with the daughter vessel on January 27, 2011 and  the 2nd daughter vessel, M/T Dani 1, had a ship to ship (STS) transfer with M/T Delphina offshore Cotonou on March 1, 2011, before M/T- Dani 1 finally discharged the cargo at Obat Terminal on March 9, 2011.

With these forged documents, the sum of N963, 796, 199.85k (Nine Hundred and Sixty-Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira, Eighty Five Kobo) was fraudulently obtained from the Federal Government as payment for fuel subsidy.

At the conclusion of investigation, Rowaye Jubril and Brilla Energy Limited were arraigned for trial on a 13 count Charge for obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, Forgery contrary to Section 467(2) (k) of the Criminal Code Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468 of the Criminal Code Cap. C17, Laws of Lagos State. They pleaded not guilty and the matter proceeded to trial.

To prove its case, the Prosecution (Economic and Financial Crimes Commission on behalf of the Federal Republic of Nigeria) called twenty witnesses and tendered forty-three exhibits. At the close of the Prosecution’s case, Rowaye Jubril and Brilla Energy Limited entered a “No Case Submission” which was however overruled. Thereupon, the trial Court called upon them to enter their defence. However, they opted to rest their cases on that of the Prosecution.

The trial Court thereafter delivered its Judgment on March 16, 2017 wherein per Okunu, J. found Rowaye Jubril and Brilla Energy Limited guilty on all counts. Rowaye Jubril (now Appellant) was sentenced to ten years imprisonment on the 1st count and eight years imprisonment on counts two to thirteen of the Charge, the terms of imprisonment are to run concurrently. Brilla Energy Limited, was ordered to refund to the Federal Government of Nigeria the sum of N963, 796, 199.85k (Nine Hundred and Sixty-Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira, Eighty Five Kobo), being the amount found to have been fraudulently obtained.

As expected, dissatisfied with the judgment of the trial Court, Rowaye Jubril has appealed to the Lagos Judicial   Division of the Court of Appeal Coram: JUMMAI HANNATU SANKEY. J.C.A. (Delivering the Leading Judgment), ONYEKACHI AJA OTISI, J.C.A and JOSEPH EYO EKANEM, J.C.A.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

(i) Whether the Appellant was rightly charged, prosecuted and convicted along with the 2nd Defendant (a limited liability Company) with respect to the crimes alleged against the company.

(ii) Whether the learned trial Judge was right or wrong to have relied on the inadmissible/Hearsay evidence of PW 17 and Exhibit P7 to hold that the prosecution proved beyond reasonable doubt the offences of forgeries of 2 (two) Saybot Concrement documents (pages 26 & 29 in Exhibit Pl) against the Appellant.

(iii) Whether the Learned Trial Judge was right or wrong when she held that the prosecution proved beyond reasonable doubt the offence of forgeries of 4 Inspectorate Marine Services documents (Exhibit P8) against Appellant.

(iv) Whether the learned trial Judge was right or wrong when she held that the prosecution proved beyond reasonable doubt, the offence of uttering 2 (two) Saybolt Concrement documents (pages 26 & 29 in Exhibit p1) and 4 Inspectorate Marine services documents (Exhibit p8) against the Appellant.

(v) Whether the learned trial Judge rightly admitted in evidence and relied on the internet print-out copy of Lloyds List of Intelligence Report/Database (Exhibits p23- 25) as well as the hearsay testimony of PW9 who tendered same in evidence, for the purpose of establishing the truth of prosecution’s case/allegation that the Mother vessel MT LIMAR was not at the port of loading and point of transhipment at the relevant times stated in the bills of lading.

(vi) Whether the learned trial Judge rightly or wrongly admitted in evidence, accorded probative value to Exhibit p41 series, which were documents made in Greece, in Greek language and purportedly translated to English language in order to establish the truth of the allegation of non-importation of fuel by the 2nd Defendant and non-STS transfer of fuel by the Mother Vessel MT overseas Limar to 1st Daughter vessel Delphina.

(vii) Whether the learned trial Judge rightly or wrongly held that the prosecution proved beyond reasonable doubt, the offence of Advance Fee Fraud of the sum of N963, 796,119.85 against the Appellant.

(viii) Whether the material and unresolved contradictions in the evidence of prosecution witnesses (PWs) were sufficient to cast doubt in the guilt of the Appellant.

(ix) Whether the learned trial Judge rightly or wrongly admitted and acted on irrelevant and highly prejudicial evidence of Appellant’s reputation/business relationship as Director and Shareholder of Inter oil Nigeria Limited and Ports and Marine Cargo Experts Limited.

(x) Whether the failure of the learned trial Judge to consider the evidence of prosecution witnesses which is in favour of the innocence of the Appellant and cast doubt in the prosecution’s case did not result in miscarriage of justice.

(xi) Whether the sentences imposed by the Court below [on the Appellant] who has no Criminal record is an issue given the circumstances of the case is excessive.

DECISION

In a unanimous decision, the appeal was dismissed for lack of merit. Consequently, the judgment of the Lagos State High Court of Justice per Okunnu, J., was affirmed.

RATIO DECIDENDI

  • CRIMINAL LAW AND PROCEDURE – CRIMINAL LIABILITY/RESPONSIBILITY: Whether officers of a company and the company can be jointly charged, prosecuted and convicted for criminal offences

“Learned Senior Counsel has conceded, and thus it is common ground that the Appellant at all times, acted in his capacity as the managing director and alter ego of the 2nd Defendant, Brila Energy. It is also correct that the locus classicus on this is Salomon v Salomon & Company Ltd (1987) AC 22. Therein, the House of Lords, in reversing the decision of the Court of Appeal, held that a limited liability company is separate and apart from its members and officers. In addition, Section 65 of the Companies and Allied Matters Act, 1990 provides-
“Any act of the members in general meeting, the board of directors or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civil liable therefore to the same extent as if it were a natural person. Provided that:
(a) The company shall not incur civil liability to any person if that person had actual knowledge at the time of the transaction in question that the general meeting, board of directors, as the case may be had no power to act in the matter or had acted in an irregular manner or if, having regard to relationship with the company, he ought to have known of the absence of such powers or the irregularity.
(b) If in fact a business is being carried out by the company, the company shall not escape liability for acts undertaken in connection with that business merely because the business in question was not among the business authorized by the company’s memorandum.”
It is evident from these provisions that a limited liability company or an incorporated company is a different legal entity from its management. It has a separate and distinct life and existence. In other words, the officers and members of an incorporated company are covered by the company’s veil of incorporation and that veil cannot be lifted for the purpose of attaching legal responsibility or liability to its officers who are carrying on the usual business of the company. See also Oriebosi v Andy Sam Investment Co. Ltd (2014) LPELR-23607(CA) 23-24; Fairline Pharmaceutical Industries Ltd v Trust Adjusters Nig. Ltd (2012) LPELR 20860(CA) 30; Chartered Brains Ltd v Intercity Bank Plc (2009) LPELR 8697(CA) 88-22; Ogbodo v Quality Finance Ltd (2003) 6 NWLR (pt. 815) 147: Erebor V Major & Co. (Nig) Ltd (2000) LPELR-9129(CA) 14.
Also, the Black’s Law Dictionary 8th Edition at page 89, defines ‘alter ego’ thus:
“A corporation used by an individual in conducting personal business, the result being that a Court may impose liability on the individual by piercing the corporate veil when fraud has been perpetrated in someone dealing with the corporation.”
Nonetheless, in-roads have long since been made into this absolute position of the law such that there are exceptions to the rule. For instance, a director or managing director of a company shall be held liable or responsible when it is alleged and proved that he is a surety or a guarantor to the trade debt of the company. See Cooperative Bank Ltd v Obokhare (1996) 8 NWLR (Pt. 468) 579; & Afribank Nig Ltd v Moslad Enterprises Ltd (2007) LPELR-5126(CA) 19-10, paras G-D, Akaahs, JCA (as he then was).
Another exception has also been created by Section 10(1) of the Advance Fee Fraud Act which provides –
“Where an offence under the Act has been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in such capacity, he, as well as the body corporate where practicable shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.”
This therefore constitutes an exception to the law that the act of an officer of a company such as a director, manager or the like, shall be treated as the act of the company itself and he shall be criminally or civilly liable for such acts. It is therefore no surprise that this Court, in the recent case of Nwude v FRN (2010) 5 NWLR (Pt.1505) 471 at 482, when faced with similar facts and circumstances, held thus:
“Under Section 10 of the Advance Fee Fraud and other Related Offences Act, 1995, where an offence under the Act which has been committed by a body corporate is proved to have been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary, or other similar officer of the body corporate, or any person purporting to act in any such capacity, he, as well as the body corporate, where practicable shall be deemed to have committed that offence and shall be liable to be proceeded against and punished accordingly.”
The Appellant herein was charged with, among other offences, for the offence of obtaining money by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act No. 14 of 2006. He therefore falls squarely under this exception to the rule in Section 65 of the Companies and Allied Matters Act.
In addition, I agree with learned Counsel to the Respondent that the decision of the Supreme Court in Oyebanji v State (2015) LPELR-24751(SC) is firmly applicable to the facts in the instant Appeal. In that case, the managing director of the company sought to escape liability from an allegation of stealing levelled against him by hiding behind the veil of incorporation, contending that by receiving monies for the purchase of tyres, tubes and granulated sugar from the complainant to the Police and defaulting on the agreement, it acted for the Company Baminco Nig Ltd, and so could not be held liable for the acts of the company. In upholding the decisions of the trial Court as well as that of the Court of Appeal, the Supreme Court, per Galadima, JSC held thus at pages 19-21 of the E-Report as follows:
“The Courts below rightly disregarded the corporate entity of the Baminco (Nig) Ltd and paid regard to the entities behind the legal facade or “veil” of incorporation in the interest of justice… In my respectful view, the veil of incorporation ought to be lifted in the interest of justice and in the circumstances of this case. There can be no better instance when the corporate veil can be lifted as in this case. The Court will not allow a party to use its company as a cover to dupe, defraud or cheat innocent individual or a company who entered into a lawful contract with it only to be confronted with defence of the company’s legal entity as distinct from its directors. As it has been observed elsewhere, most companies in this country are owned and managed solely by an individual, while registering the members of his family as the shareholders. such companies are nothing but one-man business! Hence there is the tendency to enter into contract in such company’s name and later on turn around to claim that he was not a party to the agreement since the company is a legal entity. See Akinwumi Alade v Alice (Nigeria) Ltd & Anor (2010) 12 SC (Pt. II) 59.
This case at hand is a case in which the law should disregard the corporate entity and pay regard to the entities behind the corporate veil. Section 35 of the Criminal Code cap. 38 vol. II Laws of Oyo State 2000… the law applicable at the time of trial provides thus… By this provision. the allegation of crime lifts the veil of corporate or voluntary associations and unmasks the face of the suspected criminal to face prosecution. Where the veil is lifted, the law will go behind the corporate entity so as to reach out to the individual member of the company whose conduct or act is criminally reprehensible.”
(Emphasis supplied)
In his own contribution to the Judgment, Fabiyi, JSC also stated inter alia thus at pages 25-26 of the E-Report
“Let me start my remarks by pointing it out right away that the appellant qualifies as the ‘alter ego’ of Baminco Nigeria Ltd… ‘Alter ego’ is said to mean ‘second self’. Under the doctrine of alter ego, [the] Court merely disregards [the] corporate entity and holds [the] individual responsible for [the] act knowingly and intentionally done in the name of the corporation. Ivy v. Plyler 246 Cal. App. 2d 548. To establish the doctrine, it must be shown that the individual disregarded the entity of the corporation and made it a mere conduit for the transaction of his own private business. The doctrine simply fastens liability on the individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability springs from fraud perpetrated not on the corporation but on third persons dealing with the corporation… Perhaps I should further say that the appellant was the directing mind and/or arrow head of Baminco Nigeria Limited when the role carried out by him is properly considered. The appellant was the human personality behind the activity of the company…
There is no shred of doubt that the fraudulent acts of the appellant called for the lifting of the veil of his company which opened him up for prosecution before the trial Court… He was rightly found guilty of stealing by conversion of the stated money.” (Emphasis supplied)
From the facts of the instant case, it is true that it was the 2nd Defendant, Brila Energy Ltd, who was awarded the permit to import about 13,000 metric tons of Premium Motor Spirit (PMS) by the PPPRA from Napal Petroleum Inc. Panama page 1 of Exhibit P1. The Appellant himself submitted Exhibit 1 to PPPRA supposedly to show that the product, PMS was imported from Napal Petroleum Inc. Panama and shipped to Nigeria through MT Overseas Limar, as the mother vessel, from the port of loading in Sao Sebastio in Brazil.
In addition, the Appellant submitted documents that showed that Saybolt was the company that conducted the inspection of the product on board the mother vessel MT Overseas Limar – pages 26 & 29 of Exhibit P1. He also submitted documents purported to emanate from Inspectorate Marine Services Nigeria Ltd as the inspectors who inspected the mother vessel to ensure that the consignment met the specifications – pages 71, 19, 22 and 27 of Exhibit P1. Also submitted were documents from Port Cargo Experts Ltd to show that it superintended the discharge of products from MT Overseas Limar to MT Delphina and MT Delphina to MT Dani 1 at Cotonou – pages 22, 27, 19 and 37 of Exhibit P1.
It is therefore these representations made in the bundle of documents attached to the letter submitted to the PPPRA under the hand of the Appellant as the alter ego of Brila Energy Ltd and admitted in evidence as Exhibit P1, that were held by the trial Court to be false representations which tended to show that the company had imported the petroleum product (PMS) from Napal Petroleum Panama in Brazil and shipped it through the mother vessel MT Overseas Limar. The forwarding letter of Exhibit P1 titled “Payment claim for import of 13,243.447 MT of PMS under the PSF scheme for 4th Quarter 2010′ was signed by the Appellant as the Managing Director/CEO of the company.
In addition to the provision of Section 10(1) of the Advance Fee Fraud Act, this Court in the case of Tsalibawa V Habiba (1991) 2 NWLR (Pt. 174) 461, per Ogundere, JCA (as he then was) stated thus on the import, significance and consequence of a signature on a document-
“It is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds out himself out as bound or responsible for the contents of such a document. R v. Kent Justices L.R. 8 Q.B. 305.”
These documents were submitted by the Appellant to the Federal Government through its agency, the PPPRA, to support his claim for the payment of fuel subsidy to the company where he was the alter ego, which was indeed subsequently paid as claimed in the sum of N963, 796, 199.85
Furthermore, it is a fact as disclosed by Exhibit 3, the letter from the CAC to the EFCC, that the Appellant was the controlling share-holder, the Managing Director, alter ego and also directing mind of Brila Energy Ltd. After the import licence to import 13, 000 metric tonnes of PMS was awarded to Brila Energy Ltd, the Appellant again approached Enterprise Bank (formerly Spring Bank Plc) for a facility to finance the purchase and importation of the PMS. Thereafter, he furnished the Bank with all the relevant information in respect of the importation of the PMS, such as the name of the mother vessel, which he gave as MT Heli, and the daughter vessel which he gave as MT Delphina. Sometime later, he changed the name of the mother vessel to MT Panther (also referred to as MT Panta).
Thereafter, the Appellant again collated documents and sent them to the Petroleum Product Pricing Regulatory Agency Zonal office, Lagos and submitted the Notice of arrival informing of the time when the vessel would arrive. The Appellant submitted these documents on behalf of the 2nd Defendant, which documents were checked and forwarded to the PPPRA Head office in Abuja, which subsequently recommended the payment of the sum of N963, 796, 199.85 to the 2nd Defendant, based on the Appellant’s claim submitted to PPPRA and admitted in evidence at the trial Court as Exhibit P1. After this, the Enterprise Bank again received payment into the customer’s account.
From these actions and more carried out by the Appellant on behalf of the 2nd Defendant, the Appellant no doubt held himself out as the alter ego of the company. Therefore, where his actions in purporting to import PMS in line with the import permit issued to the company by PPPRA, and in submitting documentation which he knew to be false representations of how and where the PMS was sourced and discharged, which directly led to the payment of fuel subsidy to the company, the Appellant left himself wide open to be held responsible for his actions which were found to have been illegal and/or fraudulent – Section 10(1) of the Advance Fee Fraud Act. The Appellant was therefore rightly prosecuted and along with the 2nd Defendant for the crimes alleged against the company. It is for these reasons that I resolve issue one in favour of the Respondent.”Per SANKEY, J.C.A. (Pp. 16-28, Paras. C-C).

  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF UTTERING: Ingredients of the offence of uttering

“As has been rightly submitted by learned Senior Counsel for the Appellant, the offence of uttering is akin to the offence of forgery and the same elements of proof, as well as punishment, apply. Thus, in view of the earlier findings of this Court it is now established that the six documents in question, made up of the two documents purported to be from Saybolt Concremat in Brazil and the four documents purportedly evidencing the inspection operations of the trans-shipment between the vessels, M/T Overseas Limar and M/T Delphina, by Inspectorate Marine Services were forged, most of the ingredients of the offence of uttering of these documents have equally been established. I therefore adopt my findings under issues three and four above in respect of this issue. Indeed, to establish the offence of uttering, the prosecution must also prove that (a) the document/writing was false; and (b) the false document was knowingly and fraudulently uttered. This question of whether the Appellant knowingly and fraudulently uttered these false documents was also answered under the previous issues in this Judgment.
However, no harm will be done in reiterating them. The Criminal Code of Lagos State defines uttering to include – “using or dealing with, and attempting to use and deal with, and attempting to induce any person to use, deal with, or act upon the thing in question…” It is an indisputable fact that the Appellant, as the Managing Director/Chief Executive Officer of Brila Energy Ltd, compiled and submitted the bundle of documents attached to the covering letter written under his hand, (at page 3 of Exhibit P1), for the sole purpose of claiming and being paid a subsidy for the importation of PMS from Brazil by the Federal Government of Nigeria. The Respondent adduced evidence through the officers of the following agencies: EFCC, Petroleum Products Pricing Regulatory Agency (PPPRA) and the Debt Management office (DMO) which established that the subsidy calculated and paid to the Appellant and Brila Energy Ltd was based on the entire documents submitted by the Appellant, inclusive of these six forged documents. From the un-controverted evidence before the trial Court, the Appellant knowingly held out these false documents and presented them to the PPPRA as true in order to gain an advantage, to wit: to deceitfully claim an entitlement for the payment of subsidy for fuel that was not sourced, imported and supplied as claimed in the documents. The Appellant knew that the documents at pages 19, 22, 26, 27, 29 and 30 were forged, and yet he deliberately and intentionally presented them to the PPPRA, upon which the subsidy of N963, 796, 199.85k was paid by the Federal Government of Nigeria to Brila Energy Limited. The learned trial Judge was therefore right in her findings that the offence of uttering of the six documents in question was proved beyond reasonable doubt.”Per SANKEY, J.C.A. (Pp. 59-61, Paras. C-F).

  • EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS: Whether the reliability and functionality of a computer used in generating a document can be made by oral evidence

“The Appellant has also sought to impugn the integrity of Exhibit 7 contending that the Respondent failed to tender the certificate of trustworthiness of the computer used in printing the documents, in compliance with Section 84(a) of the Evidence Act. However, where such a certificate is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert. See R v Shephard (1993) AC 380. This condition was satisfied by the testimony of PW17 on oath when he explained the process of how he scanned the emails from Saybolt Concremat Brazil, produced and printed them in colour and then sent them to the EFCC. I therefore have no reason to interfere with the finding of the trial Court in this regard. I resolve issue two in favour of the Respondent.”Per SANKEY, J.C.A. (Pp. 42-43, Paras. F-C).

  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF FORGERY: Whether a person must be shown to have personally forged a document before he can be convicted for the offence of forgery

“It has also been argued by the Appellant that no evidence was adduced to prove that he forged the documents with his own hand and that the signatories of the documents were also not produced. It is the law that where a document was used as an intermediate step in the scheme of fraud in which the accused is involved, if it shown that such a document was false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exist that either the accused forged the document with his own hand or procured someone to commit the forgery. It is immaterial who actually forged a document so long as an accused person is a party to the forgery. In Agwuna v AG Federation (1995) 5 NWLR (Pt. 396) 418, the Supreme Court held per Iguh, JSC as follows
“It is certainly not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. The position of the law is that all persons who are participles criminis whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with [the] actual commission of the crime.” (Emphasis supplied)
See also Osondu v FRN (2000) 12 NWLR (pt. 682) 483; & Hassan v Queen (1959) SCNR 520 at 522.”Per SANKEY, J.C.A. (Pp. 55-56, Paras. B-B).

OTHER AUTHORITIES

SHEU v. STATE (2018) LPELR-44048(CA)

Applicable Area: Criminal Law and  Procedure

RATIO DECIDENDI

  • CRIMINAL LAW AND PROCEDURE – DEFENCE/PLEA OF ALIBI: Duty of an accused person raising the defence of alibi

“First, it is settled law that an accused must raise his defence of alibi timeously and at the earliest possible opportunity. In the case of: UDOEBERE VS. THE STATE (2001) FWLR (PT. 59) 1244 at 1258-1259, the Supreme Court held that for the accused person to raise the defence while testifying in Court at his trial is to deliberately deny the prosecution its right and duty to investigate the defence of alibi.
Much later, but consistent with the position of our Superior Courts, the Court of Appeal per Sankey JCA held in the case of: AFOLALU VS. STATE (2007) LPELR – 8692 (CA) that:
“Alibi is a radical defence and it simply means an accused was somewhere else at the time of the commission of the offence and could not have possibly been on the scene to partake of it
AKPAN VS. THE STATE (2002) 5 SCNJ 301,  OZAKI VS. THE STATE (1990) 1 NWLR (PT. 124) 92 and NWABUEZE VS. THE STATE (1998) 4 NWLR (PT. 86) 16.
The facts of the alibi are peculiarly within the Appellant’s knowledge and such witnesses as may be available. He therefore has the onus to disclose such facts with necessary details and particulars at the earliest opportunity so as to transfer the burden to the Police to check them out and deal with them with some finality.
See: EYISI VS. THE STATE (2000) 12 SCNJ 104, (2000) 15 NWLR (PT. 691) 555.” (P.38).”Per OWOADE, J.C.A. (Pp. 42-43, Paras. C-D).

  • EVIDENCE – WITHHOLDING EVIDENCE: Conditions that must be satisfied before a Court will presume withholding of evidence

“It must be stated here that the attempt by the learned Counsel for the Appellant to invoke the Provision of Section 167 (d) of the Evidence Act 2011 in this respect is to no avail. This is because the two conditions precedents to the operation of the section are not present in this case. They are:
a) That such evidence existed.
b) That it was that party that withheld it.
See:
UMAR VS. STATE (2014) LPELR – 23190 (SC).
ONWUJUBA VS. OBIENU (1991) 4 NWLR (PT. 183) 16.”Per OWOADE, J.C.A. (Pp. 28-29, Paras. D-A).

  • CRIMINAL LAW AND PROCEDURE – OFFENCE OF ARMED ROBBERY: Whether actual violence is necessary to establish the offence of armed robbery

“On the first argument by the learned Counsel for the Appellant, it is not correct to say that to constitute Armed Robbery, that the victim of the robbery must sustain wounds or be wounded by an accused person.
The position of the law is made very clear by Akeju J.C.A. in the case of: MOHAMMED VS. STATE (2015) LPELR-25916 (CA) PP. 20-21 where the learned Justice of the Court of Appeal held on the meaning of Armed Robbery that:
“Armed Robbery from the Provision of Section 2 of the Robbery and Firearms (Special Provisions) Act simply means to rob while in possession of any Firearm or any offensive weapon or being in company with any person so armed. What then is “Robbery” and what constitutes “arms”? As regards the word “Arms” there is a clear subdivision of that term under Section 11 of the Act into “Firearms” and “Offensive Weapons” “firearms” include the following -cannon, gun, rifle, carbine, machine gun, cap gun, flint gun, revolver, pistol explosive or ammunition or other Firearms whether whole or detached pieces” while “offensive weapons” refer to “any article (apart from a Firearm) made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, matchet, dagger, cudgel or any piece of wood metal glass or
stone capable of being used as an offensive weapon.”
Secondly, none of the cases that define and spelt out the ingredients of the offence of Armed Robbery either from the Apex Court in Nigeria or the Courts below it ever defined the offence of Armed Robbery to include wounding or even inflicting personal violence on the victim. Rather, the three known ingredients of the offence of armed robbery are:-
1) That there was a robbery.
2) That it was an armed robbery.
3) That the accused was the robber or one of the robbers. And, that all the three ingredients must be altogether proved for the offence to be said to be proved.
See: ADEKOYA VS. STATE (2012) MSCJ VOL. II P. 20-21 PER PETER-ODILI J.S.C. (PP. 52-53); NWOKOCHA VS. A.G, OF IMO STATE (2016) LPELR- 40077 (SC); AMINU VS. STATE (1990) 6 NWLR (PT. 155) 125; MOHAMMED VS. STATE (2015) LPELR-25916 (Supra) and AFOLAYAN VS. STATE (2010) 16 NWLR (PT. 1220) 584 at 610.”Per OWOADE, J.C.A. (Pp. 25-27, Paras. E-F).

ADENIYI v. IFELODUN LOCAL GOVERNMENT & ORS (2018) LPELR-44050(CA)

Applicable Area: Civil Procedure

RATIO DECIDENDI

  • COURT – DUTY OF COURT: Duty of court to ensure that it does not make an order in vain

“Second, it is now trite that where there is an Appeal before the Supreme Court, as in the present case, a decision by the High Court which will render the result of the Appeal nugatory should be avoided. See MOHAMMED VS. OLAWUNMI (1993) 4 NWLR (PT. 287) 254 AT 278 – 279. Relatedly, the learned trial Judge was right by his conditional orders to avoid the ugly situation whereby his own judgment granting injunctive reliefs to the Appellant would be rendered impossible and or incapable of being obeyed if the Supreme Court found against the declaratory reliefs which the Court of Appeal earlier granted to the Appellant. The legal maxim is Lex non cogit ad impossibilia – meaning “The law does not compel to impossible ends”. Thus in the case of BULUNKUTU VS. ZANGINA (1997) 11 NWLR (PT. 529) 526 AT 539 – 540, the Court held that Courts should desist from making Orders in vain and not make Orders that are impossible to be obeyed or implemented. See also: C. C. B. (NIGERIA) PLC VS. OKPALA (1997) 8 NWLR (PT 518) 673 AT 694; OLADIPO VS. OYELAMU (1989)5 NWLR (PT. 120) 210 AT 221.”Per OWOADE, J.C.A. (Pp. 11-12, Paras. B-B).

AKANBI & ORS v. C.O.P KWARA STATE & ORS (2018) LPELR-44049(CA)

Applicable Area: Enforcement of Fundamental Human Rights

RATIO DECIDENDI

  • EVIDENCE – BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proving the legality of an arrest

“The third misconception of Law by the learned Counsel for the Appellants borders on misplacement of burden of proof.
Appellants’ Counsel sought to rely on the cases of:
MADIEBO VS. NWANKWO (2002) 1 NWLR (PT. 748) 426 at 433 and
AGBAKOBA VS. THE DIRECTOR, SSS (1994) 6 NWLR (PT. 351) 475 at 495
as establishing the proposition that:
“Where a party to a Suit Claims to have been unlawfully arrested and detained by another, the burden of proving the legality or Constitutionality of the arrest and detention is on the party that effected the arrest.”
In the attempt by the learned Counsel for the Appellants to apply this principle to the instant case, Appellants Counsel became unmindful of the fact that the above proposition describes the shift of the evidential burden of proof after a Claimant as in the case of the Appellants must have provided prima facie evidence of unlawful arrest and detention.
In the instant case, the learned trial Judge was thus right in relying on the case of COSMOS DESMOND VS. OKENWA (2010) LPELR – 4781 (CA) and to have held at page 300 on the Record of Appeal that
“It is trite that he who asserts must prove see Section 135 – 137 of the Evidence Act which laid down the fundamentals of such proof. The burden of proof lies on the Respondents to establish by credible Affidavit evidence that their fundamental right was breached.”
And concluded that:
“The Enforcement of Fundamental Human Right procedure cannot be used as a substitute for an enforcement of rights under the Law of Torts which is a more robust process or procedure for the enforcement and compensation of allege (Sic) breach of rights.”Per OWOADE, J.C.A. (Pp. 26-27, Paras. B-D).

  • POLICE – POLICE INVESTIGATION: Whether mere giving of explanation or making of a statement will stop police investigation

“There are two or perhaps three misconceptions of the Law that are noticeable in the Submissions of the learned Counsel for the Appellants in the instant case.
The first is the belief of the Counsel to the Appellants that because the origin of the Criminal allegations contained in Exhibit MOJ 1, the petition by the 4th – 7th Respondents is a land matter, that the Police are still not entitled to carry out Criminal investigation based on the petition.
The second misconception of the learned Counsel to the Appellants is his belief or impression that his explanation or defence on the Criminal allegations in Exhibit MOJ 1 must necessarily be accepted by the Police and should stop the Police from any other further interrogation, investigation or detention in the matter. This cannot be so and it is indeed a misunderstanding of the process of investigation.
Just as we say that a trial is not an investigation, an investigation is also not a trial.
The 8th Edition of the Oxford Learner’s Dictionary at page 792 partly explains the word “investigate” as “to find out information and facts about a subject or problem by study or research”.
The fact that the Appellants made statements or have given some explanations to the Police on the Criminal investigation based on Exhibit MOJ 1 would not stop the Police investigation, interrogation or detention until the Police are satisfied with the outcome of their investigation.”Per OWOADE, J.C.A. (Pp. 24-26, Paras. F-A).

ADEOYE & ANOR v. AYOKU & ANOR (2018) LPELR-44051(CA)

Applicable Area: Civil Procedure

RATIO DECIDENDI

  • APPEAL – DUTY/ROLE OF A RESPONDENT: Duty of a respondent in an appeal and effect of failure thereof

“On the 1st Respondent’s objection, I totally agree with the learned Counsel to the 1st Respondent that the purpose of Respondent’s brief of argument is to answer all issues raised in the Appellant’s Brief of Argument and nothing more. It is only where there is a Cross – Appeal from the particular Respondent that the Respondent/Cross Appellant can attack the Judgment Appealed against.
The role of a Respondent who did not Appeal or Cross – Appeal nor filed Respondent’s notice is to support the Judgment Appealed against or at best refrain from attacking the Judgment. Where the Judgment is unsupportable, the appropriate thing for the Respondent to do in such a situation is to Cross – Appeal before filing a Brief of Argument to attack the Judgment. See BASHAR VS. JOKOLO & ORS (2016) LPELR – 40241 (CA) pg. 13 -14.
In the circumstance, the 2nd Respondent’s brief of argument lacked a foundation upon which it could stand and it is hereby discountenanced.”Per OWOADE, J.C.A. (Pp. 8-9, Paras. B-A).

Culled From [LawPavilion]

Subscribe to Thenigerialawyer News!

LEAVE A REPLY