MANGA V FRN

MANGA V FRN


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON THURSDAY, 22ND MARCH, 2018


Suit No: CA/L/1333CA/17

CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

ABIMBOLA OSARUGUE OBAS KI-ADEJUMO, JCA


BETWEEN

ALHAJI AL-SIDIQ MANGA
(APPELLANT)

AND

FEDERAL GOVERNMENT OF NIGERIA
(RESPONDENT)


PRONOUNCEMENT


A. COMPANY LAW
1. Liability of a Company – Provision of the law on liability of a company
Whether an employee of a company can be held liable for the criminal acts of the company; exception thereto

The Appellant herein has vehemently contended that he being a director cannot be held (vicariously) criminally liable for the acts or omission of the company. Permit me to refer to Section 66 (1 – 3) of the Companies and Allied Matters Act 2004 which provides that:
1. Except as provided in Section 65 of this Act, the acts of any officer or agent of a company shall not be deemed to be the acts of the company unless –

(a) The company acting through its members in general meeting, board of directors, managing director shall have expressly or impliedly authorized such officer or agent to act in the matter; or

(b) the company, acting as mentioned in paragraph (a) of this subsection, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation unless such person had actual knowledge that the officer or agent had no authority or unless having regard to his position with or relationship to the company, he ought to have known of such absence of authority.

2. The authority of an officer or agent of the company may be conferred prior to any action by him or by subsequent ratification, and knowledge of such action by the officer or agent and acquiescence therein by all the members of the company or by the directors for the time being or by the members in general meeting, board of directors, or managing director; as the case may be.

3. Nothing in this section shall derogate from the vicarious liability of the company for the acts of its servants while acting within the scope of their employment.

See also Section 290 (c) of CAMA on personal liability of directors and officers:

“Where a company –
with intent to defraud, fails to apply the money or other property for the purpose for which it was received, every director or other officer of the company who is in default shall be personally liable to the party from whom the money or property was received for a refund of the Money or property so received and not applied for the purpose for which it was received; Provided that nothing in this section shall affect the liability of the company itself.”

Therefore there is no gain saying that generally vicarious liability is not allowed in law, but there are exceptions even in the doctrine of corporate liability. It is known that a company does not run on its own but on minds of organs of the company who in law is the mind of the company. These are members of the company and organisations of the company, be it private or public. See Wagbatsoma v FRN (2015) LPELR – 24649 (CA); Aladi v Alic Nig Ltd [2010] 19 NWLR (PT. 1226) 111. In FDB Financial Services Ltd v Desoza [2002] 8 NWLR (PT. 663) 170 at 173, the Court considering the power of a Court to lift the veil of incorporation held thus:

“The consequences of reorganizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil. However, since a statue will not be allowed to be used as an excuse to justify illegalities or fraud, it is a quest to avoid the normal consequences of the statute which may result in grave injustice, that the Court as occasion demands have to look behind or preserve the corporate veil.”

On whether a company is an artificial person that can only act through its human agent, the apex Court per ANIAGOLU, JSC in the case of Trenco (Nig) Ltd v African Real Estate & Investment Co. Ltd & Anor (1978) LPELR -264 (SC) held that:

“But a company, although a legal person, is an artificial one which can only act through its human agents and officers. VISCOUNT HALDANE L.C. in S Lennard Carrying Co. v. Asiatic Petroleum Co. Ltd (191 ) A.C. 705 stated:

“My Lords, a corporation is an abstraction, it has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purpose may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”

Legally the procedure is; it is only after due evaluation of (evidence) acts of the company and that of the directors; (which is not in dispute that the Appellant is) at that point, the Lower Court shall determine liability of parties. I again think, it’s premature at this stage to make an apt decision, in the light of explanations of knowledge of receipt of huge sums where exhibits show Appellant as one of the signatories to the company accounts. I definitely disagree with the heavy submissions of Appellant counsel on this issue; it is part of our laws in Nigeria, that a director or officer of a company can be held vicariously liable for criminal acts of a company. There is no gain saying that Section 286 ACJL does not operate in vacuum. The conditions therein are that:

“…the Court trying the case discharges or acquits any of the Appellants and the presiding Judge or magistrate is of the opinion that the accusation against any of them was false, frivolous or vexatious, the judge or magistrate may for reasons to be recorded, direct that compensation be paid as the Court shall deem fit to the Appellant or any of them by the person upon whose complaint the accused was charged.” (underlining mine)

From the above, the trial Court has not discharged or acquitted the defendant and is not of any opinion that the counts are false, therefore it cannot invoke this provision; it is premature at this stage. The Appellant has in its possession huge sums that has not been returned and are no longer in the Appellant’s bank statement of accounts tendered by PW2, 3, 4 nor have the complainants been paid the said returns on investment and have moved out of their known address to avoid been forced to refund. These acts are highly suspicious to the common man and therefore call for explanations there is indeed a prima facie case established against the Appellant herein. It is also important to state at this point that it is premature to review evidence upon this ground to discharge or acquit the Appellant also it does not flow or arise from the Ruling of the Court. See Nwankwo v EDCSUA [2007] 5 NWLR (PT. 1027) 77; Akibu v. Oduntan [2000) SC (Pt. 11) 106. The Appellant further contended that the transaction is contractual. What is in issue and evidence led is to the point that what started as a civil business trampled on the requirement of the law under Sections 58(1) & 59(a) & (b) of BOFIA which the prosecution contends, it is as illegal and such acts have been criminalized. Furthermore the element of fraud on huge monies had received diverted and has not been refunded under Section 516, 383(1)& (2) & 390 (9) of the Criminal Code till the date of trial introduced the element of fraud which in its self is a codified offence and falls under other offences under our laws, these are far removed from the realm of civil transaction or gentleman’s agreement and now in the region of criminality in form of a scheme which the Appellant has a compulsory task of explaining to the satisfaction of the Court. Therefore until it is explained, neither the Lower Court nor this Court can make any definite pronouncement since it is at a no case submission stage.

Likewise this Court is unable to evaluate the case and discharge/acquit the accused based on the evidence adduced so far. It therefore will be overreaching to invoke the provisions of the ACJL, 2011 to make an order of compensation. In Agbo & Ors v State (2013) LPELR – 20388 (SC), FABIYI, JSC held that:

“It is now basic that in considering a submission of no case to answer, it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The Court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person.”

As for the issue of arrest and detention of the Appellant’s director, the Appellant ought to have taken out a summons under the Fundamental Rights Enforcement Procedure Rules, 2009 to contend this and not raise it in the no case submission or on appeal. A different cause of action applies in this issue having not arisen from the Lower Court, this Court being an appellate Court cannot dabble therein. See Ngwu & Ors v Onuigbo & Ors (1999) LPELR – 1992 (SC) where ONU, JSC held at page 12, paras A – E that:

“…an appeal Court does not inquire into disputes, it inquiries into the way in which disputes have been tried and decided…” Per OBASEKI-ADEJUMO, JCA. read in context

B. CRIMINAL LAW AND PROCEDURE
2. No Case Submission –What is required of a Court at the stage of a no-case submission
Need for Courts to be brief while ruling on a no case submission

It is trite that a no case submission means that there is no evidence on which the Court could convict. See Ohuka & Ors v State (No. 2) (1988) LPELR – 2362 (SC); Tongo & Anor v COP [2007] LPELR -3257 (SC).

Also in Emedo & Ors v State (2002) LPELR – 1123 (SC), page 9, para D, MOHAMMED, JSC held that:

“In considering a submission of no-case, the correct procedure is to write a brief ruling and make no observation on facts – Bello v The State (1967) NMLR 1.”

This consensus is for Rulings on no case submission to be brief. I have read the Ruling complained about, definitely it’s not a time to evaluate evidence and analyze exhibits; it is the opinion of the learned trial judge that more facts have to be adduced to make a definite finding.

The Lower Court held thus:

“In my view, the evidence of the said witnesses has made out a prima facie case in respect of said charges. A prima facie is a ground to proceed. It is not the same as proof which comes later when the Court has to evaluate the evidence and decide whether the charges have been proved. I would also say that the evidence of the prosecution witness is not so discredited and neither is it not so manifestly unreliable that a reasonable Court or Tribunal cannot rely on same.”

The above has covered the issues raised and if any evidence was discredited or manifestly unreliable, it would have called for more details in evaluating same. This was the view of this Court in Okafor v State (2014) LPELR – 24477(CA); Fagoriola v FRN (2010) LPELR- 4139(CA). ABIRU, JCA puts it more clearly in FRN v Nuhu & Anor (2015) LPELR – 26013 (CA), when he held at page 22, paras B-E thus;

“At the stage of a no case submission at the close of the prosecution’s case what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment. A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of evidence led – Tongo v COP [2004] 12 NWLR (PT. 1049) 525 and Ekwunugo v FRN [2008] 15 NWLR (PT.1111) 630.”

The Ruling though not more than a page meets all requirement of a no case submission, it is not the same standard as an ordinary interlocutory Ruling on reliefs. Therefore I resolve this issue in favor of the Respondent. Per OBASEKI-ADEJUMO, JCA. read in context

C. EVIDENCE
3. Prima Facie Case – Definition of prima facie case and when prima facie case is made out
Meaning of a prima facie case; when will same be said to have been made out

In Ontario Oil & Gas Nig Ltd v FRN (2015) LPELR – 24651 (CA), this Court defined prima facie case:

“Prima facie case has been defined in plethora of cases. In Salzgitter STAHL GMBH v Tunji Dosunmu Industries Ltd [2010] 11 NWLR (PT.1206) 589, the Supreme Court states thus:

“simply put the phrase i.e. “prima facie” (which applies as a rule of onus of proof in the law of evidence) means as per evidence which if accepted, appears to be sufficient to establish a fact or sustain a Judgment unless rebutted by acceptable evidence to the contrary…”

At page 76, paras E – G this Court also held thus:

“The proof of evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the accused and where there is ground to proceed, it is said that a prima facie case has been established. See Ugbane v FRN [2010] LPELR – 4945 and Okoro v State [1988] 5 NWLR [PT. 94] 225. Generally, there must be evidence linking the accused to the alleged crime in such a way that an explanation is required. At this stage, it is not evidence to convict but to call for explanation from the accused. The question is whether from the proof of evidence a prima facie case is made out?

In the light of the above, the evidence needed is not to prove that the act has been committed.

To succeed in a charge of conspiracy, the prosecution must prove the ingredients as held by KEKERE-EKUN, JSC in Yakubu v The State [2014] LPELR – 22401 (SC):

i. “An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;

ii. Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement

iii. Specifically that each of the accused persons individually participated in the conspiracy.”

Counts 2 & 4 are in respect of stealing by conversion, in examining the complaints of the Appellant, stealing has been defined in the case of Oyebanji v The State (2015) LPELR- 24751 (SC) as GALADIMA, JSC stated that:

1. 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.

2. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following interests:

(a) an intent to permanently deprive the owner of the thing of it;

(b) an intent to permanently deprive any person who has any special property in the thing of such property;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(f) in the case of money, an intent to use it at will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

3. The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.”

4. In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is holder of the power of attorney for the disposition of it, or is authorized to dispose of the property.”

See Aruna & Anor v State (1990) LPELR – 568 (SC); Okobi v State (1984) LPELR – 2453 (SC).

In the rest of the above definition when compared with the prosecution testimony it is obvious that it established that the said sum in question is capable of being stolen and there is an admission by PW1 & PW2 that sum was received by the Appellants company of which the Appellant is alter ego and same was utilized but nothing was shown as credited to the complainers (proceeds of investment) see Exhibits P13 – 15 statements of account of the companies. Therefore there is a link and all that suffices is for the Appellant to provide answers to the contrary. It is thereafter that the evaluating of evidence can be done by the Lower Court. I am satisfied that the Appellant has some explanation to offer. In SUBERU v STATE [2010] 18 NWLR (PT. 1198) 586 at 610 where it was clearly stated that a prima facie case must be distinguished from the proof of guilt. Therefore in my view the Appellant’s argument amounts to proof of guilt which is premature at this stage and would certainly amount to evaluation which is not parameters for a Ruling in a no case submission. The Court had held that the question whether the Court believes or does not believe the evidence adduced by the prosecution does not arise at the stage of a no case submission. Counts 1 & 3 also are in respect of conspiracy to steal of which agreement is a determinant but the prosecution witnesses linked the knowledge or presence of the Respondent in the receiving and deposits, returns of funds. Therefore it requires explanation and any attempt amounts to evaluation. Per OBASEKI-ADEJUMO, JCA. read in context

4. Calling of Witnesses – The position of the law on effect of failure to call certain witnesses
Whether in a criminal trial, a host of witnesses is required by the prosecution to achieve a proof beyond reasonable doubt

On the issue of failure to call a particular witness (issue 5), the apex Court has since settled the issue in Ochiba v State (2011) LPELR- 8245 (SC), per ADEKEYE JSC, 36, paras D – E:

“On the issue of witnesses, the prosecution has a duty to name all the witnesses it intends to call at the back of an information, where it decided not to call any of those witnesses, such witnesses should be produced for the purpose of cross-examination if available. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness – as there is nothing stopping the accused himself from calling such witnesses when defence opens. Okoroji v. State [2002] 5 NWLR (PT. 758), 21. It is the prerogative of the prosecution to call witnesses relevant to its case.”

See also Attah & Ors v State (2009) LPELR – 8802 (CA), per OREDOLA, JCA, 37 – 38, paras D – A on the burden of proof on the prosecution in a criminal trial:

“It is trite that it is the sole duty of the prosecution to prove its case beyond reasonable doubt by calling all material witnesses. This onus probandi must be duly satisfied and once this has been done, it does not matter if some potential or likely witnesses were not called by the prosecution. After all the prosecution is not duty bound to call available witnesses. It is a fact of life that if a part suffices the whole is not required…”

There is a letter at page 158 in vol 1 of the record from Nospetco Oil & Gas Ltd to ‘esteemed investor’ and paragraph 8 of the letter states that:

“In the meantime, we are still paying returns. Apparently, payments are slow but this owes to the slow and cumbersome process of writing individual cheques for investors. We are none-the-less committed to a continuous payment of returns to investors.”

Furthermore the Appellant in the records appear as signatory to the accounts and was at one period the Managing Director/CEO. He was an alternate signatory. The complaints to the EFCC itemized various payments of monies into different accounts belonging to the company. Page 409 vol 2 the evidence of Mr. Ugoakaeze is to the effect of investment by Rivotel International Ltd and returns thereon, Exhibits P6, 7 , 9 & 10 and the withdrawal of funds and inability to repay the sum. The various activity of the accounts Exhibits P13 (a, b & c), P14 & 16 gives a questionable indication of a collecting outfit while the core business is oil and gas. While at page 454, the EFCC investigating officer Afanda Emmanuel confirmed that the Appellant was not registered with the Securities and Exchange Commission (SEC). From the above, the Appellant has to explain how, what and why the several deposits and use of the name ‘investor” which connotes something different in the financial world. Most importantly if it has the approval to carry out such if not whether he falls under any legal exception under Section 66 of BOFIA. I am satisfied that the prosecution has adduced enough evidence at this stage to compel an explanation from the Appellant who has been linked to the knowledge of the deposits. It does not have to be the evidence of a particular witness. The proof of evidence disclosed a prima facie case when it is such that if uncontradicted and believed, will be sufficient to prove the case against the accused and where there is ground to proceed; it is in this case said that a prima facie case has been established. Per OBASEKI-ADEJUMO, JCA. read in context

D. GOVERNMENT AGENCY
5. Economic and Financial Crimes Commission – The power of the Economic and Financial Crimes Commission to institute criminal proceedings without fiat of the Attorney General
Whether the Economic and Financial Crimes Commission can with or without a fiat of the Attorney-General, prosecute cases in any Court in Nigeria

The crux of this issue is one of jurisdiction not vested in the Court based on counts 1-5 because the Information was not properly initiated; that there was no fiat/consent of the Attorney General of the Federation to prosecute. This position has since been settled by the apex Court in several decisions. Most importantly no objection has been raised at the arraignment till the no case submission. The Appellant is raising same on appeal. See FRN v Adewunmi [2007] LPELR 1273 (SC) (PT.111) 30. In Amadi v FRN [2008] 18 NWLR (PT.119) 259 at 276 the Court held that the EFCC is a common agency for both the Federal and the State economic and financial crimes, as such, it qualified as any other authority to institute criminal proceedings under Section 211(1)(b) of the 1999 Constitution. See also NYAMEN v FRN (2013) LPELR – 20288 (CA) where the Court held that the implication that the EFCC does not require the fiat of the Attorney General of Lagos State to prosecute the Appellant means that by virtue of the powers conferred on the commission it authorizes them to prosecute cases in any Court in Nigeria. The necessary implication is that with or without fiat, the EFCC are at liberty to prosecute criminal matters in any Court in Nigeria for any offence which has the complexion or coloration of economic and financial crimes, including the criminal or penal code. In AKINGBO A v FRN (2010) LPLER-8402 (CA), this Court clearly held that it is only the Attorney General of Lagos State that can complain about the exercise of power by EFCC, but definitely not the Appellant herein. Furthermore it held that the EFCC is expressly conferred with power under Sections 6(m), 7(2)(f), 13(2) & 19(1) of the EFCC Act to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crime even under the criminal code. The prosecutorial power of the EFCC to institute criminal proceedings is a delegated power which in my candid opinion cannot be sub-delegated based on the principle expressed in the Latin maxim “Delegatus Non Potest Delegare” meaning no delegated power can further be delegated. In Saraki v FRN (2016) LPELR – 40013 (SC) the apex Court reasoned reiterating its earlier decision in Comptroller NPS v. Adekanye (Infra), the Supreme Court per MUHAMMAD), JSC held thus:

“In any event, it is not the usual practice of the Courts to demand letters of authority authorising a counsel such as Mr. Hassan to sign the charge before the Tribunal. In fact, there is no statutory duty imposed on the person filing a charge to produce any evidence of his authority at the time of filing the charge or at arraignment…In Nnakwe v State [2013] 18 NWLR (PT. 1385) 1 at 27, this Court observed:

“The same principle was earlier applied by this Court in the case of comptroller NPS v Adekanye (No.1) (2002) 15 NWLR (PT. 790) 318… “

My Lords, the presumption of regularity is sacrosanct. Where a legal practitioner informs the Court that he was authorized (as did Mr. Hassan), the Court/Tribunal must believe the counsel, it is left for the party challenging him to prove otherwise…”

Even if conceded that the Respondent did not obtain a written consent of the Attorney General of the Federation, the questions that come to mind is whether the Appellant can challenge the authority of the Respondent. The answer lies in the case of Nnakwe Vs State [2013] LPELR 20941 (SC) where OGUNBIYI, JSC held that:

“Decided authorities of this Court have also held out that where a counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party. Furthermore, it has also been sufficiently emphasised by this Court that the competence or otherwise of a private legal practitioner and his authority to prefer a charge on behalf of the Attorney General of the Federation cannot be questioned by any other person.”

In the light of the above, it also follows that it does not lie in the mouth of the Appellant to query the presence/absence of the written fiat of the Attorney General of the Federation. It is the duty and prerogative of the Attorney General of the Federation. Per OBASEKI-ADEJUMO, JCA. read in context

E. PRACTICE AND PROCEDURE
6. Practice Direction – How practice directions have the same force of law as rules of Court
Effect of non-compliance with practice direction in a proceeding

On the issue of compliance with the practice direction of this Court, practice directions have the same force of law as rules of Court.

In the case of Ugo v Ummuna [2018] 2 NWLR 108 SC, it was held that rules of Court include practice directions. However, in the event of a conflict between the two, the rule must prevail and I find there is conflict herein. See Okereke v Yar’adua (Supra), per TABAI, JSC. The Appellant simply did not comply with the practice direction even though they are meant to be obeyed. In the case of Osafile & Anor v Odi & Anor (1990) LPELR – 2783 (SC) the apex Court held that:

“…the “practice” of a Court ordinarily means the rules that make or guide the cursus curiae, and regulates procedure, within the precincts of the Court. So, in the technical sense, rules of practice denote the mode of proceedings by which a legal right is determined and enforced, as distinguished from the law, which gives or defines the right. See LUSH, L.J. in Poyser v Minors L.R. 7 Q.B.D. 325 at 333; Lever Brothers Ltd v Knede & Bagnall (1937) 2 K.B. 87; and Re Shoe Smith (1938) 2 K.B. 637. It does not include the mode or material for the proof of that right.”

The length of the Appellant’s brief is simply an irregularity which will not defeat the justice of the case. See the case of Osigwe v PSPLS Management Consortium Ltd & Ors (2009) LPELR – 2807 (SC) where the apex Court, per MUSDAPHER, JSC held that:

“Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. See Saude v Abdullahi [1989] 4 NWLR (Pt. 116) 388.” Per OBASEKI-ADEJUMO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OBASEKI-ADEJUMO, JCA


This is a criminal appeal arising from the High Court of Lagos State in suit no: ID/212C/2011 in a no case submission bench ruling decision on 20th September, 2017 coram JOSE, J.

The Defendants/Appellant was arraigned on a five count amended Information dated 21st September, 2011 consisting of conspiracy to steal, stealing and collecting deposits from the public without a license from the Central bank of Nigeria.

The Appellant pleaded not guilty to the charges and after the Prosecution/Respondent closed its case, the Appellant made a no case submission in writing to which the Respondent replied and which was overruled and dismissed on the same day it was argued. It is against this that the Appellant filed a Notice of Appeal on 7th November, 2017.

The Appellant filed a brief of argument on 22nd of November, 2017 and a reply brief on the 14th of December, 2017; settled by Abubakar Shamsudeen; M. Bamidele; Grant Onwuka and H.A. Abdullahi all of Rickey Tarfa & Co. wherein they formulated 8 issues for determination thus:

i. Whether the one page ruling/decision of the trial Court which lacks all the essential ingredients of a valid decision is not a nullity.

ii. Whether in view of Section 65 (3) of the Banks and Other Financial Institutions Act, Laws of the Federation of Nigeria, 2004, which mandatorily required a fiat/written consent of the Honourable Attorney General of Federation before filing of information as well as the failure of the Prosecution to tender such a fiat/written consent of the Honourable Attorney General of Federation; the evidence proffered so far by the Prosecution are not a nullity.

iii. Whether the prosecution established every prima facie ingredient of the offence of stealing by conversion.

iv. Whether the Prosecution established every prima facie ingredient of the offence of conspiracy to steal between the Appellant and the Appellant in the sister appeal.

v. Whether a staff from the Central Bank of Nigeria is not a vital, key, relevant and very important witness for the Prosecution to show a prima facie case of the allegation of collecting deposit without the consent of the Central Bank of Nigeria.

vi. Whether in view of Section 58(1), 59 (a-b) and 66 of the Banks and Other Financial Institutions Act, Laws of the Federation of Nigeria, 2004, the Prosecution has been able to show that the act of payment of money through banks to the Appellant in the sister appeal amounts to collecting deposit to warrant the Appellant to defend the information.

vii. Whether the Appellant who is a Director of the Appellant in the sister appeal could be criminally held liable if any in his appeal.

viii. Whether having regard to the innovated provision of Section 286 of Administration of Criminal Justice Law of Lagos, 2015., the Appellant who ought to be discharged and acquitted ought not to be compensated by Rivotel International Ltd and Gladys Cho and Associate Ltd who reported a contractual matter to the Economic and Financial Crimes Commission.

The Respondent on the other hand filed a Respondent brief on 6th December, 2017; settled by I.O. Daramola; O.O. Oddiri; A.M. Ocholi; S.T. Ola and G.G. Chia-Yakua all of the EFCC. They formulated a single issue thus:
Whether from the fact and circumstances of this case, the trial Court erred in law when it held that the Appellant’s application is lacking in merit.

For the determination of this appeal, the Appellant has put forward specific issues to be answered unlike the Respondent’s issue which is general and broadly encompassing, I shall adopt the 8 issues of the Appellant and refer to the Respondent’s where necessary.

ISSUE ONE

The Appellant’s complaint is on the one page Ruling which in his view does not qualify as a judgment within Section 318 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Appellant’s counsel argued that the Ruling did not satisfy the requirements of a valid judgment. He referred to N.I.I.T. Zaria v Dange [2008] 9 NWLR (PT.1091) 127 at 148, paras B-F; Ovunwo v Woko [2011] 17 NWLR (Pt 1277) 727 at 546, para C; Okafor v State [2016] 4 NWLR (Pt.1502) 248 at 265 – 267; paras H – A; FRN v Amah [2017] 3 NWLR (PT 1551] 39; amongst other cases all in support of the complaint that the Ruling did not consider the issues raised nor aspect of the evidence of the witnesses which disclosed a prima facie case. Counsel argued that the Ruling was academic/theoretical in nature and made no pronouncement on the law.

The Respondent in reply referred to case law to wit Uzoagba V. COP [2014] 5 NWLR (PT.1401) 441 at 456, dictum of RHODES VIVOUR, JSC in paras D – F that in a no case ruling, a trial Court ought to keep it brief and to keep it lengthy is to wonder into prohibited areas. He referred to Section 240 (1) of the ACJA, 2015 and submitted that the Respondent made out a prima facie case in line with the ACJA.

The Appellant’s counsel in his reply brief distinguished the cases cited as inapplicable and reiterated the Appellant’s brief.

RESOLUTION

It is trite that a no case submission means that there is no evidence on which the Court could convict. See Ohuka & Ors v State (No. 2) (1988) LPELR – 2362 (SC); Tongo & Anor v COP [2007] LPELR -3257 (SC). Also in Emedo & Ors v State (2002) LPELR – 1123 (SC), page 9, para D, MOHAMMED, JSC held that:

“In considering a submission of no-case, the correct procedure is to write a brief ruling and make no observation on facts – Bello v The State (1967) NMLR 1.”

This consensus is for Rulings on no case submission to be brief. I have read the Ruling complained about, definitely it’s not a time to evaluate evidence and analyze exhibits; it is the opinion of the learned trial judge that more facts have to be adduced to make a definite finding. The Lower Court held thus:

“In my view, the evidence of the said witnesses has made out a prima facie case in respect of said charges. A prima facie is a ground to proceed. It is not the same as proof which comes later when the Court has to evaluate the evidence and decide whether the charges have been proved. I would also say that the evidence of the prosecution witness is not so discredited and neither is it not so manifestly unreliable that a reasonable Court or Tribunal cannot rely on same.”

The above has covered the issues raised and if any evidence was discredited or manifestly unreliable, it would have called for more details in evaluating same. This was the view of this Court in Okafor v State (2014) LPELR – 4477(CA); Fagoriola v FRN (2010) LPELR – 4139(CA).

ABIRU, JCA puts it more clearly in FRN v Nuhu & Anor (2015) LPELR – 26013 (CA), when he held at page 22, paras B-E thus;

“At the stage of a no case submission at the close of the prosecution’s case what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment.

A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of evidence led – Tongo v COP [2007] 12 NWLR (PT. 1049) 525 and Ekwunugo v FRN [2008] 15 NWLR (PT.1111) 630.”

The Ruling though not more than a page meets all requirement of a no case submission, it is not the same standard as an ordinary interlocutory Ruling on reliefs. Therefore I resolve this issue in favor of the Respondent.

ISSUE TWO

The Appellant’s counsel in contending that there was no fiat of the Attorney General of the Federation before the information was filed by virtue of Section 65(3) of BOFIA LFN, 2004 submitted that the crux of this appeal is the alleged collection of N180,750,000.00 (One Hundred and Eighty Million, Seven Hundred and Fifty Thousand Naira) and N360,000,000.00 (Three Hundred and Sixty Million Naira) by the Appellant for investment from Rivotel international Ltd as well as Gladys Cho & Associate Ltd respectively.

That it is in respect of the alleged collection of the sums that counts 1-5 for conspiracy to steal, stealing and collecting deposit of the alleged sum stolen without the consent of the CBN were preferred in this appeal. While the 5th count is on the alleged collection of the sums in counts 1, 2, 3 & 4 as deposits from the public without a license from the CBN which is contrary to Section 58(1) and 59(a-b) of the BOFIA Act LFN, 2004 and further contended that Section 65 (3) of the BOFIA Act specifically and mandatorily provides that no prosecution can be instituted without the consent in writing of the Attorney General of the Federation. Counsel contended that no fait was tendered in proof of this. He relied on the cases of Ezeze v. State [2004] 14 NWLR (Pt. 894) 491 at 502, paras A – H; Madukolu v Nkemdilim (1962) 1 ALL NLR (Pt. 2) 581 at 589-590; Oloruntoba-Oju & Ors v ABDUL-Raheem & Ors [2009] 13 NWLR (Pt. 1157) (SC) 83; Sonoma v IGP (2013) LPELR 20833 (CA) 32 – 33, para G.

Appellant’s counsel submitted that the condition precedent was not fulfilled before the action was filed and therefore vitiates the action. He contended that without the fiat, counts 1-5 was anullity and the evidence thereon must collapse.

Respondent counsel submits in reply to the above that the Lower Court was right in its holding that there was a prima facie case made out. That Section 240(1) of the ACJA, 2015 is to the effect that if it appears to the Court that a prima facie case has been made out the defense shall be called upon. In this regard, he submits that 6 witnesses made out a prima facie case against the Appellant, he referred to page 382 – 475 of the record and that the Appellant was a party to the meetings between parties and also a signatory to all the accounts in issue as well as the alter ego of the company.

RESOLUTION

The crux of this issue is one of jurisdiction not vested in the Court based on counts 1-5 because the Information was not properly initiated; that there was no fiat/consent of the Attorney General of the Federation to prosecute.

This position has since been settled by the apex Court in several decisions. Most importantly no objection has been raised at the arraignment till the no case submission. The Appellant is raising same on appeal. See FRN v Adewunmi [2007] LPELR – 1273 (SC) (PT.111) 30.

In Amadi v FRN [2008] 18 NWLR (PT.119) 259 at 276 the Court held that the EFCC is a common agency for both the Federal and the State economic and financial crimes, as such, it qualified as any other authority to institute criminal proceedings under Section 211(1)(b) of the 1999 Constitution. See also Nyamen v FRN (2013) LPELR – 20288 (CA) where the Court held that the implication that the EFCC does not require the fiat of the Attorney General of Lagos State to prosecute the Appellant means that by virtue of the powers conferred on the commission it authorizes them to prosecute cases in any ourt in Nigeria. The necessary implication is that with or without fiat, the EFCC are at liberty to prosecute criminal matters in any Court in Nigeria for any offence which has the complexion or coloration of economic and financial crimes, including the criminal or penal code.

In Akingbola v FRN (2012) LPLER-8402 (CA), this Court clearly held that it is only the Attorney General of Lagos State that can complain about the exercise of power by EFCC, but definitely not the Appellant herein. Furthermore it held that the EFCC is expressly conferred with power under Sections 6(m), 7(2)(f), 13(2) & 19(1) of the EFCC Act to initiate criminal proceedings in any Court in Nigeria for any offence bordering on economic and financial crime even under the criminal code.

The prosecutorial power of the EFCC to institute criminal proceedings is a delegated power which in my candid opinion cannot be sub-delegated based on the principle expressed in the Latin maxim “Delegatus Non Potest Delegare” meaning no delegated power can further be delegated.

In SARAKI v FRN (2016) LPELR – 40013 (SC) the apex Court reasoned reiterating its earlier decision in COMPTROLLER NPS v. ADEKANYE (infra), the Supreme Court per MUHAMMAD), JSC held thus:

“In any event, it is not the usual practice of the Courts to demand letters of authority authorising a counsel such as Mr. Hassan to sign the charge before the Tribunal. In fact, there is no statutory duty imposed on the person filing a charge to produce any evidence of his authority at the time of filing the charge or at arraignment…In Nnakwe v State [2013] 18 NWLR (Pt. 1385) 1 at 27, this Court observed:

“The same principle was earlier applied by this Court in the case of Comptroller NPS v Adekanye (No.1) (2002) 15 NWLR (PT. 790) 318… “My Lords, the presumption of regularity is sacrosanct. Where a legal practitioner informs the Court that he was authorized (as did Mr. Hassan), the Court/Tribunal must believe the counsel, it is left for the party challenging him to prove otherwise…”

Even if conceded that the Respondent did not obtain a written consent of the Attorney General of the Federation, the questions that come to mind is whether the Appellant can challenge the authority of the Respondent. The answer lies in the case of Nnakwe Vs State [2013] LPELR 20941 (SC) where OGUNBIYI, JSC held that:

“Decided authorities of this Court have also held out that where a counsel announces appearance on behalf of a party in any matter, the authority to challenge such representation only lies with the same party.

Furthermore, it has also been sufficiently emphasised by this Court that the competence or otherwise of a private legal practitioner and his authority to prefer a charge on behalf of the Attorney General of the Federation cannot be questioned by any other person.”

In the light of the above, it also follows that it does not lie in the mouth of the Appellant to query the presence/absence of the written fiat of the Attorney General of the Federation. It is the duty and prerogative of the Attorney General of the Federation.

In the light of the above stand of the apex Court, I am unable agree with the submissions of the Appellant’s counsel, this issue therefore resolved in favour of Respondent.

ISSUE THREE (3 & 4)

This issue is in respect of the 2nd and 4th count, the 2nd count is for allegedly stealing of the sum of N360,000,000.00 property of Gladys Cho & Associates Ltd by fraudulent conversion, while the 4th count is for the sum of N180,750,000.00 property of Rivotel International Ltd all contrary to Sections 383(1), (2)(f) & 390(9) of the Criminal Code Cap C17 Vol. 2 Laws of Lagos state, 2003 (as amended). Appellant’s counsel submitted that at the trial of the prosecution’s case there were conflicts in the evidence in respect of the exact sum said to be stolen. That the witnesses gave different amount in the face of PW1 & PW2 having received about N99million naira. Counsel argued that an addition of the figure in Exhibit P13, P14 & P16 do not add either separately or in total to the exact figure alleged to have been converted. He further argued that the relationship between the parties is contractual which was frustrated by the actions of the Federal Government and its agents and that fraudulent conversion was not proved, instead it was in evidence that they were duly registered by Department of State Resources and the Corporate Affairs Commission. He referred to Ojiko v IGP (1956) 1 NSCC 55 that there was no proof that the money was diverted because it was used for the purpose for which it was intended.

Counsel also submitted that the counts in 1 & 3 also was affected in that they were not proved by the prosecution he cited Yakubu v. FRN [2009] 14 NWLR (PT.1160) 151. And that they failed to prove conspiracy which he argued is usually proved by inference but that inference cannot be made out in vacuum. He relied on FRN v Ibrahim [2015] 4 NWLR (PT.1450) 411. Appellant’s counsel submitted that by virtue of Section 63- 65 of CAMA, a company and director cannot conspire because they are one and the same. He referred to FRN v Amah [2017] 3 NWLR (PT. 155) 139 at 161, paras G – H that therefore the charges ought to be struck out and the Appellant not asked to defend same. Appellant’s counsel added that the action of the Appellant herein is that of the Appellant in the sister appeal and that the contractual relationship between the Appellant in the sister appeal and the complainants for oil and gas business is not unlawful and the Appellant in the sister appeal did not carry out the transaction in an unlawful manner. Counsel contended that the prosecution failed to show that there was common intention by the Appellant to steal.

Respondent’s counsel asked this Court to discountenance the arguments of the Appellant. That they amount to evaluating evidence.

RESOLUTION

In Ontario Oil & Gas Nig Ltd v FRN (2015) LPELR – 24651 (CA), this Court defined prima facie case:

“Prima facie case has been defined in plethora of cases. In Salzgitter Stahl GMBH v Tunji Dosunmu Industries Ltd [2010] 11 NWLR (PT.1206) 589, the Supreme Court states thus: “simply put the phrase i.e. “prima facie” (which applies as a rule of onus of proof in the law of evidence) means as per evidence which if accepted, appears to be sufficient to establish a fact or sustain a Judgment unless rebutted by acceptable evidence to the contrary…”

At page 76, paras E – G this Court also held thus:

“The proof of evidence discloses a prima facie case when it is such that if un-contradicted and if believed, will be sufficient to prove the case against the accused and where there is ground to proceed, it is said that a prima facie case has been established. See Ugbane v FRN [2010] LPELR – 4945 and Okoro v State [1988] 5 NWLR [PT. 94] 225. Generally, there must be evidence linking the accused to the alleged crime in such a way that an explanation is required.

At this stage, it is not evidence to convict but to call for explanation from the accused. The question is whether from the proof of evidence a prima facie case is made out?”

In the light of the above, the evidence needed is not to prove that the act has been committed.

To succeed in a charge of conspiracy, the prosecution must prove the ingredients as held by KEKERE-EKUN, JSC in Yakubu v The State [2014] LPELR – 22401 (SC):

i. “An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means;

ii. Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement

iii. Specifically that each of the accused persons individually participated in the conspiracy.”

Counts 2 & 4 are in respect of stealing by conversion, in examining the complaints of the Appellant, stealing has been defined in the case of Oyebanji v The State (2015) LPELR- 24751 (SC) as GALADIMA, JSC stated that:

1. 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.

2. A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following interests:

(a) an intent to permanently deprive the owner of the thing of it;

(b) an intent to permanently deprive any person who has any special property in the thing of such property;

(c) an intent to use the thing as a pledge or security;

(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;

(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;

(f) in the case of money, an intent to use it at will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.

3. The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.”

4. In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is holder of the power of attorney for the disposition of it, or is authorized to dispose of the property.”

See Aruna & Anor v State (1990) LPELR – 568 (SC); Okobi v State (1984) LPELR – 2453 (SC).

In the rest of the above definition when compared with the prosecution testimony it is obvious that it established that the said sum in question is capable of being stolen and there is an admission by PW1 & PW2 that sum was received by the Appellants company of which the Appellant is alter ego and same was utilized but nothing was shown as credited to the complainers (proceeds of investment) see Exhibits P13 – 15 statements of account of the companies. Therefore there is a link and all that suffices is for the Appellant to provide answers to the contrary. It is thereafter that the evaluating of evidence can be done by the Lower Court. I am satisfied that the Appellant has some explanation to offer.

In Suberu v State [2010] 18 NWLR (PT. 1198) 586 at 610 where it was clearly stated that a prima facie case must be distinguished from the proof of guilt.

Therefore in my view the Appellant’s argument amounts to proof of guilt which is premature at this stage and would certainly amount to evaluation which is not parameters for a Ruling in a no case submission. The Court had held that the question whether the Court believes or does not believe the evidence adduced by the prosecution does not arise at the stage of a no case submission.

Counts 1 & 3 also are in respect of conspiracy to steal of which agreement is a determinant but the prosecution witnesses linked the knowledge or presence of the Respondent in the receiving and deposits, returns of funds. Therefore it requires explanation and any attempt amounts to evaluation.

I therefore resolve issue three (3 & 4) in favour of the Respondent.

ISSUE FOUR (5 & 6)

Appellant’s counsel submitted that in view of the allegation that the consent of the CBN is required as disclosed on the face of the information, that it is un-disputably clear that the evidence of a staff of the CBN is very important. He submitted that without the evidence from the CBN, the allegation of collection of deposit without the consent of the CBN in the counts of the amended information cannot be sustained at all. Counsel relied on the cases of State v Nnolim [1994] 5 NWLR (Pt. 345) 394 at 406, para D; Akono v The Nigerian Army [2000] 14 NWLR (PT. 687) at 331, paras F – G; COP v Amuta [2017] 4 NWLR (Pt 1556) 379 at 391, paras B – E, 401, paras B-D and contended that the failure to call any staff from the CBN is fatal to the prosecution’s case as no prima facie case has been established of the allegation of collecting deposit without the consent of the CBN.

The Respondent counsel submitted that it is not bound to call any witness and that the law simply requires that evidence should be led to establish an essential element of the offence and cited Oguonzee v State [1998] 5 NWLR (PT. 551) 521.

Appellant’s counsel further contended that in view of Sections 58, 59 (a-b) & 66 of BOFIA Act, the prosecution has not been able to show that the act of payment of money through banks to the Appellant in the sister appeal amounts to collecting deposit to warrant the Appellant to defend the information. Counsel submitted that the ingredients of the offence “other financial business” is recurrent in the Sections and is a key ingredient and that the “other financial business” does not include collecting deposits from the public. He cited Section 66 (interpretation section) of the BOFIA Act to submit that the businesses as listed in the said section as carried on by the other financial institution are the “other financial business” within the context of Sections 58(1) & 59 (a-b) of BOFIA.

RESOLUTION

On the issue of failure to call a particular witness (issue 5), the apex Court has since settled the issue in Ochiba v State (2011) LPELR – 8245 (SC), per ADEKEYE JSC, 36, paras D – E:

“On the issue of witnesses, the prosecution has a duty to name all the witnesses it intends to call at the back of an information, where it decided not to call any of those witnesses, such witnesses should be produced for the purpose of cross-examination if available. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness – as there is nothing stopping the accused himself from calling such witnesses when defence opens. Okoroji v. State [2002] 5 NWLR (Pt. 759), 21. It is the prerogative of the prosecution to call witnesses relevant to its case.”

See also Attah & Ors v State (2009) LPELR – 8802 (CA), per OREDOLA, JCA, 37 – 38, paras D – A on the burden of proof on the prosecution in a criminal trial:

“It is trite that it is the sole duty of the prosecution to prove its case beyond reasonable doubt by calling all material witnesses. This onus probandi must be duly satisfied and once this has been done, it does not matter if some potential or likely witnesses were not called by the prosecution. After all the prosecution is not duty bound to call available witnesses. It is a fact of life that if a part suffices the whole is not required…”

There is a letter at page 158 in vol 1 of the record from Nospetco Oil & Gas Ltd to ‘esteemed investor’ and paragraph 8 of the letter states that:

“In the meantime, we are still paying returns. Apparently, payments are slow but this owes to the slow and cumbersome process of writing individual cheques for investors. We are none-the-less committed to a continuous payment of returns to investors.”

Furthermore the Appellant in the records appear as signatory to the accounts and was at one period the Managing Director/CEO. He was an alternate signatory. The complaints to the EFCC itemized various payments of monies into different accounts belonging to the company. Page 409 vol 2 the evidence of Mr. Ugoakaeze is to the effect of investment by Rivotel International Ltd and returns thereon, Exhibits P6, 7 , 9 & 10 and the withdrawal of funds and inability to repay the sum.

The various activity of the accounts Exhibits P13 (a, b & c), P14 & 16 gives a questionable indication of a collecting outfit while the core business is oil and gas. While at page 454, the EFCC investigating officer Afanda Emmanuel confirmed that the Appellant was not registered with the Securities and Exchange Commission (SEC). From the above, the Appellant has to explain how, what and why the several deposits and use of the name ‘investor” which connotes something different in the financial world. Most importantly if it has the approval to carry out such if not whether he falls under any legal exception under Section 66 of BOFIA. I am satisfied that the prosecution has adduced enough evidence at this stage to compel an explanation from the Appellant who has been linked to the knowledge of the deposits. It does not have to be the evidence of a particular witness. The proof of evidence disclosed a prima facie case when it is such that if uncontradicted and believed, will be sufficient to prove the case against the accused and where there is ground to proceed; it is in this case said that a prima facie case has been established.

Issue four (5 & 6) are therefore resolved in favour of Respondent.

ISSUE FIVE (7 & 8)

The contention of the Appellant’s counsel in this issue is whether the Appellant who is a director of the Appellant in the sister appeal could be criminally held liable. The counsel submitted that only PW1, 2 & 6 gave evidence a little bit in respect of the Appellant. He contended that their evidence in relation to the allegation in the information of the instant appeal only goes to establish that the Appellant is a director of the Appellant in the sister appeal and that there is no other evidence of what the Appellant did or intended to do apart from acting as the director.

Counsel submitted that the action of the Appellant, if any, was done on behalf of the Appellant in the sister appeal. That if there is any liability in this appeal, the Appellant in the sister appeal and not the Appellant herein will be solely vicariously liable for the criminal act of the Appellant. He referred to the case of Agbanelo v U.B.N [2000] 7 NWLR (Pt. 666) 534 at 550, para A; Mandillas & Karaberis Ltd v IGP (1958) 1 NSCC 70 at 74, lines 25 – 40; Sections 63, 64 & 65 of the CAMA; Section 20 of the Lagos state Criminal Law, 2011.

Counsel relied on the case of Adeniji v State (1992) 4 NWLR (PT. 234) 248 to further argue that the doctrine of lifting the veil is equally not applicable in this appeal. He urged this Court to hold that the participation of the Appellant in the transaction as the director of the company cannot make the Appellant criminally liable.

On the 8th issue herein, Appellant’s counsel submitted that there is no reliable evidence from the evidence of PW1 – PW6. He referred to the cases of FRN v Ibrahim (Supra); Onagoruwa v State (Supra); FRN v Amah (Supra).

Counsel further argued that a decision upholding a no case submission amounts to acquittal of the Appellant. He cited Ubanatu v COP [2000] 7 NWLR [PT. 643) 115 and that by virtue of Section 286 of the ACJL, the Appellant ought to be compensated. He contended that the action was contractual. He referred to Saalawu Alao v Karimu Ashiru (1973) NSCC 523; A.C. (OAO) Nig Ltd v Umanah [2013] 4 NWLR (PT. 1344) 323; Balogun v Amubikahun [1989] 3 NWLR (PT.107) (SC) 18 at 30, paras C- D; Okonkwo v Ogbogu [1996] 5 NWLR (PT. 499) 420 at 435; Onyedinma v Nnite [1997] 3 NWLR (PT. 493) 333 at 346, paras D – F.

Appellant’s counsel argued that the Appellant should be compensated in the sum of N100,000,000 (One Hundred Million) as damages by each of the company who reported a contractual matter to the EFCC. He submitted that consequent upon the complaint to the EFCC, the Appellant has been arrested, detained and stands unreasonable trial from 2011 till date and that he was detained by the EFCC from 20th July, 2011 to 28th September, 2011. Counsel also complained that the business goodwill of the Appellant in the sister appeal has further deteriorated. He referred to the Affidavit in support of the Application for no case submission as well as Exhibits A & A1 attached thereto at pages 270 – 277 of the vol 1 record.

The Respondent’s counsel on the other hand urged the Court to discountenance the arguments, that it is not for the Appellant to assert that a matter is civil in nature, that it is the exclusive preserve of the Court. He relied on Nnamdi Azikiwe University v Nwafor [1999] 1 NWLR (Pt. 585) 1165 at 136; Ogboru v. Ibori [2004] NWLR [Pt. 871] 192 at 220, paras H – F.

Counsel argued that the charge relate to all the witnesses and disagreed that the Appellant be discharged and acquitted.

In the same vein, he drew the Courts attention to the fact that though this appeal is an interlocutory appeal, the Appellant’s brief is 35 pages long contrary to paragraph 8(2) Court of Appeal (Fast track) Practice directions, 2014 which provides that a brief in an interlocutory appeal must not exceed 15 pages, with Times New Roman font 14 and single spaced. He urged this Court to discountenance all subsequent pages that run foul of this provision.

In reply, Appellant’s counsel submitted that the issue of pages of the brief is not an issue which arose from any ground of appeal and that as such, the Respondent cannot validly argue same in its brief. He referred to the cases of Akinlagun v Oshoboja [2006] ALL FWLR 325 53 at 82, paras G – E; Kachalla v Banki (2006) ALL FWLR (Pt. 309) 1420 at 1432, paras B – C. Counsel further contended that the Appellant’s brief of argument is in total compliance with Order 18 Rule 6(a) of the Court of Appeal Rules, 2016 and he argued that practice directions cannot override the provision of the Rules of this Court.

He cited UNILAG v Aigoro [1985] 1 NWLR (PT. 1) 143; Okereke v Yar’adua [2008] 12 NWLR (PT. 1100) 95. Appellant contended that the Court could in the interest of fair hearing and justice use its discretion to rely on and use the Appellant’s brief. He relied on Brittania-U (Nig) Ltd v. Seplat Pet. Dev. Co. Ltd [2016] 4 NWLR (Pt. 1503] 541 at 593, paras A – E; Nwanokolo V. Kanu (2010) 6 NWLR (PT.1189) 62.

RESOLUTION

The Appellant herein has vehemently contended that he being a director cannot be held (vicariously) criminally liable for the acts or omission of the company. Permit me to refer to Section 66 (1 – 3) of the Companies and Allied Matters Act 2004 which provides that:

1. Except as provided in Section 65 of this Act, the acts of any officer or agent of a company shall not be deemed to be the acts of the company unless –

(a) The company acting through its members in general meeting, board of directors, managing director shall have expressly or impliedly authorized such officer or agent to act in the matter; or

(b) the company, acting as mentioned in paragraph

(a) of this subsection, shall have represented the officer or agent as having its authority to act in the matter, in which event the company shall be civilly liable to any person who has entered into the transaction in reliance on such representation unless such person had actual knowledge that the officer or agent had no authority or unless having regard to his position with or relationship to the company, he ought to have known of such absence of authority.

2. The authority of an officer or agent of the company may be conferred prior to any action by him or by subsequent ratification, and knowledge of such action by the officer or agent and acquiescence therein by all the members of the company or by the directors for the time being or by the members in general meeting, board of directors, or managing director; as the case may be.

3. Nothing in this section shall derogate from the vicarious liability of the company for the acts of its servants while acting within the scope of their employment.

See also Section 290 (c) of CAMA on personal liability of directors and officers:

“Where a company – with intent to defraud, fails to apply the money or other property for the purpose for which it was received, every director or other officer of the company who is in default shall be personally liable to the party from whom the money or property was received for a refund of the Money or property so received and not applied for the purpose for which it was received; Provided that nothing in this section shall affect the liability of the company itself.”

Therefore there is no gain saying that generally vicarious liability is not allowed in law, but there are exceptions even in the doctrine of corporate liability. It is known that a company does not run on its own but on minds of organs of the company who in law is the mind of the company. These are members of the company and organisations of the company, be it private or public. See Wagbatsoma v FRN (2015) LPELR – 24649 (CA); Aladi v alic nig ltd [2010] 19 NWLR (PT. 1226) 111.

In FDB Financial Services Ltd v Adesoza [2002] 8 NWLR (PT. 663) 170 at 173, the Court considering the power of a Court to lift the veil of incorporation held thus:

“The consequences of reorganizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil.

However, since a statue will not be allowed to be used as an excuse to justify illegalities or fraud, it is a quest to avoid the normal consequences of the statute which may result in grave injustice, that the Court as occasion demands have to look behind or preserve the corporate veil.”

On whether a company is an artificial person that can only act through its human agent, the apex Court per ANIAGOLU, JSC in the case of Trenco (Nig) Ltd v African Real Estate & Investment Co. Ltd & Anor (1978) LPELR – 3264 (SC) held that:

“But a company, although a legal person, is an artificial one which can only act through its human agents and officers. VISCOUNT HALDANE L.C. in S Lennard Carrying Co. v. Asiatic Petroleum Co. Ltd (1915) A.C. 705 stated:

“My Lords, a corporation is an abstraction, it has no mind of its own any more than it has a body of its own; its active and directing will must consequently be sought in the person of somebody who for some purpose may be called an agent, but who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation.”

Legally the procedure is; it is only after due evaluation of (evidence) acts of the company and that of the directors; (which is not in dispute that the Appellant is) at that point, the Lower Court shall determine liability of parties. I again think, it’s premature at this stage to make an apt decision, in the light of explanations of knowledge of receipt of huge sums where exhibits show Appellant as one of the signatories to the company accounts. I definitely disagree with the heavy submissions of Appellant counsel on this issue; it is part of our laws in Nigeria, that a director or officer of a company can be held vicariously liable for criminal acts of a company.

There is no gain saying that Section 286 ACJL does not operate in vacuum. The conditions therein are that:

“…the Court trying the case discharges or acquits any of the Appellants and the presiding Judge or magistrate is of the opinion that the accusation against any of them was false, frivolous or vexatious, the judge or magistrate may for reasons to be recorded, direct that compensation be paid as the Court shall deem fit to the Appellant or any of them by the person upon whose complaint the accused was charged.” (underlining mine)

From the above, the trial Court has not discharged or acquitted the defendant and is not of any opinion that the counts are false, therefore it cannot invoke this provision; it is premature at this stage.

The Appellant has in its possession huge sums that has not been returned and are no longer in the Appellant’s bank statement of accounts tendered by PW2, 3, 4 nor have the complainants been paid the said returns on investment and have moved out of their known address to avoid been forced to refund. These acts are highly suspicious to the common man and therefore call for explanations there is indeed a prima facie case established against the Appellant herein.

It is also important to state at this point that it is premature to review evidence upon this ground to discharge or acquit the Appellant also it does not flow or arise from the Ruling of the Court. See Nwankwo v EDCS UA [2007] 5 NWLR (PT. 027) 77; Akibu v. Oduntan [2000) SC (PT. 11) 16.
The Appellant further contended that the transaction is contractual. What is in issue and evidence led is to the point that what started as a civil business trampled on the requirement of the law under Sections 58(1) & 59(a) & (b) of BOFIA which the prosecution contends, it is as illegal and such acts have been criminalized. Furthermore the element of fraud on huge monies had received diverted and has not been refunded under Section 516, 383(1)& (2) & 390 (9) of the Criminal Code till the date of trial introduced the element of fraud which in its self is a codified offence and falls under other offences under our laws, these are far removed from the realm of civil transaction or gentleman’s agreement and now in the region of criminality in form of a scheme which the Appellant has a compulsory task of explaining to the satisfaction of the Court. Therefore until it is explained, neither the Lower Court nor this Court can make any definite pronouncement since it is at a no case submission stage.

Likewise this Court is unable to evaluate the case and discharge/acquit the accused based on the evidence adduced so far. It therefore will be overreaching to invoke the provisions of the ACJL, 2011 to make an order of compensation.

In Agbo & Ors v State (2013) LPELR – 20388 (SC), FABIYI, JSC held that:

“It is now basic that in considering a submission of no case to answer, it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The Court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person.”

As for the issue of arrest and detention of the Appellant’s director, the Appellant ought to have taken out a summons under the Fundamental Rights Enforcement Procedure Rules, 2009 to contend this and not raise it in the no case submission or on appeal. A different cause of action applies in this issue having not arisen from the Lower Court, this Court being an appellate Court cannot dabble therein. See Ngwu & Ors v Onuigbo & Ors (1999) LPELR – 1992 (SC) where ONU, JSC held at page 12, paras A – E that:

“…an appeal Court does not inquire into disputes, it inquiries into the way in which disputes have been tried and decided…”

On the issue of compliance with the practice direction of this Court, practice directions have the same force of law as rules of Court.

In the case of Ugo v Ummuna [2018] 2 NWLR 108 SC, it was held that rules of Court include practice directions. However, in the event of a conflict between the two, the rule must prevail and I find there is conflict herein. See Okereke v Yar’adua (Supra), per TABAI, JSC.

The Appellant simply did not comply with the practice direction even though they are meant to be obeyed. In the case of Osafile & Anor v Odi & Anor (1990) LPELR – 2783 (SC) the apex Court held that:

“…the “practice” of a Court ordinarily means the rules that make or guide the cursus curiae, and regulates procedure, within the precincts of the Court. So, in the technical sense, rules of practice denote the mode of proceedings by which a legal right is determined and enforced, as distinguished from the law, which gives or defines the right. See LUSH, L.J. in Poyser v Minors L.R. 7 Q.B.D. 325 at 333; Lever Brothers Ltd v Knede & Bagnall (1937) 2 K.B. 87; and Re Shoe Smith (1938) 2 K.B. 637. It does not include the mode or material for the proof of that right.”

The length of the Appellant’s brief is simply an irregularity which will not defeat the justice of the case. See the case of Osigwe v PSPLS Management Consortium Ltd & Ors (2009) LPELR – 2807 (SC) where the apex Court, per MUSDAPHER, JSC held that:

“Breach of a rule of practice and procedure does not render the proceedings a nullity but merely an irregularity. See Saude v Abdullahi [1989] 4 NWLR (PT.116) 388.”

I therefore resolve issue 5 (7 & 8) in favour of the Respondent.

On the whole, this appeal lacks merit and it is hereby dismissed. The Ruling of the High Court of Lagos State in suit No: ID/212C/2011 delivered on the 20th of September, 2017 coram JOSE, J. is hereby affirmed.

ABUBAKAR, JCA

My Lord and learned Brother Obaseki- Adejumo JCA, granted me the privilege of having a preview of the lead judgment prepared and rendered now. I am in agreement with the reasoning and conclusion and therefore adopt the entire judgment as my own. I have nothing extra to add.

OGAKWU, JCA

I was privileged to have read in draft the leading judgment of my Lord, Abimbola Osarugue Obaseki-Adejumo, JCA, which had just been delivered.

All the issues thrust up for determination in the appeal have been painstakingly considered and resolved in the leading judgment. The manner of resolution of the issues accord with my views and I adopt the reasoning and conclusion as my mine.

For the said reasons, I avow my concurrence that the appeal is devoid of merit. I therefore join in dismissing the appeal.

Appearances:

A. Shamsudeen with him, M. Bamidele For Appellant(s)

A. M. Ocholi For Respondent(s)