IKPE v FRN & ANOR

IKPE v FRN & ANOR


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

ON FRIDAY, 4TH MAY, 2018


Appeal No: CA/L/666M/2010
CITATION:

Before Their Lordships:

TIJJANI ABUBAKAR, JCA
UGOCHUKWU ANTHONY OGAKWU, JCA
ABIMBOLA OSARUGUE OBAS KI-ADEJUMO, JCA


BETWEEN

SIR KINGSLEY IKPE

(APPELLANT)

AND

FEDERAL REPUBLIC OF NIGERIA
THOMAS KINGSLEY SECURITES LIMITED

(RESPONDENTS)


PRONOUNCEMENTS


A. ACTION
1. Academic/Speculative/Hypothetical Suits –

Attitude of Court to academic matters

“On the first part of this issue, the Appellant was convicted and sentenced on Counts 2 to 4, 6 and 7 to 41 while he was discharged and acquitted on counts 1, 5 and 42 of the 43 Counts in the Information. The maximum sentence imposed on the Appellant was 5 years, while for some of the other counts; he was sentenced to less than 5 years. The learned trial judge ordered that “All prison sentence shall run concurrently and shall commence from 3rd August, 2004 when the 1st accused was remanded in custody…” I entirely agreed the submissions of learned Counsel for the 1st Respondent that interfering with the sentences imposed the by Lower Court in this case or considering whether the said sentences should be lesser will amount to mere academic exercise because the sentences were to run concurrently and deemed to have commenced from 3rd August, 2004 which therefore means that as at the time of this judgment and for even the time of filing the Appellant’s Brief on the 11th day of May, 2012, which is about 8 years after a sentence of maximum of 5 years started running; the Appellant had long completely, effectively and totally served the term of his imprisonment. The law is well settled law that this Court and the Supreme Court cannot invest precious judicial time or dissipate substantial energy in considering academic or hypothetical issues which do not border on live issues between the parties and will be of no practical utilitarian value or benefit to the contending parties. See ADEOGUN & ORS Vs. FASHOGBON & ORS [2008] 17 NWLR (Pt.1115) 149 SC; (2008) LPELR-131 (SC) Pg.37, paras. G – C; ODUTOLA & ORS Vs. MABOGUNJE & ORS (2013) LPELR-19909 (SC) Pg.37-38, Paras. C – A; IGWEGBE Vs. ANSELEM & ORS (2017) LPELR-42681 (CA) Pg.8-10, Paras. G – D and DIBIAGWU Vs. UZONWANNE & ORS (2017) LPELR-43074 (CA) Pg.16-17, Paras. D – B where this Court held that:

“A case or an appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/claim; that is, where what is presented to the Court for a decision (and if decided), cannot affect the parties thereto, in anyway, either because the fundamental nature of the relief sought has changed, or there is a changed circumstance, since the litigation started, such that in the end, the case or the appeal has become academic at the time it is due for hearing…”

I entirely agree with learned Counsel for the 1st Respondent that determination of any point relating to sentence is completely and totally academic, the issue is spent and therefore not deserving of any positive consideration.” Per ABUBAKAR, J.C.A. read in context

B. APPEAL
2. Interference with Findings of Fact – Principles guiding review of findings of fact by the appellate court

Guiding principles for the review/interference with findings of facts by the appellate Court

“The law is well settled that unless the findings of facts made by a trial Court are found to be perverse and cannot reasonably be supported by the evidence generated at the trial thereby leading to injustice; an appellate Court will not ordinarily disturb or interfere with such findings. The Appellant Court has no business interfering with proper findings of facts unless there is obvious misapprehension of the facts by the trial Court, or the learned trial Judge, in arriving at a decision took irrelevant materials into account or omitted to consider relevant materials, thereby arriving at a wrong and inappropriate conclusion. Proper evaluation of evidence at the trial is within the province of the trial Court having had the opportunity of seeing, hearing and watching the demeanor of the witnesses. See OKONJI Vs. THE STATE [1987] NWLR [Pt.52] 659; (1987) LPELR-2479 (SC) Pg.23, Paras. A – G; SULEMAN & ANOR vs. COP, PLATEAU STATE [2008] 8 NWLR (Pt.1089) 298; (2008) LPELR-3126 (SC) Pg.42, Paras. A – B; CPC Vs. INEC & ORS (2011) LPELR-8257 (SC) Pg.92-93, Paras. F – B; FRN Vs. DAIRO & ORS (2015) LPELR-24303 (SC) Pg. 48-49, Paras, D – C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 55-56, Paras. E – D where the Supreme Court per SANUSI ISC held as follows:

“It must be emphasized here and it is even settled law, that an appellate Court does not as a matter of practice or law interfere where trial Court unquestionably evaluates and justifiably upraises the facts. The reason for this practice is because it is the trial judge who takes down relevant evidence. Thereafter, when writing his ruling or judgment and the trial judge weighs the evidence in the surrounding circumstances of the case. That is called evaluation. When evaluation of evidence is properly done, the findings of that trial Court are difficult to be faulted by any appellate Court…” In the instant case, the Appellant has failed to denigrate the findings of the learned trial judge on the counts of stealing as reproduced above. The trial Judge had the privilege of hearing and seeing the witnesses and observing their demeanor, this therefore means in the absence of concrete and cogent materials evidencing the fact that the findings are perverse and that a miscarriage of justice has occurred as a result of the findings, the decision of the trial Court will not be disturbed, The learned trial Judge from the materials before us neatly and comprehensively considered all the elements to be proved where an accused is charged for stealing and upon drawing inference from the evidence before him, he came to the conclusion that the prosecution proved the offence of stealing for which the Appellant was charged beyond reasonable doubt. I am in total agreement with the learned trial Judge.” Per ABUBAKAR, J.C.A. read in context

3. Interference with Findings of Fact – Principles guiding review of findings of fact by the appellate court

Guiding principles for the review/interference with findings of facts by the appellate Court

“In arriving at a decision that the offences charged have been proved beyond reasonable doubt, the trial Court has the obligation of evaluating the evidence to ascertain if the evidence adduced established the ingredients of the offence and also establishes that the culprit is the accused person. Where the Court of trial which had the unparalleled advantage of having seen and heard the witnesses testify, properly evaluates the evidence and ascribes probative value thereto in arriving at the conclusion that the prosecution proved the offences charged beyond reasonable doubt, an appellate Court will not interfere. See EZE vs. FRN (2017) LPELR (42097) 1 at 78 (SC), UCHE vs. THE STATE (2015) 11 NWLR (PT.1470) 380 at 397, BUSARI vs. THE STATE (2015) 5 NWLR (PT 1452) 343 at 373 and SHURUMO vs. THE STATE (2010) 9 NWLR (PT.1226) 73. As clearly demonstrated in the leading judgment the findings made by the Lower Court are not perverse, the evidence adduced supports the findings made and there was no misapplication of the law to the facts or wrong application of some principle of law or procedure to the facts of the case. Put simply, no miscarriage of justice was occasioned in the evaluation of the evidence by the Lower Court. It is for the foregoing reason and the more detailed reasoning, analysis and conclusion in the leading judgment, which I adopt as mine, that I also dismiss this appeal for being devoid of merit. The decision of the High Court of Lagos State Coram Judice: Oyewole, J. (as he then was) in CHARGE NO.ID/143C/2004 delivered on 7th June 2005 is affirmed.”Per OGAKWU, J.C.A. read in context

C. COMPANY LAW
4. “Alter Ego” –

Application of the doctrine of alter ego

“…In this appeal, the Appellant has not challenged the findings of the trial Court that, he is the alter ego of the 2nd Respondent yet, he seems to be arguing that the allegedly fraudulent documents carry the name of the 2nd Accused person and therefore the Appellant was not found to have been the one who forged the said documents. As rightly submitted by the 1st Respondent’s counsel, the Appellant is the directing mind of the 2nd Respondent, this fact remains uncontroverted and unchallenged by the Appellant. The Supreme Court in OYEBANJI Vs. STATE (2015) LPELR-24751 (SC) Pg.25, Paras. C – G per FABIYI JSC held as follows:

“Alter ego’ is said to mean ‘second self’. Under the doctrine of ‘alter ego’, Court merely disregards corporate entity and hold individuals responsible for act knowingly and intentionally done in the name of the corporation… 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 for his own private instrumentality in conducting his own personal business. Liability springs from fraud perpetuated not on the corporation but on third persons dealing with the corporation…”

See also, the N.N.S.C. Vs. SABANA [1988] NWLR (Pt.14) 23; (1988) LPELR-2015 (SC) Pg.61-62, Paras. F-A where the Supreme Court of Nigeria held that: “A company, it has been said is an abstraction. It therefore acts through living persons. But if is not the act of every servant of the company that binds the company. Those whose acts bind the company are the alter ego – those persons who because of their position are the directing mind and will of the company, the very ego and corporate personality of the company…”

In the Appellant’s Statement at page 26 of the Records of the Appeal, he said as follows: “I am the Chairman/CEO of Thomas Kingsley Securities Limited, a stock broking firm with offices in Lagos, Ibadan, Owerri, Aba and Abuja. The complainant Mr. Tonny Ezenna is the Chairman of Orange Drugs Ltd. He was our valued customer and pursuant to our relationship the client gave us oral instructions/mandate to buy, sell and manage his portfolio. It is not correct that we had specific instructions/mandate in writing to buy sell and manage this portfolio but a general verbal instruction to buy and sell on his behalf. Pursuant to this a total sum of N135 million was paid for the purchase of the Nigerian Breweries shares between 15th May 2002 and 4th February 2003…”

In the concluding paragraph of the statement, the Appellant said “Finally I wish to state that Mr. Abiodun Abodunde our Abuja Branch manager only accompanied me to SEC as a matter of duty. He was neither involved in nor properly knowledgeable of these issues.” Therefore, in the light of the evidence by the 2nd Respondent that he is solely responsible for dealing with the transactions between the 2nd Respondent and PW4 and that Mr. Abiodun Abodunde who is the Abuja Branch Manager of the 2nd Respondent is not involved or in the know of the issues; and also in the absence of any evidence before the Court that the Appellant is not the alter ego of the 2nd Respondent as held by the learned trial Judge, the learned trial Judge was therefore right in his conclusion that the Appellant and 2nd Respondent were guilty as charged on the various Counts of forgery and uttering. As already held, I have no reason to disturb the findings of the learned trial judge which has not been challenged by the Appellant. See OKONJI Vs. THE STATE (Supra); SULEMAN & ANOR Vs. COP, PLATEAU STATE (Supra); CPC Vs. INEC & ORS (Supra); FRN Vs. DAIRO & ORS (Supra) and FALEYE & ORS Vs. DADA & ORS (Supra).” Per ABUBAKAR, J.C.A. read in context

D. CRIMINAL LAW
5. Seizure, Restitution, Forfeiture and Disposition of Property – Power of the court to order a person convicted of an offence to make restitution

Whether the Court can order a person convicted of an offence to make restitution

“The only point left in this issue is the question of whether the trial Court had and rightly exercised the jurisdiction to make an order for the refund of N61 Million to PW4 pursuant to the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003.

In RAJI Vs. STATE (2012) LPELR-7968 (CA) Pg. 84-87, Paras. C – D My lord and learned brother OGBUINYA JCA held as follows and I quote:
“…the principle of law that a Court, not being a Santa clause, cannot dish out unsolicited claims to parties is, perhaps, unknown to the appellant, is riddle with exceptions. One of such qualifications, that is germane here, is that a Court is vested with jurisdiction to grant an unclaimed, relief suo motu when it is provided in an enactment. What the Lower Court did is a quintessence of this exception to unclaimed relief in adjudication. I have no reason to fault it.”

The Appellant is nettled by the order for restitution made by learned trial Judge when he said as follows at page 212-213 of the records:
“I have considered the passionate plea of the 2 learned Defense Counsel considering the professional career of the 1st accused as outlined by his Counsel, his situation is most pathetic. However, the same way as the society frowns at and takes a serious view of violent financial crimes or brown collar crimes, for it, to make progress, it must not also give a slap on the wrist for white collar financial crimes. Armed robbery and pen robbery equally originate from the same location of greed and depravity and both must not be condoned or treated with kid gloves,

In the circumstance therefore, I shall balance the interest of the society with the personal circumstances of the accused persons as urged on me by their Counsel. Accordingly, the accused persons are sentenced as follows… And in the circumstance of this case, the accused persons are ordered to repay the sum of N61 million paid to them by PW4, Mr. Tony Ezenna to the said Mr. Tony Ezenna within 7 days hereof…

The submission by learned Counsel for the Appellant that, the issue of payment of the sum of N61,000,000.00 was not an issue before the Court is strange. By the provisions of Section 270 of the Criminal Procedure Act, where any person is convicted of having stolen or having received stolen property, the Court convicting him may order such property or a part thereof to be restored to the person who appears to it to be the owner thereof. The Criminal Procedure Act made ample provision for restitution, the argument that there is no issue of restitution before the trial Court is stale, barren and spent. Our Criminal Justice system has since taken good care of the ancient obsolete, antique and stone-age belief that there is incentive in committing crime, I think the approach nowadays is to ensure that the proceeds of crime are completely and totally recovered from the criminal so that he will go home high and dry feeling that there is no incentive in committing any illegal act. I think this issue has been subjected to substantial discourse, let me just conclude that, Appellant has nothing useful to urge this Court on this issue, it is also resolved in favor of the 1st Respondent against the Appellant.” Per ABUBAKAR, J.C.A. read in context

E. EVIDENCE
6. Burden of Proof/Standard of Proof – Burden and standard of proof in a criminal trial

General principles of the burden and standard of proof in a criminal trial

“The burden on the prosecution in a criminal trial is to prove the offences charged beyond reasonable doubt. This does not connote proof beyond all shadow of doubt. All that is expected of the prosecution is to prove that an offence was committed and that it was committed by the accused person. This is accomplished by proving the essential ingredients of the offence charged. See generally DAIRO vs. THE STATE (2017) LPELR (43724) 1 at 23-24 (SC), AFOLALU vs. THE STATE (2010) 15 NWLR (PT.1220) 584, BAKARE vs. THE STATE (1987) LPELR (714) 1 at 10-11 and MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 373.” Per OGAKWU, J.C.A. read in context

F. GOVERNMENT AGENCY
7. Economic and Financial Crimes Commission –

Powers of the Economic and Financial Crimes Commission to initiate criminal prosecution in the name of the Federal Republic of Nigeria

“In the instant case, as can be gleaned from the Information at page 2 and the 1st Amended Information as pages 91 – 702 of the Records of Appeal, the action against the accused person was prosecuted by the EFCC on behalf of the Federal Republic of Nigeria. In AMADI Vs. FRN [2008] 12 SC (Pt.III) 55; (2008) LPELR-441 (SC) Pg.17-18, Paras. C – A, the Supreme Court of Nigeria held as follows:

“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys-General of the States delegate their powers to the various States Commissioners of Police who institute and prosecute criminal matters in the name of such Commissioner of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney-General of the Federation…”

See also AKINGBOLA Vs. FRN & ANOR (2012) LPELR-8402 (CA) Pg.20-21, Paras. E – G, where this Court held that:
“… Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do so as we are all our brothers’ keepers…
This includes an institution such as the EFCC set up to fight corruption in all its facets and economic crimes…”
The power to initiate criminal proceedings under the laws of a state as provided by Section 211(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 is not limited to the Attorney-General of the State because ‘any other person’ as used in Section 211(1)(b) includes agencies like the EFCC. See: DARIYE Vs. FRN (2015) LPELR-24398 (SC) Pg.36, Paras. E – G where the Supreme Court per NGWUTA JSC held that: “The offences in the indictment against the appellant are financial crimes and under S.13 (2) of the Economic and Financial Crimes Act, 2004 the Commission has powers to prosecute the appellant. The institution of proceedings against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State. S.174(1) (b) and (c) and S.271(1)(b) and (c). It is my view that the Respondent has powers to prosecute the appellant directly or through an agent.” In the circumstances of this appeal therefore, the EFFC being an agency of the Federal Government having been expressly and clearly granted the fiat to initiate criminal proceedings under the criminal laws of Lagos State by Exhibit P55 is, in my view at liberty to institute such proceedings in the name of the Commission or in the name of the Federal Republic of Nigeria which they stand to represent and act for. The Appellant’s contention is therefore baseless and completely misconceived, the submission appears to be a design to enthrone technicalities over substantial justice, the Appellant has not presented any cogent material to establish that he suffered substantial injustice or prejudice occasioned by his trial in the name of the ‘Federal Republic of Nigeria’ as against his preferred ‘The People of Lagos State’. I think the attempt by the Appellant to hinge on this issue is frivolous, vexatious, and therefore a baseless alarm crying wolf by the Appellant where none exists. This issue is resolved in favor of the 1st Respondent and against the Appellant.”Per ABUBAKAR, J.C.A. read in context

8. Economic and Financial Crimes Commission –

Powers of the Economic and Financial Crimes Commission to initiate criminal prosecution in the name of the Federal Republic of Nigeria

“I just wish to add my voice on the issue relating to the competence of the Economic and Financial Crimes Commission (EFCC) and/or Attorney General of the Federation (AGF) to prosecute State offences in the name of the Federal Republic of Nigeria. It is the contention of the Appellant’s counsel that having been granted a fiat vide Exhibit P55, the 1st Respondent can only file the Amended Information herein in the name of the “the People of Lagos State.” This submission is no doubt misconceived, showing a manifest misconception of the position of the law in this regard. As my learned brother has rightly noted, in so far as the Attorney General of Lagos State has delegated his prosecutorial powers in relations to offences under the State Criminal Law to both the Attorney General of the Federation and the EFCC, it is within the prosecutorial competence of the AGF and EFCC to file an Information in the name of the Federal Republic of Nigeria or the EFCC as the case may be. See AMADI v FRN (2008) LPELR – 441 (SC) where the Supreme Court emphatically stated, in relation to prosecutorial powers delegated to Commissioners of Police by an Attorney General of the State, that the charge can be filed in the name of the Commissioner of Police. It is certainly not the contention of the Appellant that the EFCC cannot try an offence, as done in the instant case, in the name of the Federal Republic of Nigeria; I am therefore of the firm view that the Lower Court was right in assuming jurisdiction to hear and determine the Amended Information as presently constituted.” Per OBASEKI-ADEJUMO, J.C.A. read in context


LEAD JUDGMENT DELIVERED BY ABUBAKAR, J.C.A.


This is an appeal against the judgment of the High Court of Lagos State, sitting in the Ikeja Division, delivered by Oyewole J. (Now JCA) on the 7th day of June 2005 in Suit No:ID/143C/04.

Just by way of brief summary of facts grounding the appeal. One Chief Tony Ezenna, the Chairman of Orange Drugs Limited sometimes in April 2002 approached the 2nd Respondent Company, a private limited liability Company incorporated under the laws of the Federal Republic of Nigeria and licensed by the Securities and Exchange Commission to carry on business as stock brokers to purchase shares of the Nigeria breweries for him. Towards the said purchase, Chief Ezenna deposited the sum of N1,35,000,000.00 in six installments. Let me state that the Appellant herein negotiated the transaction being the Chief Executive officer of the 2nd Respondent.

The transaction developed hick-ups, the Appellant and the 2nd Respondents were unable to purchase the shares as agreed, as at December 2004, the Appellant and the 2nd respondent were yet to purchase shares worth N61,000,000.00, and eventually put up a proposal to Chief Ezenna to refund the sum of N61,000,000.00 to him, this proposal did not go down well with him, he turned down the offer and eventually reported the matter to the Economic and Financial Crimes Commission. The Appellant and the 2nd Respondent were eventually arraigned in Court and tried. Judgment was delivered convicting the Appellant and the 2nd Respondent.

The judgment of the Lower Court is found at pages 175 -217 of the Records of Appeal wherein the learned trial judge found the Appellant and 2nd Respondent guilty of Counts 2 to 4, 6 and 7 to 41, of 43 Counts in the 1st Amended Information dated 8th day of April, 2005 and contained at pages 91 – 102 of the Record of Appeal, the Appellant was according sentenced.

Aggrieved by the decision of the Lower Court, the Appellant filed Notice of appeal on the 18th day of July, 2005 containing fourteen (14) grounds as contained at pages 218 – 228 of the Records of Appeal. The Appellant’s Brief of Argument was filed by learned Counsel Theophilus Ochonogor Esq. on the 11th day of May, 2012 the brief was deemed as properly filed and served on the 17th day of January, 2018.

The 1st Respondent’s Brief on the other hand was filed on the 26th day of January, 2018 by learned Counsel S. K. Atteh Esq. There was no representation on behalf of the 2nd Respondent. Learned counsel for the Appellant distilled [3] three issues for determination as reproduced below:

1. Whether in view of the clear provisions of Sections 174(1) & (2) and 211(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 the Court below was right in assuming jurisdiction to hear and determine criminal charges instituted by the Economic and Financial Crimes Commission in the name of the Federal Republic of Nigeria in respect of offences created by or under the law of the House of Assembly of a State. (Grounds i, ii, iii, iv and v of the Notice of Appeal dated 18-07-05).

2. Whether the prosecution had proved beyond reasonable doubt the allegations of stealing, forgery and uttering against the Appellant (Grounds vi, vii, viii, ix, x, xi, xii and xiii of the Notice of Appeal dated 18-07-05).

3. Whether the Learned Trial Judge exercised his discretion judicially and judiciously when his Lordship sentenced the Appellant to jail without an option of fine and ordered the repayment of the sum of N61,000,000.00 to PW4 within 7 days (Ground xiv of the Notice of Appeal dated 18-07-05).

The 1st Respondent adopted the issues as distilled by the Appellant and submitted argument in the brief of argument filed by the 1st Respondent. The 2nd Respondent filed no brief of argument.

SUBMISSIONS OF COUNSEL ISSUE 1
Submitting on this issue, learned Counsel for the Appellant referred to Sections 174(1) & (2) and 211(1) & (2) of the Constitution of the Federal republic of Nigeria, 1999, (as amended). Sections 7(2) and 46 of the Economic and Financial Crimes Commission Act and Exhibit P55 which is a letter dated 3rd May, 2004 where the Attorney General of Lagos State delegated his prosecutorial powers in relation to offences under the Criminal Code Law or Criminal Procedure Law of Lagos State or both to the Attorney General of the Federation or the Economic and Financial Crimes Commission. Counsel submitted that the Appellant and the 2nd Respondent were charged under Sections 516, 390(8)(b), 467 (2) (6) and 468 of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 by the Economic and Financial Crimes Commission in the name of the 1st Respondent on the strength of Exhibit P55 which does not satisfy the requirements of the Constitution of the. Federal Republic of Nigeria, 1999 because the Attorney General of the Federation is not empowered to prosecute under the laws of a State.

Learned counsel referred to ANYEBE Vs. STATE [1986] NSCC [Vol.17) Pg.35 at 41 to submit that the case of A.G. ONDO STATE Vs. A.G. FEDERATION [2002] 9 NWLR (Pt.772) Pg.222 at 419 relied on by the trial Judge in assuming jurisdiction over the case is of no moment and therefore irrelevant to the instant case because the accused persons in that case were charged under an Act of the National Assembly by the Attorney General of the Federation whereas in the instant case, the accused persons were charged under a Law of the Lagos State House of Assembly by the Attorney General of the Federation. Counsel argued that where the Attorney General of Lagos State delegates his powers to the Attorney General of the Federation, the latter is only empowered to prosecute on behalf of the former and ought to institute the case in the name of the former, that is to say, in the name of the Attorney General of Lagos State.

Learned counsel submitted that the Amended Information dated 8th April, 2005 at pages 91 – 102 of the Records of Appeal contradicts Exhibit P55 and the said information having been filed in the name of the 1st Respondent, that is, Federal Republic of Nigeria instead of ‘The People of Lagos State’ robbed the Lower Court of jurisdiction to entertain and determine the charges. Counsel submitted further that the 1st Respondent is not competent to file charges in respect of offences created by or under any law of the House of Assembly of Lagos State and that the correct charge should have read “The State Vs. Kingsley Ikpe” and not “The Federal Republic of Nigeria Vs. Kingsley Ikpe”. Learned Counsel for the Appellant urged this Court to so hold and resolve this issue in favor of the Appellant.

In response to the Appellant’s submissions on this issue, learned counsel for the 1st Respondent referred to Sections 6(m) and 13(2) of the Economic and Financial Crimes Commission [Establishment) Act, 2004 to submit that the Commission is empowered to prosecute cases relating to economic and financial crimes.

Counsel referred toAMADI Vs. FRN [2008] 18 NWLR (Pt.1119) Pg.259 to submit that Exhibit P55 is constitutional, Counsel submitted that by the decision in AMADI Vs. FRN (Supra) the EFCC is a common agency for both the Federal and the State Governments and therefore qualifies as any other authority to institute criminal proceedings under Section 211(1)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Learned counsel further referred to OKEY JIBULU Vs. FRN (Unreported Appeal No.CA/L/635/2013) delivered on the 9th day of July, 2015); RICKEY MUSTAPHA TARFA (SAN) Vs. FRN (Unreported Appeal No.CA/L/497/2016) delivered on the 17th day of March, 2017) and NYAME Vs. FRN [2010] 7 NWLR (Pt.1193) Pg.402, Paras. C – D to submit that the Respondent can prosecute in the name of the Federal Republic of Nigeria and not necessarily in the name of the ‘The People of Lagos State’. Counsel urged this Court to resolve this issue in favor of the 1st Respondent and to hold that the Amended Information on which the Appellant was charged, tried and convicted is competent.

ISSUE 2

Learned counsel for the Appellant referred to the 1st Amended Information containing the charges against the Appellant and co-accused, particularly counts 2 to 19 which relate to stealing contrary to Section 390 (8)(b) of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 contained at pages 91 – 102 of the Records of Appeal and submitted that the Appellant was found guilty of all the charges except for count 5. Counsel referred to Section 390 (8)(b) of the Criminal Code; ONAGORUWA Vs. STATE (1993) 7 NWLR (Pt.303) Pg. 49 at 84, Paras. C – E; Pg.88, Paras. D – F and AROWOLO Vs. FABIYI [2002] 2 SC [Pt.1] Pg.71 at 87 – 88 to submit that by virtue of the provisions of Section 138[1] of the Evidence Act, if the commission of a crime by a party to any civil or criminal proceeding is directly in issue, it must be proved beyond reasonable doubt.

Learned counsel referred to the findings made by the learned trial Judge at pages 206 of the Records of Appeal and submitted that if the learned trial Judge had properly considered the case of ONAGORUWA Vs. STATE (Supra), he would have reached a different conclusion. Counsel argued that Exhibits D4 and DB clearly establish that Orange Drugs Limited, and not PW4,

Chief Ezenna Anthony Ifeanyi-Chukwu is the owner of the sums of money totaling N61 Million alleged to have been stolen by the accused persons. Learned counsel submitted that the learned trial judge was bound to follow the decision in ONAGORUWA Vs. STATE (Supra). Counsel argued that the 1st Respondent withheld Exhibits D4 – D7 at the trial Court and urged this honorable Court to invoke the provisions of Section 149(d) of the Evidence Act.

Learned counsel further contended that of the essential elements which the prosecution must establish in a case of stealing is that the property was fraudulently taken or frequently converted. Counsel referred to the testimony of PW4 under Cross-examination at page 147 of the Records of Appeal to submit that the case against the Appellant relates to dispute involving the 2nd Respondent and PW4, a capital market operator and her client, arising from PW4’s investment of the sum of N135 Million for the purchase of shares, Counsel further submitted that this case is at best a breach of contract which has, no element of criminality and ought not to have resulted in a criminal charge and conviction of the Appellant.

Learned counsel referred to Section 284(1) of the Investment and Securities Act, 2007 to submit that it is the Investment and Securities Tribunal that has exclusive jurisdiction to hear and determine any question of law or dispute between capital market operators and their clients.

Counsel argued that PW4 ought to have approached the Investment and Securities Tribunal to seek redress instead of the needless prosecution of this case by the 1st Respondent.

Learned counsel for the Appellant further referred to counts 20, 22, 24, 26, 28, 30, 32, 34, 36, 38,40 and 42 which are allegations of forgery against the Appellant contrary to Sections 467(2) (b) of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 and submitted that the Appellant was found guilty of all the charges except on count 42. Counsel referred to the said Section 467(2)(b) of the Criminal Code;BABALOLA Vs. STATE [1989] 7 SC (Pt.1) Pg.94 at 101 and the finding of the Lower Court at pages 210 – 211 of the Records of Appeal to submit that the learned trial judge rightly found that the alleged forged documents carry the name of the 2nd Accused who is an artificial person.

Counsel submitted that counts 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40 and 42 clearly show that the alleged forged documents were purportedly issued by Thomas Kingsley Securities Limited to Ezenna Anthony Ifeanyi Chukwu and that the trial Judge did not find that the said documents were forged by the Appellant as required inALEKE Vs. STATE [1991] 1 NWLR (Pt.205) Pg.567 cited by the learned trial judge.

Learned counsel submitted that the prosecution must prove the allegation of forgery against the Appellant beyond reasonable doubt before the Lower Court can proceed to convict the Appellant for forgery. Counsel cited NWODO Vs. STATE [1991] 4 NWLR (Pt.185) Pg.341 at 357 to submit that it is not our law that the Appellant has to prove his innocence. Counsel urged this Court to discharge and acquit the Appellant on counts 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40 and 42 because there is no prima facie evidence that the alleged forgery was made by the Appellant.

Learned counsel also referred to counts 22, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, and 43 which are allegations of uttering against the accused persons contrary to

Sections 468 of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 and submitted that the Appellant was found guilty on all the charges except for counts 39 and 43. Counsel referred to the said Section 468 of the Criminal Code and the findings of the learned trial Judge at page 212 of the Records of Appeal to submit that the particulars of the offences show that the documents allegedly uttered were purportedly issued by Thomas Kingsley Securities Limited to Ezenna Anthony Ifeanyi Chukwu and not by the Appellant. Learned counsel submitted that the conviction of the Appellant on counts 21, 23, 25, 27, 29, 31, 33, 35, 37, 39, 41, and 43 ought not to stand because there is no prima facie evidence that the alleged uttering was done by the Appellant. Counsel urged this Court to discharge and acquit the Appellant on those counts.

Responding on behalf of the 1st Respondent, learned Counsel referred to counts 2 to 19 which relate to stealing. Counsel relied on Section 383 [1] and [a] of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 contained at pages 91, 102 of the Records of Appeal to submit that the essential elements which the Respondent is expected to prove in a case of stealing are the owner of the thing stolen; that the thing stolen is capable of being stolen and that the thing was fraudulently taken or converted. Learned counsel referred to ALEKE Vs. STATE (Supra) at 593 and ONWUDIWE vs. FRN [2006] 10 NWLR (Pt.988) Pg.382 at 429, Paras. E – G to submit that the owner of the property in the instant case is PW4 whose testimony is contained at pages 144 – 148 of the Records of Appeal. Counsel submitted that the testimony of PW4 and Exhibits P7 to P12 and contained at pages 63 65 of the Records of Appeal and Exhibits D3 to D8 positively proved that PW4 is the owner of the money fraudulently converted by the Appellant and 2nd Respondent.

Learned counsel for the 1st Respondent further contended that the testimony of W4 and Exhibits P7 – P12, D3 to D8 satisfied that requirement that the money meant for purchase of Nigeria Breweries shares worth N135 Million is capable of being stolen and that Exhibits P13 to P44 issued by the Appellant as evidence that he bought the Nigeria Breweries Shares as instructed by PW4 were shown not to be so by Exhibits P47 and P49 and the testimony of PW2 contained at pages 133 – 138 & 151 – 153 of the Records of Appeal. Counsel submitted that Exhibits P47 and P49 show that the Appellant and the 2nd Respondent did not buy shares for or in the name of PW4 as claimed. Counsel contended that Exhibits P28, P30 to P36, P41 and P43 to P44 were not purchased as claimed by the Appellant and therefore satisfy the elements of fraudulent conversion.

Learned counsel submitted that the Appellant admitted in Exhibit P5 that there is still an outstanding balance of N61,000,000,00 he has not yet purchased as at 22nd day of December, 2002 contrary to the false representation made in Exhibits P13 to P44 that he had purchased all the shares as instructed by PW4.

Learned counsel further referred to counts 7 to 19 of the Information to submit that from the 943, 124 units of the Nigerian Breweries Plc Shares bought for PW4, the Appellant sold all except for the 40, 155 units that were remaining in the account of PW4 at the time this case was reported; and that Exhibit P.49 and P.50 contain details of how the Appellant sold the said shares which were sold without the consent of PW4. Counsel submitted that the Appellant and the 2nd Respondent therefore fraudulently converted and the shares referred to in counts 7 to 19 of the Information and therefore, the element of stealing was established. Counsel cited SAGOE Vs. QUEEN [1963] NSCC (Vol. 3) Pg. 233; ADEWUSI Vs. QUEEN [1963] Vol. 3 Pg. 254 and ONWUDIWE Vs. FRN (Supra) in support of this contention.

On the Appellant’s contention that the sum allegedly stolen belongs to Orange Drugs Limited and not the PW4 and that this case is at best a breach of contract which has no element of criminality, learned counsel for the 1st Respondent submitted that the evidence adduced by the 1st Respondent at the trial Court and the findings of the learned trial Judge were overwhelming that the Appellant and 2nd Respondent converted the money entrusted to them to buy the Nigerian Breweries Plc Shares on behalf of PW4. Counsel submitted that the fact that the cheques given to the Appellant admitted as Exhibits D3 to D8 were in the name of Orange Drugs Limited cannot be a defense to these offences. Learned counsel referred to ADEWUSI Vs. QUEEN (Supra) to urge this Court to resolve this issue in favor of the 1st Respondent, affirm the decision of the trial Court by holding that the 1st Respondent proved the offence of stealing against the Appellant and the 2nd Respondent beyond reasonable doubt.

As regards counts 20, 22, 24, 26, 28, 30, 32, 34, 36, 38, 40 and 42 which border on forgery, learned Counsel for the 1st Respondent contended that the elements of forgery which the Prosecution is expected to prove are that there is a document or writing which is forged and that the said forgery is by the accused person who knows that the said document or writing is false and yet intends that the forged documents be acted upon to the prejudice of the victim in the belief that it is genuine. Counsel relied on ALEKE Vs. STATE (Supra) and BABALOLA Vs. STATE [1989] 4 NWLR (Pt.115) Pg.264 at 277 to submit that Exhibits P28, P30 – P36, P41, 43 and P44 were falsely presented by the Appellant and 1st Respondent who knew they were false and yet presented them as proof of shares bought in Nigerian Breweries Plc which were indeed never bought. Counsel argued that the Appellant and 2nd Respondent intended that these false documents be acted upon by PW4 and indeed PW4 acted upon them to his own prejudice in the belief that these documents were genuine.

Learned counsel submitted that as a result of the fraudulent representation of the Appellant and 2nd Respondent, PW4 had only 40,000 units of shares with Nigeria Breweries Plc instead of 3.5 Million Shares based on the N135 Million given to the Appellant. Counsel submitted that it is not only the author of the documents that is liable for forgery; the Appellant and 2nd Respondent are equally liable. Learned counsel referred to AGWUNA Vs. A.G. FED [1995] 5 NWLR (Pt.396) Pg.418 at 438, Paras. F – G and STATE Vs. OLADIMEJI [2003] 14 NWLR (Pt.839) Pg. 57 to submit that the Appellant is the directing mind of the 2nd Respondent and that the 1st Respondent proved all the essential elements that needed to be proved on the counts of forgery at the trial Court. Counsel urged this Court to affirm the position of the trial Court on this issue.

On counts 2 , 23, 25, 27, 29, 31, 33, 35, 37, 39, 41 and 43 which are allegations of uttering against the accused persons, learned counsel for the 1st Respondent submitted that it was proved at the trial Court that Exhibits P28, P30 – P36, P41, P43 and P44 were forged documents because they were designed to deceive and defraud. Learned counsel referred to Black’s Law Dictionary, 7th Ed., at Pg.1545 to contend that the Appellant knowingly and fraudulently uttered the false documents by presenting them to PW4 as genuine which resulted in financial losses suffered by PW4.

Counsel argued that it is not the requirement of the law that the 1st Respondent must prove that the Appellant personally forged the documents and that what the law requires is that the Appellant must come within the definition of a principal offender as stipulated in Section 7 of the Criminal Code, Cap 17, Vol 2, Laws of Lagos State Nigeria, 2003.

ISSUE 3

Learned counsel for the Appellants submitted that under the Criminal Code, Cap 17,Vol.2, Laws of Lagos State Nigeria, 2003, a maximum penalty is prescribed in most cases for each offence leaving the trial Judge with a discretion to impose a less severe punishment where the circumstances justify it. Counsel referred to ABACHA Vs. STATE [2002] 7 SC (Pt.1) Pg. 1 at 11 to submit that the exercise of discretion is not absolute, it can be challenged and where a judge is required to exercise discretion, he must do so judicially and judiciously. Learned counsel cited ADEYEYE Vs. STATE [1968] 1 NSCC (Vol.5) Pg. 187 at 189 and submitted that the allegations of stealing, forgery and uttering against the Appellant in the instant case were not proved beyond reasonable doubt by the Prosecution as required under Section 138[1) of the Evidence Act. Counsel therefore urged this Court to quash the conviction and sentence of the Appellant and to discharge and acquit him.

Learned counsel further referred to the part of the judgment at pages 216 – 217 of the Records of Appeal where the learned trial Judge ordered the Appellant and the 2nd Respondent to repay the sum of N61 Million back to PW4 within 7 days. Counsel submitted that the said order is not a consequential order as the said sum of N61 Million was not tendered as exhibit before the learned trial Judge and the Lower Court had no custody of the money. Learned counsel referred to Section 36[8] & (12) of the Constitution of the Federal Republic of Nigeria, 1999 to submit that in the instant case, there is no provision under Sections 516, 390 [8](b), 467 (2) (6) and 468 of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 which prescribes the payment of money to a complainant in a criminal case and that the learned trial Judge lacked the jurisdiction to make such an order which is a nullity.

Learned counsel urged this Court to allow this appeal, discharge and acquit the Appellant of all the charges against him and set aside the said order by the Lower Court that the Appellant should pay the sum of N61 Million to PW4.

On this last issue, learned counsel for the 1st Respondent submitted that the sentence imposed by the learned trial Judge is reasonable considering the prevalence of fraud in the Nigerian Society and the need for the authority to send clear signal to the general public that such misconduct for which the Appellant and 2nd Respondent were convicted and ordered to pay restitution to the victim will no longer be tolerated. Counsel further urged this Court to affirm the sentence imposed by the trial Court on the ground that such punishment is necessary to act as deterrent to others. Learned counsel referred to AMANCHUKWU vs. FRN [2009] 2-3 SC (Pt.1) Pg.93 at 97 to argue that the Appellant’s submission urging this Court to reduce the sentence on the Appellant is academic as the Appellant has completely served the term of his imprisonment.

With regards to whether the trial Court has jurisdiction to make an order for the refund of N61 Million to PW4, learned counsel for the 1st Respondent contended that it is not only when money is tendered in exhibit during trial that the Court can order restitution to victims of crime. Counsel referred to Section 270 of the Criminal Procedure Law of Laws of Lagos State to submit that the trial Court is empowered to make such restitution as it did in the instant case. Learned counsel urged this Court to resolve this issue and all the other issues in favor of the 1st Respondent and affirm the orders of the trial Court.

RESOLUTION

ISSUE 1

The first issue to resolve in this appeal is “Whether in view of the clear provisions of Sections 174(1) & (2) and 211(1) & (2) of the Constitution of the Federal Republic of Nigeria, 1999 the Court below was right in assuming jurisdiction to hear and determine criminal charges instituted by the Economic and Financial Crimes Commission in the name of the Federal Republic of Nigeria in respect of offences created by or under the law of the House of Assembly of a State.” The summary of the Appellant’s contention on this issue is that the Attorney-General of the Federation has no authority to prosecute in respect of an offence under the laws of Lagos State and that where the Attorney-General of Lagos State delegates such powers to the Attorney-General of the Federation; the Attorney-General of the Federation ought to institute any such proceedings in the name of ‘The People of Lagos State’ instead of the ‘Federal Republic of Nigeria’ as done in the instant case. The 1st Respondent on the other hand submitted that the Supreme Court has affirmed that the Attorney-General of Lagos State could delegate his powers to the Economic and Financial Crimes Commission (EFCC) to prosecute economic crimes under the laws of Lagos State and that the 1st Respondent can prosecute in the name of the ‘Federal Republic of Nigeria’ and not necessarily the name of ‘The People of Lagos State.

Learned Counsel for the Appellant referred to Exhibit P55 letter through which the Lagos State Director of Public Prosecutions conveyed to the EFCC the Attorney-General of Lagos State’s instruction to formally delegate his prosecutorial powers in relation to offences under the Criminal Code Law and Criminal Procedure Law of Lagos State to both the Attorney-General of the Federation and the EFCC. In the instant case, as can be gleaned from the Information at page 2 and the 1st Amended Information as pages 91 – 702 of the Records of Appeal, the action against the accused person was prosecuted by the EFCC on behalf of the Federal Republic of Nigeria. In AMADI Vs. FRN [2008] 12 SC (Pt.III) 55; (2008) LPELR-441 (SC) Pg.17-18, Paras. C – A, the Supreme ourt of Nigeria held as follows:

“The position in criminal trial is different. In view of the high premium attached to speedy disposal of criminal cases, the Attorneys-General of the States delegate their powers to the various States Commissioners of Police who institute and prosecute

criminal matters in the name of such Commissioner of Police. Such powers are also delegated to the Federal Board of Internal Revenue, Nigeria Customs Service and lately EFCC by the Attorney-General of the Federation…” See also AKINGBOLA Vs. FRN & ANOR (2012) LPELR-8402 (CA) Pg.20-21, Paras. E – G, where this Court held that:

“… Anybody or authority is competent to initiate criminal proceedings against an offender, once he is granted the fiat to do so as we are all our brothers’ keepers… This includes an institution such as the EFCC set up to fight corruption in all its facets and economic crimes…”

The power to initiate criminal proceedings under the laws of a state as provided by Section 211(1) (b) of the Constitution of the Federal Republic of Nigeria, 1999 is not limited to the Attorney-General of the State because ‘any other person’ as used in Section 211(1)(b) includes agencies like the EFCC. See: DARIYE Vs. FRN (2015) LPELR-24398 (SC) g.36, Paras. E – G where the Supreme Court per NGWUTA JSC held that: “The offences in the indictment against the appellant are financial crimes and under S.13 (2) of the Economic and Financial Crimes Act, 2004 the Commission has powers to prosecute the appellant. The institution of proceedings against any person before any Court in Nigeria other than a Court Martial is not the exclusive prerogative of the Attorney-General of the Federation and/or his counterpart in the State.

S.174(1) (b) and (c) and S.211(1)(b) and (c). It is my view that the Respondent has powers to prosecute the appellant directly or through an agent.”

In the circumstances of this appeal therefore, the EFCC being an agency of the Federal Government having been expressly and clearly granted the fiat to initiate criminal proceedings under the criminal laws of Lagos State by Exhibit P55 is, in my view at liberty to institute such proceedings in the name of the Commission or in the name of the Federal Republic of Nigeria which they stand to represent and act for. The Appellant’s contention is therefore baseless and completely misconceived, the submission appears to be a design to enthrone technicalities over substantial justice, the Appellant has not presented any cogent material to establish that he suffered substantial injustice or prejudice occasioned by his trial in the name of the ‘Federal Republic of Nigeria’ as against his preferred ‘The People of Lagos State’. I think the attempt by the Appellant to hinge on this issue is frivolous, vexatious, and therefore a baseless alarm crying wolf by the Appellant where none exists.

This issue is resolved in favor of the 1st Respondent and against the Appellant.

ISSUE 2

The second issue to resolve is “Whether the prosecution had proved beyond reasonable doubt the allegations of stealing, forgery and uttering against the Appellant.” On the Counts relating to Stealing, Appellant argued that Exhibits D4 and DB clearly establish that Orange Drugs Limited, and not PW4, Chief Ezenna Anthony Ifeanyi-Chukwu is the owner of the sums of money totaling N61 Million alleged to have been stolen by the accused persons, and that the essential elements which the prosecution must establish in a case of stealing is that the property was fraudulently taken or fraudulently converted. It was also argued that the case against the Appellant relates to dispute involving the 2nd Respondent and PW4, a capital market operator and a client, arising from PW4’s investment of the sum of N135 Million for the purchase of shares of the Nigerian Breweries Ltd and is at best a breach of contract which has no element of criminality and ought not to have resulted in a criminal charge and conviction of the Appellant, that the issue should have been referred to the Investment and Securities Tribunal which has exclusive jurisdiction to hear and determine any question of law or dispute between capital market operators and their clients.

The Respondent submitted that the essential elements which the Respondent is expected to prove in a case of stealing are the owner of the thing stolen; that the thing stolen is capable being stolen and that the thing was fraudulently taken or converted and that the testimony of PW4 and Exhibits P7 – P12 and Exhibits D3 to DB positively proved that PW4 is the owner of the money fraudulently converted by the Appellant and 2nd Respondent. The 1st Respondent further contended that the testimony of PW 4 and Exhibits P7 – P12 and D3 to D8 satisfied the requirement that the money meant for purchase of Nigeria Breweries shares worth N135 Million is capable of being stolen; and that Exhibits P13 to P44, Exhibits P47 and P49 and the testimony of PW2 satisfies the elements of fraudulent conversion.

In evaluating the testimonies of the witnesses and the exhibits before him on the counts relating to stealing, the learned trial judge held at pages 205 – 209 of the Records of appeal as follows:

“The case of the prosecution comprised the oral testimonies of its 6 prosecution witnesses and exhibits P7 to P55.

The defense did not shake the credibility of any of the said witnesses, particularly PW2 and PW4 who gave the main testimonies, a number of them were not even cross-examined while the extra judicial statements of the 1st accused who is the alter-ego of the 2nd accused were not contested. I therefore do not have any reservation about any of the witnesses and I shall accord their testimonies the necessary evidential weight.

….

In evidence before the Court from the prosecution is exhibit P3, one of the admitted extra judicial statements of the 1st accused wherein he stated that: “I am the chairman/CEO of Thomas Kingsley Securities Limited, a stock broking firm with offices in Lagos, Ibadan, Owerri, Aba and Abuja. The complainant Mr. Tonny Ezenna is the Chairman of Orange Drugs Ltd, He was our valued customer and pursuant to our relationship the client gave us oral instructions/mandate to buy, sell and manage his portfolio. It is not correct that we had specific instructions/mandate in writing to buy sell and manage this portfolio but a general verbal instruction to buy and sell on his behalf. Pursuant to this a total sum of N135 million was paid for the purchase of the Nigerian Breweries shares between 15th May 2002 and 4th February 2003.”

The receipts of the various payments totaling N135 million issued by the 2rd accused and acknowledging receipt of the said sums from PW4 are in evidence as exhibits P7 to P12.

….

From the case presented by the prosecution and in particular exhibits P3, P4, P5 and P7 to P12, I hold that the prosecution has proved the ownership of the monies said to be stolen as being in PW4 as named in counts 2 to 19 of the information.

The next element is that the thing alleged to have been stolen is capable of being stolen. The article here is money. It seems to me not to be in contention that it was monies passed to the accused persons for certain purposes and therefore capable of being stolen.

This leads to the next element that monies were fraudulently taken or converted …

From the evidence adduced in this trial, however, the prosecution in this case proved all the specific amounts of stealing in counts 2 to 19 with the exception of count 5.

….

I have considered the totality of evidence presented by the prosecution on the allegations of stealing and, I hold that each of the counts apart from count 5, have been proved beyond reasonable doubt.”

The law is well settled that unless the findings of facts made by a trial Court are found to be perverse and cannot reasonably be supported by the evidence generated at the trial thereby leading to injustice; an appellate Court will not ordinarily disturb or interfere with such findings. The Appellant Court has no business interfering with proper findings of facts unless there is obvious misapprehension of the facts by the trial Court, or the learned trial Judge, in arriving at a decision took irrelevant materials into account or omitted to consider relevant materials, thereby arriving at a wrong and inappropriate conclusion. Proper evaluation of evidence at the trial is within the province of the trial Court having had the opportunity of seeing, hearing and watching the demeanor of the witnesses. See OKONJI Vs. THE STATE [1987] NWLR [Pt.52] 659; (1987) LPELR-2479 (SC) Pg.23, Paras. A – G; SULEMAN & ANOR vs. COP, PLATEAU STATE [2008] 8 NWLR (Pt.1089) 298; (2008) LPELR-3126 (SC) Pg.42, Paras. A – B; CPC Vs. INEC & ORS (2011) LPELR-8257 (SC) Pg.92-93, Paras. F – B; FRN Vs. DAIRO & ORS (2015) LPELR-24303 (SC) Pg. 48-49, Paras, D – C and FALEYE & ORS Vs. DADA & ORS (2016) LPELR-40297 (SC) Pg. 55-56, Paras. E – D where the Supreme Court per SANUSI JSC held as follows:

“It must be emphasized here and it is even settled law, that an appellate Court does not as a matter of practice or law interfere where trial Court unquestionably evaluates and justifiably upraises the facts. The reason for this practice is because it is the trial judge who takes down relevant evidence. Thereafter, when writing his ruling or judgment and the trial judge weighs the evidence in the surrounding circumstances of the case. That is called evaluation. When evaluation of evidence is properly done, the findings of that trial Court are difficult to be faulted by any appellate Court…”

In the instant case, the Appellant has failed to denigrate the findings of the learned trial judge on the counts of stealing as reproduced above. The trial Judge had the privilege of hearing and seeing the witnesses and observing their demeanor, this therefore means in the absence of concrete and cogent materials evidencing the fact that the findings are perverse and that a miscarriage of justice has occurred as a result of the findings, the decision of the trial Court will not be disturbed, The learned trial Judge from the materials before us neatly and comprehensively considered all the elements to be proved where an accused is charged for stealing and upon drawing inference from the evidence before him, he came to the conclusion that the prosecution proved the offence of stealing for which the Appellant was charged beyond reasonable doubt. I am in total agreement with the learned trial Judge.

On the counts relating to forgery, the Appellant submitted that the learned trial Judge rightly found that the alleged forged documents were purportedly issued by the 2nd Accused, Thomas Kingsley Securities Limited who is an artificial person to Ezenna Anthony Ifeanyi Chukwu. Appellant submitted that the prosecution must prove the allegation of forgery against the Appellant beyond reasonable doubt and that since the trial judge did not find that the said documents were forged by the Appellant there is therefore no prima facie evidence that the alleged forgery was done by the Appellant. Similarly, on the allegations of uttering the Appellant submitted that the particulars of the offences show that the documents allegedly uttered were purportedly issued by Thomas Kingsley Securities Limited to EzennaAnthony Ifeanyi Chukwu and not by the Appellant and that there is no prima facie evidence that the alleged uttering was done by the Appellant.

The 1st Respondent’s contention is that the elements of forgery which the Prosecution is expected to prove are that there is a document or writing which is forged and that the said forgery is by the accused person who knows that the said document or writing is false and yet intends that the forged documents be acted upon to the prejudice of the victim in the belief that it is genuine. 1st Respondent submitted that Exhibits P28, P30 – P36, P41, P43 and P44 were falsely presented by the Appellant and 2nd Respondent knew they were false and yet presented them as proofs of shares bought in Nigerian Breweries Plc which were indeed never bought.

1st Respondent argued that these false documents were acted upon by PW4 to his own prejudice and as a result of the fraudulent representation of the Appellant and 2nd Respondent, PW4 had only 40,000 units of shares with Nigeria Breweries Plc instead of 3.5 Million Shares based on the N135 Million given to the Appellant. It was further submitted that the Appellant is the directing mind of the 2nd Respondent and that the 1st Respondent proved all the essential elements that needed to be proved on the counts of forgery at the trial Court. On the allegations of uttering against the accused persons, learned counsel for the 1st Respondent submitted that it was proved at the trial Court that Exhibits P28, P30 – P36, P41, P43 and P44 were forged documents because they were designed to deceive and defraud and that the Appellant knowingly and fraudulently uttered the false documents by presenting them to PW4 as genuine which resulted in financial losses suffered by PW4.

On the counts relating to forgery, the learned trial Judge found at page 210 of the Records of Appeal as follows and I quote:

“The evidence adduced by the prosecution through PW4 was that the 1st accused after collecting money from PW4 as shown in exhibits P7 to P12, went to PW4 with the said documents which are in the name of 2nd accused, as evidence that the accused persons had purchased the shares of Nigerian Breweries Plc as instructed by PW4 and acting on this representation, PW4 believed the accused persons to his detriment. PW2 showed through exhibits P45, P46 and P47 that the documents told lies. …

The evidence before the Court and visible on the face of the documents is that they carry the name of the 2nd accused and purport to carry out share purchase instructions given to the accused persons through the 1st accused who had also given receipts, evidence P7 to P12 to PW4. The said receipts also carry the name of the 2nd accused.”

On the counts relating to uttering, the learned trial Judge found at page 212 of the Records of Appeal as follows:

“…I have earlier held that the documents were false and forged.

No explanation was offered by the accused persons and learned defense counsel simply relied on their arguments already considered and rejected on the counts of forgery.

I therefore hold that the prosecution has proved these counts and I find the 2 accused persons guilty as charged…”

In the judgment of the Lower Court at pages 204 – 205 of the Records of Appeal, the learned trial Judge again held as follows:

“The evidence led by the prosecution was consistent that 1st accused is the alter ego of the 2nd accused. No other operative of the 2nd accused was produced or indicted in the trial.

I am left with no other alternative than to find that the 1st accused is the alter ego and sole directing mind of the 2nd accused.”

In this appeal, the Appellant has not challenged the findings of the trial Court that, he is the alter ego of the 2nd Respondent yet, he seems to be arguing that the allegedly fraudulent documents carry the name of the 2nd Accused person and therefore the Appellant was not found to have been the one who forged the said documents. As rightly submitted by the 1st Respondent’s counsel, the Appellant is the directing mind of the 2nd Respondent, this fact remains uncontroverted and unchallenged by the Appellant. The Supreme Court in OYEBANJI Vs. STATE (2015) LPELR-24751 (SC) Pg.25, Paras. C – G per FABIYI JSC held as follows:

“Alter ego’ is said to mean ‘second self’. Under the doctrine of ‘alter ego’, Court merely disregards corporate entity and hold individuals responsible for act knowingly and intentionally done in the name of the corporation… 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 for his own private instrumentality in conducting his own personal business. Liability springs from fraud perpetuated not on the corporation but on third persons dealing with the corporation…”

See also, the N.N.S.C. Vs. SABANA [1988] NWLR (Pt.14) 23; (1988) LPELR-2015 (SC) Pg.61-62, Paras. F A where the Supreme Court of Nigeria held that: “A company, it has been said is an abstraction. It therefore acts through living persons. But if is not the act of every servant of the company that binds the company. Those whose acts bind the company are the alter ego – those persons who because of their position are the directing mind and will of the company, the very ego and corporate personality of the company…”
In the Appellant’s Statement at page 26 of the Records of the Appeal, he said as follows: “I am the Chairman/CEO of Thomas Kingsley Securities Limited, a stock broking firm with offices in Lagos, Ibadan, Owerri, Aba and Abuja. The complainant Mr. Tonny Ezenna is the Chairman of Orange Drugs Ltd. He was our valued customer and pursuant to o u r r e l a t i o n s h i p t h e c l i e n t g a v e u s o r a l instructions/mandate to buy, sell and manage his portfolio. It is not correct that we had specific instructions/mandate in writing to buy sell and manage this portfolio but a general verbal instruction to buy and sell on his behalf. Pursuant to this a total sum of N135 million was paid for the purchase of the Nigerian Breweries shares between 15th May 2002 and 4th February 2003…”

In the concluding paragraph of the statement, the Appellant said “Finally I wish to state that Mr. Abiodun Abodunde our Abuja Branch manager only accompanied me to SEC as a matter of duty. He was neither involved in nor properly knowledgeable of these issues.” Therefore, in the light of the evidence by the 2nd Respondent that he is solely responsible for dealing with the transactions between the 2nd Respondent and PW4 and that Mr. Abiodun Abodunde who is the Abuja Branch Manager of the 2nd Respondent is not involved or in the know of the issues; and also in the absence of any evidence before the Court that the Appellant is not the alter ego of the 2nd Respondent as held by the learned trial Judge, the learned trial Judge was therefore right in his conclusion that the Appellant and 2nd Respondent were guilty as charged on the various Counts of forgery and uttering. As already held, I have no reason to disturb the findings of the learned trial judge which has not been challenged by the Appellant. See OKONJI Vs. THE STATE (Supra); SULEMAN & ANOR Vs. COP, PLATEAU STATE (Supra); CPC Vs. INEC & ORS (Supra); FRN Vs. DAIRO & ORS (Supra) and FALEYE & ORS Vs. DADA & ORS (Supra). Issue No. 2 is hereby resolved against the Appellant in favor of the 1st Respondent.

ISSUE 3

The third issue is “Whether the Learned Trial Judge exercised his discretion judicially and judiciously when his Lordship sentenced the Appellant to jail without an option of fine and ordered the repayment of the sum of N61,000,000.00 to PW4 within 7 days (Ground xiv of the Notice of Appeal dated 18-07-05).”

On this issue, Appellant contended that the allegations of stealing, forgery and uttering against the Appellant in the instant case were not proved beyond reasonable doubt by the Prosecution as required under Section 138(1) of the Evidence Act, he therefore urged this Court to quash the conviction and sentence and to discharge and acquit him. Appellant also argued that the order of learned trial Judge that the Appellant and the 2nd Respondent should repay the sum of N61 Million back to PW4 within 7 days is not a consequential order as the said sum of N61 Million was not tendered as exhibit before the trial Court and there is no provision under the Sections 516, 390 (8)(b), 467 (2) (6) and 468 of the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003 which prescribes the payment of money to a complainant in a criminal case. He concluded that the learned trial Judge lacked the jurisdiction to make such an order which is a nullity.

Submitting on this issue, learned Counsel for the 1st Respondent submitted that the sentence imposed by the learned trial Judge is reasonable considering the prevalence of fraud in the Nigerian Society and the need for the authority to send clear signals to the general public that such misconduct for which the Appellant and 2nd Respondent were convicted and ordered to pay restitution to the victim will no longer be tolerated. Learned Counsel further submitted that the Appellant’s submission urging this Court to reduce the sentence on the Appellant is academic as the Appellant has completely served the term of his imprisonment. On the jurisdiction of the trial Court to make an order for the refund of N61 Million to PW4, the 1st Respondent contended that it is not when money is tendered in exhibit during trial that the Court can order restitution to victims of crime and that by Section 270 of the Criminal Procedure Law of Laws of Lagos State the trial Court is empowered to make such restitution as it did in the instant case.

On the first part of this issue, the Appellant was convicted and sentenced on Counts 2 to 4, 6 and 7 to 41 while he was discharged and acquitted on counts 1, 5 and 42 of the 43 Counts in the Information. The maximum sentence imposed on the Appellant was 5 years, while for some of the other counts; he was sentenced to less than 5 years.

The learned trial judge ordered that “All prison sentence shall run concurrently and shall commence from 3rd August, 2004 when the 1st accused was remanded in custody…” I entirely agreed the submissions of learned Counsel for the 1st Respondent that interfering with the sentences imposed the by Lower Court in this case or considering whether the said sentences should be lesser will amount to mere academic exercise because the sentences were to run concurrently and deemed to have commenced from 3rd August, 2004 which therefore means that as at the time of this judgment and for even the time of filing the Appellant’s Brief on the 11th day of May, 2012, which is about 8 years after a sentence of maximum of 5 years started running; the Appellant had long completely, effectively and totally served the term of his imprisonment. The law is well settled law that this Court and the Supreme Court cannot invest precious judicial time or dissipate substantial energy in considering academic or hypothetical issues which do not border on live issues between the parties and will be of no practical utilitarian value or benefit to the contending parties. See ADEOGUN & ORS Vs. FASHOGBON & ORS [2008] 17 NWLR (Pt.1115) 149 SC; (2008) LPELR-131 (SC) Pg . 37, paras . G – C; ODUTOLA & ORS Vs . MABOGUNJE & ORS (2013) LPELR-19909 (SC) Pg.37-38, Paras. C – A; IGWEGBE Vs. ANSELEM & ORS (2017) LPELR-42681 (CA) Pg.8-10, Paras. G – D and DIBIAGWU Vs. UZONWANNE & ORS (2017) LPELR-43074 (CA) Pg.16-17, Paras. D – B where this Court held that:

“A case or an appeal is said to be an academic exercise, when it would bring no benefit to any party, except, perhaps, the sensual/mental satisfaction to the party who brought it, where there is no live issue in the litigation/claim; that is, where what is presented to the Court for a decision (and if decided), cannot affect the parties thereto, in anyway, either because the fundamental nature of the relief sought has changed, or there is a changed circumstance, since the litigation started, such that in the end, the case or the appeal has become academic at the time it is due for hearing…”

I entirely agree with learned Counsel for the 1st Respondent that determination of any point relating to sentence is completely and totally academic, the issue is spent and therefore not deserving of any positive consideration.

The only point left in this issue is the question of whether the trial Court had and rightly exercised the jurisdiction to make an order for the refund of N61 Million to PW4 pursuant to the Criminal Code, Cap 17, Vol.2, Laws of Lagos State Nigeria, 2003.

In RAJI Vs. STATE (2012) LPELR-7968 (CA) Pg. 84-87, Paras. C – D My lord and learned brother OGBUINYA JCA held as follows and I quote:

“…the principle of law that a Court, not being a Santa clause, cannot dish out unsolicited claims to parties is, perhaps, unknown to the appellant, is riddle with exceptions. One of such qualifications, that is germane here, is that a Court is vested with jurisdiction to grant an unclaimed, relief suo motu when it is provided in an enactment. What the Lower Court did is a quintessence of this exception to unclaimed relief in adjudication. I have no reason to fault it.”

The Appellant is nettled by the order for restitution made by learned trial Judge when he said as follows at page 212-213 of the records:

“I have considered the passionate plea of the 2 learned Defense Counsel considering the professional career of the 1st accused as outlined by his Counsel, his situation is most pathetic.

However, the same way as the society frowns at and takes a serious view of violent financial crimes or brown collar crimes, for it, to make progress, it must not also give a slap on the wrist for white collar financial crimes. Armed robbery and pen robbery equally originate from the same location of greed and depravity and both must not be condoned or treated with kid gloves,

In the circumstance therefore, I shall balance the interest of the society with the personal circumstances of the accused persons as urged on me by their Counsel.

Accordingly, the accused persons are sentenced as follows………….…And in the circumstance of this case,

the accused persons are ordered to repay the sum of N61 million paid to them by PW4, Mr. Tony Ezenna to the said Mr. Tony Ezenna within 7 days hereof…

The submission by learned Counsel for the Appellant that, the issue of payment of the sum of N61,000,000.00 was not an issue before the Court is strange. By the provisions of Section 270 of the Criminal Procedure Act, where any person is convicted of having stolen or having received stolen property, the Court convicting him may order such property or a part thereof to be restored to the person who appears to it to be the owner thereof.

The Criminal Procedure Act made ample provision for restitution, the argument that there is no issue of restitution before the trial Court is stale, barren and spent. Our Criminal Justice system has since taken good care of the ancient obsolete, antique and stone-age belief that there is incentive in committing crime, I think the approach nowadays is to ensure that the proceeds of crime are completely and totally recovered from the criminal so that he will go home high and dry feeling that there is no incentive in committing any illegal act.

I think this issue has been subjected to substantial discourse, let me just conclude that, Appellant has nothing useful to urge this Court on this issue, it is also resolved in favor of the st Respondent against the Appellant.

Having resolved the three issues in favour of the 1st Respondent, it follows that Appellants appeal is sterile and lacks a scintilla of merit and therefore deserves to be and is hereby dismissed by me.

The judgment of the Lower Court delivered on the 7th day of June 2005, by OYEWOLE J, (Now JCA) then of the High Court of Lagos State in charge number ID/143C/2004 is affirmed by me.

OGAKWU, JCA.

I read in draft the comprehensive and incisive judgment of my learned brother Tijjani Abubakar, JCA, which has just been delivered.

The issues thrust up for determination have been exhaustively considered and resolved against the Appellant with remarkable sapience. The burden on the prosecution in a criminal trial is to prove the offences charged beyond reasonable doubt. This does not connote proof beyond all shadow of doubt. All that is expected of the prosecution is to prove that an offence was committed and that it was committed by the accused person. This is accomplished by proving the essential ingredients of the offence charged. See generally DAIRO vs. THE STATE (2017) LPELR (43724) 1 at 23-24 (SC), AFOLALU vs. THE STATE (2010) 15 NWLR (PT.1220) 584, BAKARE vs. THE STATE (1987) LPELR (714) 1 at 10-11 and MILLER vs. MINISTER OF PENSIONS (1947) 2 ALL ER 373.

In arriving at a decision that the offences charged have been proved beyond reasonable doubt, the trial Court has the obligation of evaluating the evidence to ascertain if the evidence adduced established the ingredients of the offence and also establishes that the culprit is the accused person.

Where the Court of trial which had the unparalleled advantage of having seen and heard the witnesses testify, properly evaluates the evidence and ascribes probative value thereto in arriving at the conclusion that the prosecution proved the offences charged beyond reasonable doubt, an appellate Court will not interfere. See EZE vs. FRN (2017) LPELR (4209 ) 1 at 78 (SC), UCHE vs. THE STATE (2015) 11 NWLR (PT.1470) 380 at 397, BUSARI vs. THE STATE (2015) 5 NWLR (PT 1452) 343 at 373 and SHURUMO vs. THE STATE (2010) 9 NWLR (PT.1226) 73. As clearly demonstrated in the leading judgment the findings made by the Lower Court are not perverse, the evidence adduced supports the findings made and there was no misapplication of the law to the facts or wrong application of some principle of law or procedure to the facts of the case. Put simply, no miscarriage of justice was occasioned in the evaluation of the evidence by the Lower Court.

It is for the foregoing reason and the more detailed reasoning, analysis and conclusion in the leading judgment, which I adopt as mine, that I also dismiss this appeal for being devoid of merit. The decision of the High Court of Lagos State Coram Judice: Oyewole, J. (as he then was) in CHARGE NO.ID/143C/2004 delivered on 7th June 2005 is affirmed.

OBASEKI-ADEJUMO, JCA.

I have had the privilege of reading before now, the well considered judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA. I agree with the limpid reasons enumerated therein to arrive at the conclusion that the Appellant’s appeal is unmeritorious.

I adopt the reasoning expressed on the three issues formulated by the Appellant’s counsel and which has been extensively determined in the leading judgment. I just wish to add my voice on the issue relating to the competence of the Economic and Financial Crimes Commission (EFCC) and/or Attorney General of the Federation (AGF) to prosecute State offences in the name of the Federal Republic of Nigeria. It is the contention of the Appellant’s counsel that having been granted a fiat vide Exhibit P55, the 1st Respondent can only file the Amended Information herein in the name of the “the People of Lagos State.” This submission is no doubt misconceived, showing a manifest misconception of the position of the law in this regard.

As my learned brother has rightly noted, in so far as the Attorney General of Lagos State has delegated his prosecutorial powers in relations to offences under the State Criminal Law to both the Attorney General of the Federation and the EFCC, it is within the prosecutorial competence of the AGF and EFCC to file an Information in the name of the Federal Republic of Nigeria or the EFCC as the case may be. See AMADI v FRN (2008) LPELR – 441 (SC) where the Supreme Court emphatically stated, in relation to prosecutorial powers delegated to Commissioners of olice by an Attorney General of the State, that the charge can be filed in the name of the Commissioner of Police. It is certainly not the contention of the Appellant that the EFCC cannot try an offence, as done in the instant case, in the name of the Federal Republic of Nigeria; I am therefore of the firm view that the Lower Court was right in assuming jurisdiction to hear and determine the Amended Information as presently constituted.

For the above reason, and those enumerated on the other issues considered in the leading Judgment just delivered by my learned brother, I too lend my voice in reaching the conclusion that the Appellant’s appeal lacks merit and is hereby dismissed.

Appearances:

Chief R. Clark SAN with Yinka Ayara For Appellant(s)

S. K. Atteh For Respondent(s)