NWAKAMMA V THE STATE

NWAKAMMA V THE STATE


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

ON FRIDAY, 13TH JULY, 2018


Appeal No: CA/A/741C/17
CITATION:

Before Their Lordships:

MOJEED ADEKUNLE OWOADE, JCA

CHIDI NWAOMA UWA, JCA

HAMMA AKAWU BARKA, JCA


BETWEEN

FAITH NWAKAMMA (OBINNA)

(APPELLANT)

AND

THE STATE

(RESPONDENT)


PRONOUNCEMENTS


A. CRIMINAL LAW
1. Charges – Appropriate time to object to a formal defect in a charge and effect of failure to do so

Appropriate time to object to a formal defect in a charge; the consequence of failure to do so

“The learned counsel to the Appellant challenged the competence of the charge in arguing that the charge did not disclose the elements to establish the offence of criminal breach of trust and that the elements were not proved. As rightly submitted by the learned DPP, the charge was read and explained to the appellant. She agreed that she understood the charge, she was represented by counsel Uwamusi Ikehisemon Oje (holding the brief of Moses Okeze Okafor) and pleaded ‘not guilty’ to all three counts of the charge and the matter was thereafter adjourned for hearing. At that stage, the charge was not faulted by the learned counsel to the appellant, page 91 of the printed records of appeal. Thereafter, the prosecution called witnesses, tendered Exhibits in the presence of the learned counsel all through the trial, including defence. The learned counsel to the appellant cannot rightly raise an objection to the competence of count one of the charge, at this stage on appeal. The law is that any objection to a charge for any defect or incompetence must be raised immediately after the charge has been read to the accused. See JOHN TIMOTHY VS. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR – 9346 (SC) PP. 8 – 9, PARAS. F – A; (2012) 6 SC (PT. III) P. 159; (2013) 4 NWLR (PT. 1344) P. 213; FEDERAL REPUBLIC OF NIGERIA VS. SENATOR OLAWOLE JULIUS ADEWUNMI (2007) 10 NWLR (PT. 1042) P. 399; (2007) 4 SC (PT. III) P. 30; (2008) 2 FWLR (PT. 424) P. 3227 and SHEHU VS. STATE (2010) (supra). I hold that count one of the charges is competent having complied with Section 202 of the Criminal Procedure Code (CPC), the charge contained all the particulars required as to date and place of the alleged offence and the person against whom it was committed.”Per UWA, J.C.A. read in context

2. Criminal Breach of Trust – Punishment for the offence of criminal breach of trust

Provisions of the law as regards the punishment for the offence of criminal breach of trust

“The parties are agreed on the elements to be proved for the offence of criminal breach of trust for which the appellant stood trial and was convicted. No doubt the appellant was entrusted with the collection of money on behalf of the company, enter the collected sums into a book and pay the money into the Bank account of the company. There is evidence earlier highlighted in this judgment that the appellant diverted the sum of N1.2Million Naira for her personal use, by buying shares in her name without the consent of her employer (the company) contrary to the argument of the learned counsel to the Appellant that she bought the shares for the company, the name of the company was not used to buy the shares and the company was not aware of the investment when it was made. Exhibit ST4 also is glaring to the effect that the Appellant acknowledged her financial impropriety of having removed the sum of N10,000,000.00 (Ten Million Naira) belonging to the company and had agreed to refund the said sum instalmentally. At no time did the Appellant refute the contents of Exhibit ST2 tendered through the PW1 showing a shortfall of the company to be N20,041,600.00 (Twenty Million, Forty One Thousand, Six Hundred Naira). There was no objection from the learned counsel to the appellant, page 104 of the printed records of appeal. Following Exhibit ST2, the appellant and the PW1 resolved that the Appellant should repay the sum of N10,000,000.00 (Ten Million Naira) which was reduced into writing and signed by the parties, Exhibit ST3. Exhibit ST3 was not objected to. The appellant had agreed to pay the money back intalmentally but defaulted by non-payment, thus, the matter was reported to the police and the subsequent charge. The prosecution proved that the Appellant converted money belonging to her employer, Jetan Agro Solution Ltd in the tune of N20,041,600.00 for her personal use. The evidence adduced by the prosecution was not at variance with the charge.

?The learned trial judge was satisfied with the contents of Exhibit ST1 made by the appellant admitting diverting funds belonging to her employer. Similarly, Exhibits ST3 and ST4 as well as the appellant’s statement to the police Exhibit SD’6′ which she made when all the events were fresh in her memory and nothing to show that she was coarsed to make Exhibit SD’6′. The learned trial judge was right to have held that there was no need to have conducted a trial within trial because at the trial, when the above Exhibits were tendered there was no objection as to their admissibility and voluntariness. I cannot fault the above view; I am at one with same, page 142 of the records. I hold that the learned trial judge was right to have convicted the Appellant on a proper evaluation of the evidence before the Court.

The learned counsel to the appellant faulted the trial Court’s decision that the appellant on conviction should pay compensation of the sum of N10,000,000.00 (Ten Million Naira) to the company in default of which she would serve a sentence of Thirty Six (36) Months prison term. On conviction of the appellant Lawal Abubakar Esq., who appeared for the State asked for compensation of N10,000,000.00 (Ten Million Naira) to be awarded to the nominal complainant under Section 78 of the Penal Code which provides as follows:

78 “Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”

(Underlined mine for emphasis) The above section is clear and unambiguous, a convict under the above section of the Penal Code may be made to pay compensation to any person injured by his offence, so in this case, the order of compensation is not out of place. The compensation may be in addition to or in substitution for any other punishment. In this case, the appellant as convict was sentenced to pay a fine of N150,000.00 in default of which she would serve a 24 months term of imprisonment, to which there is no quarrel. In addition, the appellant was sentenced to pay the sum of N10,000.00 compensation to the nominal complainant in default of which payment she shall serve a term of imprisonment of 36 months. The compensation is in addition to the fine and where she fails, substituted for any other punishment, which is the 36 months imprisonment. I hold that the sentence meted out by the learned trial judge is in order and I cannot fault it.”Per UWA, J.C.A. read in context

B. EVIDENCE
3. Confessional Statement – Power of the court can convict solely on the confessional statement of an accused person

Whether a court can convict solely on the confessional statement of an accused person

“The appellant positively, freely and directly confessed to the offence. Exhibits 1, ST3, ST4 and SD6 are confessional in nature and are enough to convict the Appellant. In the case of ACHABUA VS. STATE (1976) LPELR – 63 (SC) P. 8, PARAS. A – C, His Lordship, Obaseki, JSC reiterated the position of the law concerning confessional statements and convictions thus:

“It is settled law that, confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession (R.V. SYKES 8 CR APP. R. 223, R V. KANU 14 WACA 30, EDET OBOSI VS. THE STATE (1965) N.N.L.R. 119, PAUL ONOCHIE & 7 ORS VS. THE REPUBLIC (1966) NNLR 307 and JIMOH YESUFU VS. THE STATE (1975) 6 SC. 167).”

Similarly, in SHUAIB ABDU VS. THE STATE (2016) LPELR – 41461 (SC) P. 19, PARAS. D – E, per Ogunbiyi, JSC and ISAH VS. STATE (2017) LPELR – 43472 (SC) PP. 11 – 12, PARAS. E – F, per Bage, JSC.”Per UWA, J.C.A. read in context

4. Calling of Witnesses – Discretion of the prosecution in calling witnesses

“…The learned counsel to the Appellant had also argued that the prosecution failed to call vital witnesses while relying on Sections 169 and 149 (C) of the Evidence Act, 2011. I would say that if the prosecution failed to call any witness that the learned counsel felt was vital, he would have called such witness to testify on behalf of the Appellant. Section 149(D) of the Evidence Act, 2011 could not rightly be invoked against the prosecution as there is nothing on record to show or prove that the Respondent withheld any evidence.

Secondly, it is the duty of the prosecution to prove its case beyond reasonable doubt, and would call the witness it deems necessary in proof of its case, it could be a sole witness and need not call a host of witnesses. The important thing is to adduce material evidence that is relevant and material in proof of its case. In ALO CHUKWU VS. THE STATE (1992) LPELR – 854 (SC) P. 8, PARAS. B – C; (also reported in (1992) 1 NWLR (PT. 217) P. 255) his Lordship, Belgore, JSC (as he then was) on whether the prosecution is bound to call all material witnesses in proof of its case held that:

“In all criminal cases, it is the duty of the prosecution to call all material witnesses to prove its case. But, the prosecution shall call only those necessary to discharge this burden. Those witnesses whose evidence may not be material need not be called and if an accused strongly is of the view that a witness is material to his defence it is his duty to call him, not that of the prosecution.”

See also ODUNEYE VS. STATE (2001) L LR – 2245 (SC) particularly PP. 27 – 28, PARAS. B – A and OFOKE NWAMBE VS. THE STATE (1995) LPELR – 2100 (SC) PP. 26 – 27, PARAS. F – B (also reported in (1995) 3 NWLR (PT. 384) P. 385). I hold that there is no obligation on the part of the prosecution or rule of law that the prosecution must call a host of witnesses to prove its case. It is at its discretion to call whoever is necessary and material to prove its case. As I stated above, the evidence of a sole witness is enough to convict an accused person. See also SAMUEL ADAJE VS. THE STATE (1979) 6 – 9 SC 18 at PAGE 28; E.O. OKONOFUA & ANOR VS. THE STATE (1981) 6 – 7 SC 1 at 18 and OGOALA VS. THE STATE (1991) 2 NWLR (PT. 175) 509 at 527, OTEKI VS. A.G. BENDEL STATE 1986) 2 NWLR (PT. 24) 648 and MALLAM NUMO M. ALI & ANOR VS. THE STATE (1988) 1 NWLR (PT. 68) 1.”Per UWA, J.C.A. read in context

C. PRACTICE AND PROCEDURE
5. Mistake of Counsel/Court/Registry – Whether a party can be liable for the error or inadvertence of Court officials/Court registry

“I will start with the preliminary issue which was headed as “OBSERVATIONS” in the Respondent’s brief of argument but, termed preliminary objection when the appeal was argued. The Respondent had challenged the competence of the Notice of appeal at pages 150 – 158 of the printed records of appeal. On the face of the Notice of appeal and as argued by the learned DPP, the date of certification of the records is 28/8/17, which gave rise to the presumption that the Notice of Appeal was filed out of time, since the date of filing shows that it was filed on 14/9/17 with no leave of Court. To determine whether a Notice of Appeal or any other process of Court was filed within time or not, the Court looks at the date of filing. In the present case, the date clearly shown as the filing date of the Notice of appeal is 14/9/17, with the receipt number and the amount paid for filing hand written above the filing date. The judgment being challenged was delivered on 16/6/17, therefore, the Notice of appeal was filed within time, on the 90th day and not out of time. The certification of the Notice of appeal and the entire records of appeal is the work of the Court Registry and not that of counsel. The learned counsel to the Appellant has no hand or role to play in the certification of records apart from paying the necessary fees for certification and transmission of the records of appeal to this Court, which was done. The appellant therefore did all that he was expected to do and cannot be made to suffer or be blamed for the acts or omission of the Court Registry. The learned counsel to the Appellant had no business with the administrative functions of the Court Registry. If the Court Registry was careless with the date endorsed on the certification of the Notice of appeal and records, the appellant should not be blamed. The authorities cited and relied upon by the learned counsel to the appellant are applicable. See EDE and ANOR VS. MBA & ORS (2011) (supra), G.O. DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 12 SC (PT. 1) P. 1; (2005) 19 NWLR (PT. 959) P. 130; 1 FWLR (PT. 30 ) P. 1063 and BRITISH AMERICAN TOBACCO (NIG) LTD VS. A.G. OF OGUN STATE & ORS (2013) LPELR – 20674 (CA). The learned DPP insinuating that the learned counsel to the appellant connived with the registry to cover up the appeal filed out of time, to say the least, is in bad taste. The language was also not expected of and from a learned colleague of his caliber against the other. I also observed that the bad language ran through the Respondent’s brief of argument, it is discouraged. See ALHAJI ATIKU ABUBAKAR GCON & ORS VS. ALHAJI UMARU MUSA YA ‘DUA & ORS (2008) LPELR – 51 (SC) PP. 180 – 181, PARAS. G – D. I hold that the Notice of appeal filed on 14/9/17, was filed within time and therefore competent.”Per UWA, J.C.A. read in context

6. Issue of Jurisdiction – Appropriate time to raise an objection to the jurisdiction of Court can be raised

When an objection to the jurisdiction of Court can be raised

“The second arm of the observation or objection was that ground two (2) of the Notice of appeal which challenged the jurisdiction of the trial Court was not part of the decision of the trial Court. It is trite that the issue of jurisdiction can be raised any time, even at the Supreme Court. It could even be raised suo motu by the Court. Where the competence of a charge is challenged, it touches on the jurisdiction of the court to try the matter and could be raised at any time. In PDP & ORS VS. BARRISTER SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC) P. 92, PARAS. A – D, his Lordship, Muhammad, JSC on when the issue of jurisdiction could be raised summarized it thus: “It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See OMOKHAFE VS. ESEKHOMO (1993) LPELR – 2649 (SC) UKAEGBU VS. UGOJI (1991) 6 NWLR (PT. 196) 127, OMOMEJI & ORS VS. KOLAWOLE & ORS (2008) LPELR – 2650 (SC).”Per UWA, J.C.A. read in context


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


The High Court of Niger State, presided over by Ahmed A. Bima, J. in its judgment delivered on the 16th day of June, 2017 convicted the appellant for criminal breach of trust in the sum of N10,000,000.00 (Ten Million Naira) while the 2nd and 3rd accused persons, her husband and father, respectively charge along with her were discharged.

The background facts are that the Appellant was an employee of Jetta Agro Solutions Limited, Suleja, Niger State as a sales representative and rose to be the Secretary/Accountant of the company. Her schedule of duty included collection of sales receipts of each day, entering same into the sales book, totaling/balancing the accounts and would hand over the money and figures to the manager. It was alleged that the Appellant did record all the sales receipts in the company’s records between 2007 and 2008. Within the period of 2007 – 2008, auditing of the account of the company, it was discovered that there was a short fall on the remittance in the sum of N20,041,600.00k. The appellant was said to have left the service of the company (after she got married) in November, 2008. It was alleged that the Appellant used the company money in the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira) to buy shares for herself without the consent of the company. The company alleged that the Appellant had misappropriated the sum of N20,041,000.00 (Twenty Million, Forty One Thousand Naira) belonging to the company. It was made out that the Appellant had made an undertaking to pay to the company the sum of N10,000,000.00 (Ten Million Naira) but failed to do so which led to the investigation of the matter by the police, who charged the matter to Court, trial and conviction of the appellant, thus this appeal being dissatisfied with the decision of the trial Court.

The following issues were distilled for the determination of the appeal thus:

1. “Whether the charge upon which the Appellant was convicted is not incompetent for failing to disclose the essential elements of the offence of criminal breach of trust and if not, whether the evidence on record supports the finding that the Respondent proved the charge of criminal breach of trust. (Grounds 1 and 2)

2. Whether the failure of the trial Court to consider the evidence of PW3 and PW4 to the effect that their investigation did not disclose the sum of Twenty Million Naira (N20,000,000.00) in the nominal complainant’s company or in the account statement of the Appellant is not a breach of Appellants’ fair hearing and trial sufficient to discharge and acquit her. (Grounds 3 & 7)

3. Whether all the exhibits relied upon by the trial Court to convict the Appellant is admissible and credible to sustain the charge of criminal breach of trust. (Ground 4)

4. Whether the failure of the Respondent to call material witnesses and tender vital documents to prove the charge is not a fundamental vice which renders the conviction perverse and unjustified. (GROUND 5)

5. Whether the evidence called by the Respondent at the trial Court is inconsistent with the charge and if yes, whether the inconsistency is sufficient to discharge and acquit the Appellant. (GROUND 6)

6. Whether the offence of criminal breach of trust requires corroboration and if not, whether the finding of the trial Court that the Appellant refused to hand over and abandon (sic) her work corroborate the offence charged (GROUND 8)

7. Whether the learned trial judge was not in error when he found that the Appellant converted the money belonging to the complainant to her own use contrary to the evidence that the Appellant invested the money in shares for the nominal complainant’s company. (GROUND 9)

8. Whether the decision of the learned trial judge that the Appellant should pay compensation of Ten Million Naira (N10,000,000.00) to the nominal complainant in default of which she is to serve a sentence of Thirty Six Months prison terms is not unwarranted, unreasonable and against the weight of evidence.” (GROUNDS 10 & 11)

The Respondent on its part distilled a sole issue for the determination of the appeal thus:

“Whether from the totality of the evidence adduced by the prosecution, the prosecution did not prove the case against the Appellant beyond reasonable doubt to sustain the conviction.”

Before the appeal was argued, the learned Director of Public Prosecution (DPP) Niger State, M.G. Chiroma drew our attention to his preliminary objection (headed OBSERVATIONS from pages 2 – 5 of the Respondent’s brief of argument) to the appeal which he argued in his Respondent’s brief of argument filed on 27/4/18 but deemed properly filed on 22/5/18.

The Appellant’s response is at pages 1 – 4 of the reply brief filed on 9/5/18 but, deemed properly filed on 22/5/18.

In arguing the appeal, the learned counsel to the appellant John Ochogwu Esq., who settled the brief of argument filed on 6/12/17 but deemed properly filed on 22/5/18, relied on same in urging us to allow the appeal. It was submitted that the Appellant was charged under Section 312 of the Penal Code which is the punishment section while the offence is defined under Section 311. The ingredients required to make up the offence under Section 311 were highlighted, while reliance was placed on the following cases, YAKUBU IBRAHIM VS. COP (2010) LPELR-8984 (CA), CAPTAIN ABIDOYE VS. FRN (2013) 12 SC (PT. 1) 99 at PAGE 119, PARAGRAPHS 25 – 30, ONUOHA VS. THE STATE (1988) 3 NWLR (PT. 83) PAGE 460 and MAFA VS. STATE (2013) 3 NWLR (PT. 1342) 607 at 619, A – C. It was submitted that the vital elements of the offence of criminal breach of trust for which the Appellant stood trial and convicted were missing from the charge. It was submitted that Section 311 of the Penal Code created the offence while Section 312 punishes the offence. It was argued that dishonesty is an element in the charge which was not included in the framing of the charge, also, that the use to which the money was put was not included. The charge was said to be vague. Reliance was placed on the following cases, TIMOTHY VS. FEDERAL REPUBLIC OF NIGERIA (2008) ALL FWLR (402 1136, OLATUNBOSUN VS. STATE (2013) 17 NLR (PT. 1382) 167, OLOWU VS. NIGERIA NAVY ( 007) 1 ALL FWLR (PT. 350) 1278 and OKEKE & ORS VS. POLICE (1965) 2 ALL NLR 81. We were urged to acquit the Appellant because the ingredients of the offence were not proved.

In arguing the Appellant’s second issue, it was submitted that the trial Court did not consider the evidence of the PW3 and PW4 before arriving at its decision, to the effect that their investigation did not disclose the sum of N20,000,000.00 (Twenty Million Naira) in the nominal complainant’s company or in the statement of account of the Appellant.

It was contended that the evidence of the Managing Director and Chief Executive Officer of Jetan Agric Solutions Ltd, (Nwachukwu Eze) PW1, gave evidence to the effect that the Appellant retired the proceeds of sales daily to the Manager of the Company, Michael Obaji who ought to have been investigated by the Police and that no missing money was reported by Mr. Obaji. The credibility of Exhibits ST3 and ST4 (undertaking) were questioned to the effect that the undertaking was extracted under duress. It was also argued that it was the duty of the Respondent to prove whether the amount alleged missing was from the company’s account or cash. Also, that the trial Court did not give any reason for disbelieving the PW1, PW2, PW3 and PW4 and gave no reason of how it arrived at its decision. Reliance was placed on the cases of UBA Plc. VS. S.A.F.P.U. (2004) 3 NWLR (PT. 861) 516, WORU VS. STATE (2011) ALL FWLR (PT. 602) 1644 at 1670 – 1671. It was concluded on this issue that the Court had no jurisdiction to pick and choose which evidence to believe and which not to believe. See UDOH VS. STATE (1994) 2 NWLR (PT. 329) PAGE 672.

On the third issue, the learned counsel reviewed the contents of Exhibits ST1 – ST5 and STD6 – SD8. We were urged to discountenance Exhibits STD4, 6 and 7. It was contended that the Appellant retracted Exhibit STD6, while Exhibit SD7 did not implicate the Appellant and that Exhibit SD8 did not show any lodgment of N20,000,000.00 (Twenty Million Naira) into the Appellant’s account or that of the company. Also, that there was nothing to show the lodgment of the sum of N20,000,000.00 the Appellant was convicted for. It was argued that Exhibit STD8 is consistent with the evidence of the PW3 and PW4 which in turn contradicted Exhibits STD3, 4 and 5 which is alleged to have destroyed the Respondent’s case. Reliance was placed on the case of IBEH VS. STATE (1997) 1 NWLR (PT. 484) P. 38, PARAS. D – E. It was concluded on this issue that the Court should restrict itself to evidence before it.

On the Appellant’s fourth issue, it was submitted that the Respondent ought to have called Mr. Michael Obaji, the Manager of the Company to whom the Appellant used to retire money to. It was contended that Mr. Obaji was a vital witness who ought to have been called as a witness by the Respondent.

It was also argued that the store keeper who discovered that the store was empty and the products sold, Mr. Job, ought to have been called to testify to give details of the inventory of the products supplied, when supplied and the value of the products. It was argued that some of the customers that supplied the products ought to have been called and also those whom the products were supplied to without receiving payment ought to have been called. Further, that vital documents were not tendered, such as the receipts and sales book of the company from where Exhibit ST5 was produced, the petition from the nominal complainant, the report of the investigation by PW3 and PW4 and the statement of account of the company. We were urged to hold that these documents would have been against the Respondent if produced.

The fifth issue alleged that the evidence adduced by the Respondent was inconsistent with the charge. It was argued that the amount the Appellant was alleged to have committed the breach of trust over the sum of N20,041,600.00 but, that the evidence was inconsistent with the amount stated in the charge, even though the Respondent tendered Exhibits ST3 and ST4 with a view to show that the Appellant accepted taking the sum of N10,000,000.00 (Ten Million Naira) from the company and made an undertaking to repay the said sum. It was submitted that Exhibit ST3 alone created substantial doubt in the Respondent’s case and questions the authenticity of the allegation that money was misappropriated. It was contended that Exhibits ST1, ST3 and ST4 are inconsistent, assuming they were admissible, as to the amount said to be missing. It was submitted that the trial Court ought not to have relied on these Exhibits and the inconsistency ought to have been resolved in favour of the Appellant.

The sixth issue is whether the offence of criminal breach of trust requires corroboration and if not, whether the finding by the trial Court that the Appellant refused to hand over and abandoned her work corroborates the offence charged? It was submitted once again that no reason was given by the trial Court why it preferred the evidence of the Respondent to that of the Appellant. It was argued that the issue of the Appellant abandoning her work in the company only came up in Court through the evidence of the PW1 and PW2.

Further, that offences that require corroboration are those under Sections 201, 202, 203 and 204 of the Evidence Act and Criminal Breach of Trust is not one of them.

On the seventh issue, it was argued that there was no proof that the Appellant benefitted from the dividends of the Zenith Bank shares. The element of dishonesty was said not to have been proved. It was contended that the investment with N1,200,000.00 (One Million, Two Hundred Thousand Naira) was made on behalf of the company.

The eighth and last issue contended that the decision of the trial Court that the Appellant should pay compensation of N10,000,000.00 (Ten Million Naira) to the nominal complainant in default, serve a sentence of Thirty Six Months Prison Term is unreasonable and against the weight of evidence. It was argued that Section 78 of the Penal Code is clear to the effect that a judge could order compensation to any person injured and could be only in addition to either a sentence and/or a fine or in substitution for any other punishment. It was concluded that a judge has no jurisdiction to expand the provisions of a statute.

The Respondent’s preliminary objection (headed as OBSERVATION) Challenged the competence of the Notice of Appeal, at pages 150 – 158 of the records. It was observed that the certification of the Notice of appeal and the records was done on the 28th day of August, 2017 while the Notice of appeal showed that it was filed on 14th day of September, 2017. It was submitted that this Court has no jurisdiction to entertain the appeal since from the records; it was filed out of time without the leave of Court. We were urged to dismiss the appeal.

The Second observation alleged that Grounds 1 and 2 are incompetent as well as issue one distilled from the two grounds. It was submitted that the issue of an incompetent charge was not raised at the trial Court. It was argued that ground 2 of the Notice of appeal did not flow from the judgment of the trial Court and is therefore incompetent. It was submitted that ground one which formed part of the grounds from which issue one was formulated from is also incompetent and liable to be struck out. Reliance was placed on the following cases, SPLINTERS NIGERIA
LIMITED VS. OASIS FINANCE LIMITED (2013) 18 NWLR (PT. 1385) 188, 212 and JEV. VS. IYORTYOM (2014) 14 NWLR (PT. 1428) 575, 608. We were urged to strike out grounds 1 and 2 of the Notice of Appeal as well as issue one distilled therefrom.

On the other hand, the learned DPP Responded to the issues as formulated by the Appellant, even though a sole issue had been identified for the determination of the appeal by the Respondent. In response to the first issue, it was agreed that in every criminal trial, the onus is on the prosecution to prove its case against the accused person beyond reasonable doubt but not beyond all shadow of doubt in line with Section 135 of the Evidence Act, 2011 (as amended), reliance was placed on the cases of AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) P. 589 at P. 593 RATIO 3, OKOH VS. STATE (2014) 8 NWLR (PT. 1410) P. 502, at . 511 RATIO 11 and BASSEY VS. STATE (2012) 12 NWLR (PT. 1314) P. 209 at P. 218.

It was submitted by the learned DPP that there is evidence that the appellant used part of the company’s money for her personal use by using N1,200,000.00 to invest in shares without the consent of her employer, the company. It was argued that the charge is as contemplated by Sections 200 – 202 of the Criminal Procedure Code and not incompetent. It was submitted that the charge was read and explained to the appellant in the presence of counsel, trial commenced and the trial concluded without any objection to the charge. It was argued that the competence of the charge ought to have been raised after the charge was read to the appellant as an accused person. The c h a l l e n g e w a s a r g u e d t o h a v e b e e n r a i s e d late. See SHEHU VS. STATE (2010) 8 NWLR (PT. 1195) P. 112.

Under issue two, it was submitted that, Exhibits ST3 and ST4 said to have been obtained under duress were tendered through the PW1 (Nwachukwu Eze) without any objection and in the presence of the appellant’s learned counsel. Also, that the appellant signed Exhibits ST3 and ST4. Further, that it was the appellant’s husband who informed the company that the appellant had invested the sum of N1, 0.000.00 of the Company’s money in shares.

The alleged contradictions under issue three were said not to have been shown by the appellant in respect of Exhibits ST3, 4 and 5, also that Exhibit 5 alleged to have been used by the trial Court to arrive at its decision was not utilized by the trial Court even though admitted in evidence. It was further submitted that Exhibits SD6, ST1, ST3 and ST4 confessional statements were admitted in evidence without objection. The Exhibits were said to have satisfied the requirements of confessional statements and are enough for the conviction of the accused where positive, free/voluntarily made and direct. Reliance was placed on the cases of FATAI VS. STATE (2013) NWLR (PT. 1361) P. 1 at P. 4, AKWUOBI VS. STATE (2017) 2 NWLR (PT. 1550) P. 421 at 426 – 427.

On the fourth issue, it was submitted that the prosecution did not withhold any evidence as argued by the learned counsel to the appellant. Further, that the prosecution is not bound to call any particular witness or a host of witnesses to prove its case but that the prosecution called the necessary witness it needed to prove its case, PW1 and tendered Exhibits SD6, ST1, ST3 and ST4 to prove its case. Reliance was placed on the cases of RASAKI VS. STATE (2011) 16 NWLR (PT. 1273) P. 251 at P. 270 and ILOIGIWE VS. STATE (2012) 18 NWLR (PT. 1331) P. 1 at P. 11.

On the fifth issue, the learned DPP highlighted the elements to be proved to establish the guilt of the accused person for breach of trust under Section 312 of the Penal Code in line with those highlighted by the learned counsel to the Appellant. It was submitted that there is evidence that the appellant was entrusted with the company’s money, to enter same into the account book and paying into the account of the company in the Bank. Also, that there is evidence that she diverted the sum of N1,200,000.00 which she invested in shares for herself without the consent of the company. Further, that there is evidence that the appellant used the sum of N20,041,600.00 belonging to the company, the reason why she wrote Exhibit ST4 which corroborated the evidence that she mis-appropriated the above sum belonging to her employer, Jetan Agro Solution Ltd. Exhibit ST3 was said to be binding on the Appellant who had begged to be allowed to refund the sum of N10,000,000.00 instead of the sum of N20,041,600.00 that was misappropriated. It was submitted that the evidence of the PW1, Exhibits SD6, ST3 and ST4 proved that the appellant misappropriated the company’s money for her personal use, also Exhibits ST1, ST2.

In response to issues 6, 7, 8, it was submitted that the offence of Criminal breach of trust does not require corroboration before the prosecution’s case can be believed. Exhibits ST1, ST2, ST3 and ST4 were said to have provided the required corroboration.

It was submitted that the Appellant executed Exhibit ST4 and is bound by the agreement on how she was to repay the sum of N10,000,000.00 to Jetan Agro Solution Ltd. The trial Court was said to have been right to have awarded the compensation of N10,000,000.00 in default of which the Appellant would serve a prison term of thirty six (36) months.

In response to the observation or preliminary objection of the learned DPP, it was submitted that to determine whether a Notice of Appeal was filed within time, the Court looks at the filing date. The Notice of appeal in this appeal was said to have been filed on 14th September, 2017 within Ninety (90) days of the date of delivery of the judgment of 16th June, 2 17. While relying on the case of POATSON GRAPHIC ARTS TRADE LTD & ANOR VS. NDIC (2017) LPELR – 42567 (CA). We were urged to discountenance the objection.

The error in the date of certification of the records was said to have been from the Registry since the Appellant did all that was required to be done. See EDE VS. MBA (2011)
18 NWLR (PT. 1278) 236 AT 266 – 267, PARAS. F – D.

On the issue of the alleged incompetence of the charge not having been raised at the trial Court, (ground 2 of the Notice of Appeal), it was submitted that ground 2 challenged the jurisdiction of the trial Court to have entertained the matter, which could be raised at any time.

See JOSHUA CHIBI DARIYE VS. FRN (2015) LPELR – 24398 (SC) P. 36, PARAS D – E and AKPAN VS. BOB & ORS (2010) 17 NWLR (PT. 1223) 421. Grounds 1 and 2 were argued to be competent.

The issue of competence or otherwise of the charge was re–argued as well as the alleged inconsistencies in the Respondent’s case on Exhibit’s ST1, 3, 4 and 6, it was submitted that evidence wrongly admitted can be rejected by the appellate Court, we were urged to do so. We were once again urged to allow the appeal.

I will start with the preliminary issue which was headed as “OBSERVATIONS” in the Respondent’s brief of argument but, termed preliminary objection when the appeal was argued. The Respondent had challenged the competence of the Notice of appeal at pages 150 – 158 of the printed records of appeal. On the face of the Notice of appeal and as argued by the learned DPP, the date of certification of the records is 28/8/17, which gave rise to the presumption that the Notice of Appeal was filed out of time, since the date of filing shows that it was filed on 14/9/17 with no leave of Court. To determine whether a Notice of Appeal or any other process of Court was filed within time or not, the Court looks at the date of filing. In the present case, the date clearly shown as the filing date of the Notice of appeal is 14/9/17, with the receipt number and the amount paid for filing hand written above the filing date. The judgment being challenged was delivered on 16/6/17, therefore, the Notice of appeal was filed within time, on the 90th day and not out of time.

The certification of the Notice of appeal and the entire records of appeal is the work of the Court Registry and not that of counsel. The learned counsel to the Appellant has no hand or role to play in the certification of records apart from paying the necessary fees for certification and transmission of the records of appeal to this Court, which was done. The appellant therefore did all that he was expected to do and cannot be made to suffer or be blamed for the acts or omission of the Court Registry. The learned counsel to the Appellant had no business with the administrative functions of the Court Registry. If the Court Registry was careless with the date endorsed on the certification of the Notice of appeal and records, the appellant should not be blamed. The authorities cited and relied upon by the learned counsel to the appellant are applicable. See EDE and ANOR VS. MBA & ORS (2011) (supra), G.O. DUKE VS. AKPABUYO LOCAL GOVERNMENT (2005) 12 SC (PT. 1) P. 1; (2005) 19 NWLR (PT. 959) P. 130; 1 FWLR (PT. 302) P. 1063 and BRITISH AMERICAN TOBACCO (NIG) LTD VS. A.G. OF OGUN STATE & ORS (2013) LPELR – 20674 (CA). The learned DPP insinuating that the learned counsel to the appellant connived with the registry to cover up the appeal filed out of time, to say the least, is in bad taste. The language was also not expected of and from a learned colleague of his caliber against the other.

I also observed that the bad language ran through the Respondent’s brief of argument, it is discouraged. See ALHAJI ATIKU ABUBAKAR GCON & ORS VS. ALHAJI UMARU MUSA YAR’DUA & ORS (2008) LPELR – 51 (SC) PP. 180 – 181, PARAS. G – D. I hold that the Notice of appeal filed on 14/9/17, was filed within time and therefore competent.

The second arm of the observation or objection was that ground two (2) of the Notice of appeal which challenged the jurisdiction of the trial Court was not part of the decision of the trial Court. It is trite that the issue of jurisdiction can be raised any time, even at the Supreme Court. It could even be raised suo motu by the Court. Where the competence of a charge is challenged, it touches on the jurisdiction of the court to try the matter and could be raised at any time. In PDP & ORS VS. BARRISTER SOPULUCHUKWU E. EZEONWUKA & ANOR (2017) LPELR – 42563 (SC) P. 92, PARAS. A – D, his Lordship, Muhammad, JSC on when the issue of jurisdiction could be raised summarized it thus:

“It has long been settled that the issue of jurisdiction may, by whatever name, form or shade, be raised and at any stage. The issue, the principle further allows, may be raised even viva voce and for the first time in this Court. The rationale behind the principle lies in the fact that jurisdiction remains the fulcrum of any valid adjudication as without it the entire proceedings of the Court, no matter how well conducted, is an exercise in futility being a total nullity. See OMOKHAFE VS. ESEKHOMO (1993) LPELR – 2649 (SC)UKAEGBU VS. UGOJI (1991) 6 NWLR (PT. 196) 127, OMOMEJI & ORS VS. KOLAWOLE & ORS (2008) LPELR – 650 (SC).”

The above decision of the Apex Court says it all. The objection to ground two (2) of the Notice of appeal is unfounded; it is competent as well as issue one distilled from ground one and two of the Notice of Appeal. As a whole, the observation or preliminary objection of the learned DPP is without merit, same is dismissed.

On the substantive appeal, I would summarize the issues formulated by the parties simply as:

“From the evidence adduced before the trial Court, was the Court right to have convicted the appellant?”

The learned counsel to the Appellant challenged the competence of the charge in arguing that the charge did not disclose the elements to establish the offence of criminal breach of trust and that the elements were not proved. As rightly submitted by the learned DPP, the charge was read and explained to the appellant. She agreed that she understood the charge, she was represented by counsel Uwamusi Ikehisemon Oje (holding the brief of Moses Okeze Okafor) and pleaded ‘not guilty’ to all three counts of the charge and the matter was thereafter adjourned for hearing. At that stage, the charge was not faulted by the learned counsel to the appellant, page 91 of the printed records of appeal. Thereafter, the prosecution called witnesses, tendered Exhibits in the presence of the learned counsel all through the trial, including defence. The learned counsel to the appellant cannot rightly raise an objection to the competence of count one of the charge, at this stage on appeal. The law is that any objection to a charge for any defect or incompetence must be raised immediately after the charge has been read to the accused. See JOHN TIMOTHY VS. FEDERAL REPUBLIC OF NIGERIA (2012) LPELR – 9346 (SC) PP. 8 – 9, PARAS. F – A; (2012) 6 SC (PT. III) P. 159; (2013) 4 NWLR (PT. 1344) P. 213; FEDERAL REPUBLIC OF NIGERIA VS. SENATOR OLAWOLE JULIUS ADEWUNMI (2007) 10 NWLR (PT. 1042) P. 399; (2007) 4 SC (PT. III) P. 30; (2008) 2 FWLR (PT. 424) P. 3227 and SHEHU VS. STATE (2010) (supra). I hold that count one of the charges is competent having complied with Section 202 of the Criminal Procedure Code (CPC), the charge contained all the particulars required as to date and place of the alleged offence and the person against whom it was committed.

The learned counsel to the appellant challenged the evaluation of the evidence of the prosecution witnesses amongst others and alleged a breach of the appellant’s right to fair hearing and trial. The evidence of the PW3 (Sgt NO. 210360 Timothy Omachi) one of the investigating officers was to the effect that the Appellant admitted before him that she took and invested the sum of N1.2Million Naira belonging to the company and that he did not see the sum of N20,000,000.00 in the appellant’s Zenith Bank Account. The evidence of the PW4 (Sgt. No. 199872 Ahmed Danladi) was along the same line, in addition, he stated that money from sales was usually collected by the accountant and paid into the company account by the accountant. Apart from the evidence of the PW3 and PW4, the PW1 (Nwachukwu Eze) the Managing Director of the Company tendered Exhibits ST3 and ST4 without any objection. The learned counsel to the appellant alleged these Exhibits were made under duress. At page 105 of the printed records, there is nothing to show that these Exhibits were objected to on the allegation of having been obtained under duress. The appellant, her husband and a representative of the company signed Exhibit ST3, a document where the Appellant and her husband (Tochukwu Obinna) acknowledged and agreed to refund the sum of N10,000,000.00 (Ten Million Naira) instalmentally as settlement for the unaccounted amount missing from the proceeds of sale of the company. Similarly, Exhibit ST4 is also an acknowledgment of the Appellant’s financial impropriety and agreement to repay N10,000,000.00 instalmentally as settlement for the missing amount from the company. The Appellant and her husband signed the document. The Appellant has not denied signing Exhibit ST4 and the learned counsel to the Appellant has not refuted the fact that these Exhibits were admitted in evidence without the issue of having been obtained under duress being raised, talkless proof of same. The learned trial judge properly evaluated the evidence of the parties at pages 136 – 143 of the printed records. As rightly argued by the learned DPP, the learned trial judge did not utilize Exhibit ST5 in arriving at its decision but only highlighted what the Exhibit is and where it was extracted from, which was not before the Court, pages 139 – 140 of the printed records of appeal.

Exhibit ST1 is also a document/letter written to the Director of the company (PW1) and his wife whom the Appellant addressed as “Mum and Dad” admitted in evidence through the W1 acknowledging having invested N1.2Million Naira belonging to the company in her name. Also, Exhibit SD6 was tendered through the PW3, the statement of the Appellant without any objection. The appellant positively, freely and directly confessed to the offence. Exhibits 1, ST3, ST4 and SD6 are confessional in nature and are enough to convict the Appellant.

In the case of ACHABUA VS. STATE (1976) LPELR – 63 (SC) P. 8, PARAS. A – C, His Lordship, Obaseki, JSC reiterated the position of the law concerning confessional statements and convictions thus:

“It is settled law that, confession alone is sufficient to support conviction without corroboration so long as the Court is satisfied of the truth of the confession (R.V. SYKES 8 CR APP. R. 223, R V. KANU 14 WACA 30, EDET OBOSI VS. THE STATE (1965) N.N.L.R. 119, PAUL ONOCHIE & 7 ORS VS. THE REPUBLIC (1966) NNLR 307 and JIMOH YESUFU VS. THE STATE (1976) 6 SC. 167).”

Similarly, in SHUAIB ABDU VS. THE STATE (2016) LPELR – 41461 (SC) P. 19, PARAS. D – E, per Ogunbiyi, JSC and ISAH VS. STATE (2017) LPELR – 43472 (SC) PP. 11 – 12, PARAS. E – F, per Bage, JSC.

The learned counsel to the Appellant had also argued that the prosecution failed to call vital witnesses while relying on Sections 169 and 149 (C) of the Evidence Act, 2011. I would say that if the prosecution failed to call any witness that the learned counsel felt was vital, he would have called such witness to testify on behalf of the Appellant.

Section 149(D) of the Evidence Act, 2011 could not rightly be invoked against the prosecution as there is nothing on record to show or prove that the Respondent withheld any evidence.

Secondly, it is the duty of the prosecution to prove its case beyond reasonable doubt, and would call the witness it deems necessary in proof of its case, it could be a sole witness and need not call a host of witnesses. The important thing is to adduce material evidence that is relevant and material in proof of its case. In ALOCHUKWU VS. THE STATE (1992) LPELR – 854 (SC) P. 8, PARAS. B – C; (also reported in (1992) 1 NWLR (PT. 217) P. 255) his Lordship, Belgore, JSC (as he then was) on whether the prosecution is bound to call all material witnesses in proof of its case held that:

“In all criminal cases, it is the duty of the prosecution to call all material witnesses to prove its case. But, the prosecution shall call only those necessary to discharge this burden. Those witnesses whose evidence may not be material need not be called and if an accused strongly is of the view that a witness is material to his defence it is his duty to call him, not that of the prosecution.”

See also ODUNEYE VS. STATE (2001) LPELR – 2245 (SC) particularly PP. 27 – 28, PARAS. B – A and OFOKE NWAMBE VS. THE STATE (1995) LPELR – 2100 (SC) PP. 26 – 27, PARAS. F – B (also reported in (1995) 3 NWLR (PT. 384) P. 385). I hold that there is no obligation on the part of the prosecution or rule of law that the prosecution must call a host of witnesses to prove its case. It is at its discretion to call whoever is necessary and material to prove its case. As I stated above, the evidence of a sole witness is enough to convict an accused person. See also SAMUEL ADAJE VS. THE STATE (1979) 6 – 9 SC 18 at PAGE 28; E.O. OKONOFUA & ANOR VS. THE STATE (1981) 6 – 7 SC 1 at 18 and OGOALA VS. THE STATE (1991) 2 NWLR (PT. 175) 509 at 527, OTEKI VS. A.G. BENDEL STATE (1986) 2 NWLR (PT. 24) 648 and MALLAM NUMO M. ALI & ANOR VS. THE STATE (1988) 1 NWLR (PT. 68) 1.

The parties are agreed on the elements to be proved for the offence of criminal breach of trust for which the appellant stood trial and was convicted. No doubt the appellant was entrusted with the collection of money on behalf of the company, enter the collected sums into a book and pay the money into the Bank account of the company. There is evidence earlier highlighted in this judgment that the appellant diverted the sum of N1.2Million Naira for her personal use, by buying shares in her name without the consent of her employer (the company) contrary to the argument of the learned counsel to the Appellant that she bought the shares for the company, the name of the company was not used to buy the shares and the company was not aware of the investment when it was made.

Exhibit ST4 also is glaring to the effect that the Appellant acknowledged her financial impropriety of having removed the sum of N10,000,000.00 (Ten Million Naira) belonging to the company and had agreed to refund the said sum instalmentally. At no time did the Appellant refute the contents of Exhibit ST2 tendered through the PW1 showing a shortfall of the company to be N20,041,600.00 (Twenty Million, Forty One Thousand, Six Hundred Naira). There was no objection from the learned counsel to the appellant, page 104 of the printed records of appeal. Following Exhibit ST2, the appellant and the PW1 resolved that the Appellant should repay the sum of N10,000,000.00 (Ten Million Naira) which was reduced into writing and signed by the parties, Exhibit ST3. Exhibit ST3 was not objected to. The appellant had agreed to pay the money back intalmentally but defaulted by non-payment, thus, the matter was reported to the police and the subsequent charge. The prosecution proved that the Appellant converted money belonging to her employer, Jetan Agro Solution Ltd in the tune of N20,041,600.00 for her personal use. The evidence adduced by the prosecution was not at variance with the charge.

The learned trial judge was satisfied with the contents of Exhibit ST1 made by the appellant admitting diverting funds belonging to her employer. Similarly, Exhibits ST3 and ST4 as well as the appellant’s statement to the police Exhibit SD’6’ which she made when all the events were fresh in her memory and nothing to show that she was coarsed to make Exhibit SD’6’. The learned trial judge was right to have held that there was no need to have conducted a trial within trial because at the trial, when the above Exhibits were tendered there was no objection as to their admissibility and voluntariness. I cannot fault the above view; I am at one with same, page 142 of the records. I hold that the learned trial judge was right to have convicted the Appellant on a proper evaluation of the evidence before the Court.

The learned counsel to the appellant faulted the trial Court’s decision that the appellant on conviction should pay compensation of the sum of N10,000,000.00 (Ten Million Naira) to the company in default of which she would serve a sentence of Thirty Six (36) Months prison term. On conviction of the appellant Lawal Abubakar Esq., who appeared for the State asked for compensation of N10,000,000.00 (Ten Million Naira) to be awarded to the nominal complainant under Section 78 of the Penal Code which provides as follows:

78 “Any person who is convicted of an offence under this Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”

(Underlined mine for emphasis)

The above section is clear and unambiguous, a convict under the above section of the Penal Code may be made to pay compensation to any person injured by his offence, so in this case, the order of compensation is not out of place. The compensation may be in addition to or in substitution for any other punishment. In this case, the appellant as convict was sentenced to pay a fine of N150,000.00 in default of which she would serve a 24 months term of imprisonment, to which there is no quarrel. In addition, the appellant was sentenced to pay the sum of N10,000.00 compensation to the nominal complainant in default of which payment she shall serve a term of imprisonment of 36 months. The compensation is in addition to the fine and where she fails, substituted for any other punishment, which is the 36 months imprisonment. I hold that the sentence meted out by the learned trial judge is in order and I cannot fault it.

In sum, I resolve the issue as reformulated against the Appellant. The resultant effect is that I find no merit in this appeal, I dismiss it in its entirety and affirm the judgment of the learned trial judge in respect of the conviction and sentence of the Appellant.

OWOADE, J.C.A.

I had the privilege of reading in draft the judgment delivered by my learned brother, Chidi Uwa, JCA. I agree with the reasoning and conclusion. I also dismiss the appeal and affirm the conviction and sentence on the Appellant by the Court below.

BARKA, J.C.A.

I had the privilege of reading in draft the judgment of my learned brother CHIDI NWAOMA UWA JCA, and entirely agree with the reasoning and the inevitable conclusion that the appeal be dismissed for want of substance and its hereby dismissed. I also affirm the conviction and sentence imposed on the Appellant.

Appearances:

John Ochogwu, Esq . with him, Ijeoma Unachukwu, Esq. For Appellant(s)

M.G. Chiroma, Director of Public Prosecutions (DPP) Niger State with him, J.S. Anyadanyi, Principal State Counsel, Ministry of Justice, Niger State. For Respondent(s)