⦿ CASE SUMMARY OF:
Adeyinka Ajiboye v. Federal Republic of Nigeria (2014) – CA
by NSA PaulPipAr
– Beyond reasonable doubt;
– Criminal breach Of trust;
Federal Republic of Nigeria
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Musa Hassan Alkali, J.C.A
* FOR THE APPELLANT
– Dr. D. A. Ariyoosu;
* FOR THE RESPONDENT
– Rotimi Oyedepo Iseoluwa;
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the Kwara State High Court of Justice Ilorin Suit No. KWS/56.C.2011 which was delivered by Hon. Justice M. AbdulGafar on 11th day of February, 2014 whereby the appellant was convicted and sentenced to 3 years imprisonment for the offences of theft and criminal breach of trust under section 289 and 314 of the penal code.
Trial within trial was conducted on two occasions in order to determine the voluntariness or otherwise of the statements credited to the appellant. In respect of the 1st trial within trial proceeding arising from the evidence of police officer (ASP) Sunday Afolayan PW2, the court overruled the objection and admitted the statements in evidence marking them exhibits P5-9 respectively see page 183 for the proceedings. In respect of the 2nd trial within trial arising from the evidence of Inspector Yisa Ibrahim, whose duty as a detective is to investigate financial crime PW3. The court at page 215 overruled the objection and admitted the statement of the accused made on the 15/7/2009 in evidence and mark it exhibit P21.
In a considered judgment, the learned trial judge convicted the appellant, sentenced him to terms of imprisonment ordered him to pay compensation to Guaranty Trust Bank PLC (the complainant) and forfeited the property of the appellant to Guaranty Trust Bank PLC.
The Appellant being dissatisfied has appealed to this court.
1. Whether, in view of circumstances of this case, the appellant could safely be convicted and sentenced as done by the trial judge on the basis of the fact the appellant was the ATM custodian of Ilorin GRA branch of Guaranty Trust Bank Plc.
2. Whether the statements credited to the appellant as his confessional statements are admissible and worthy of being relied upon in convicting the appellant.
3. Whether the learned trial judge was right in relying on sections 19 and 20 of the EFCC Act to order forfeiture of the appellant’s property to GTBank PLC having ordered him to pay compensation to GT Bank PLC.
4. Whether, on the totality of the evidence in this case, the respondent proved the offences alleged against the appellant as required by law.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
On issue one, the Court of Appeal stated: “It is my firm view that the prosecution has successfully discharged the burden placed on it by proving all the essential elements of the offences preferred against the appellant beyond reasonable doubt.”
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. At pages 214 215 paragraphs 21 and 22 of the record of preceding i.e. the conclusion of the trial within trial within trial the learned trial judge made his findings of facts from the evidence of the respondent and the appellant. In admitting the statement his Lordship held as follows: “I therefore hold that the accused freely and voluntarily made the statement. I reject the story of the accused that he was hand cuffed chain in the legs and slapped and coerced into making the statement. I therefore over rule the objection and admit the statement of the accused made on 15/7/2009 in evidence and mark it exhibit P21.”
I rest my resolution in support of the learned trial judge above.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The answer to that is [that] the learned trial Judge was right to forfeit as stipulated under section 20(1)(b) of the EFCC Act, 2004. Section 78 of the penal code reads thus: “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.”
Based on the above, the learned trial Judge was right in relying on Sections 19 and 20 (1) (b) of the EFCC Act to order the forfeiture of the appellant’s properties to Guaranty Trust Bank Plc having ordered him to pay compensation to GT Bank plc. Also Section 78 of the penal code to cure the whole defect of the proceeds of the crimes. Issue three is hereby resolved in favour of the respondent against the appellant.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. Judgment of the court below see page 275-276 of the record. The judge held as follows: “I have considered the evidence of the prosecution against the accused. I have reviewed the evidence of PW1 PW7. I am of the view that PW1, PW4, PW6 and PW7 establish clearly that the accused was the ATM custodian at Ilorin GRA branch of GTBank who is charged with the reasonability (Sic: responsibility) of loading cash into ATM machines. I prefer their evidence to the case the accused tried to set up of there being many ATM custodians with him being one of them. PW1, PW4, PW5, PW6 and PW 7 impressed me as witnesses of truth. I prefer their evidence to the evidence of the accused in this regard. Furthermore exhibit P2-P4 which the accused admitted preparing shows PW5, PW6, and PW7 were only involved on occasions that were few and far between. It therefore strengthens the evidence of PW1, PW4, PW5, PW6 and PW7 that the accused was the person in charge of ATM operations of the branch and others deputized in his absence.”
He further held at pages 280-281 paragraphs 67-68 as follows:
“The only defence that I can make out of the defendant’s case is that he was not the only one in charge as PW5, PW6, and PW7 were also ATM custodian loading cash into the machines. His oral confession and the confessional statement has removed the wind out of the sail of the defence with the accused exonerating them. I therefore find that the prosecution has established beyond reasonable doubt that the accused committed theft of the sum of N25,000,000.00 the property of the GTBank and I convict him of count 2 as charge. With regard to count 4 alleging criminal breach of trust of the sum of N25,000,000.00 entrusted to him by his employers. I hold that from the evidence of PW1, PW4, PW5 and PW7 the accused as the ATM custodian of GRA, Ilorin branch an employee of GTBank PLC was entrusted with cash meant, for dispense at ATM machines in the Bank. The evidence of the witnesses, exhibits P2-P4, exhibits P9-P11, the oral confession of the accused as well as the confessional statements in exhibits P5-P8 and P21 Proved beyond reasonable doubt that accused committed criminal breach of trust in respect of the money entrusted to him. See Onogu v. The State (1995) 6 NWLR (Pt. 401) 276. Consequently, I convict the accused on count 4.”
I uphold the right judgment delivered by the learned trial judge.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
Alake v. State (1997) 7 NWLR (Pt. 205) 567 at 591 where His lordship Honorable Justice Niki Tobi defines what amount to a reasonable doubt in the context of our criminal jurisdiction as follow: “It is generally believed that once there is the slightest doubt in the mind of the court, then the accused must, as a matter of law be discharged and acquitted. I think that is rather a wide statement of the legal position. That was the position I took in Sanni Adisa v. The State (1991) 1 NWLR (Pt. 168) 490. I have since realized that I went too far. I think the objective ‘reasonable’ qualifying the noun “doubt” should not give rise to that every wide statement. I think the position should be this. Once the ingredients of the particular offence the accused person is charged with are proved, that constitutes proof beyond reasonable doubt otherwise not. I must apologize to the profession for stating the principles so wide and beyond its already onerous ambit.”
In Miller v. Minister of Pension (1947) 2 ALL ER 323 H, Denning J (As he then was) reflected on the meaning and import of proof beyond reasonable doubt in relation to the protection of the community when the commission of crime is in issue. His lordship said: “The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibility to defeat the course of justice. If evidence is as strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in least probable” the case is proved beyond reasonable doubt but nothing short of that will suffice.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
In any criminal case as in this the prosecution is not bound to call every witness who are present at locus criminals. It is only to call witness who would give relevant evidence in proof of its case. – Alkali, JSC. Ajiboye v. FRN (2014)