➥ CASE SUMMARY OF:
Pastor Glory Okeoghene Abrefera V. Federal Republic of Nigeria (FRN) (CA/B/114C/2015, 9 MAR 2018)
by Branham Chima.
➥ ISSUES RAISED
Proof of stealing;
Proof of conspiracy;
Imprisonment of different courts.
➥ CASE FACT/HISTORY
The Appellant was arraigned before the trial Court along with one Reverend Vincent Okpogo and Mustard Seed Micro Investment Limited on a nine-count charge of conspiracy to steal and stealing. It was alleged that the Appellant conspired to steal and stole the following: 1. Five million Naira from PW1 Johnson Malemi; 2. Fourteen million, five hundred thousand Naira from PW2 Fregene Patrick Bemigho; 3. Twenty-five million from PW3 Chief Eyituoye Awani although ten million Naira was returned. These monies were deposited into the accounts of the 3rd Accused (Mustard Seed Micro Investment Limited) Company in which the Appellant admitted to be both the Chairman and a Director. PW1 deposited the money directly into the account of the 3rd Accused, PW2 deposited his money with the accused persons, while PW3 raised a cheque in favour of the 3rd Accused and handed it to the Appellant.
After a full fledged hearing, the Appellant was convicted on all nine counts and sentenced to seven years imprisonment on all counts to start running after the Appellant might have finished serving a previous sentence of 10 years imprisonment imposed by the Federal High Court, Asaba for operating a bank without a licence.
This is an appeal against the judgment of the High Court of Delta State, Warri Judicial Division delivered on the 10th day of December, 2014 where the trial Court convicted and sentenced the appellant to 7 years imprisonment with hard labour.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether having regard to the totality of the evidence from the record, the learned trial judge was right in holding that the prosecution proved the charges of conspiracy and stealing against the appellant beyond reasonable doubt?
RESOLUTION: IN RESPONDENT’S FAVOUR. (The prosecution proved the charges).
[THE ACCUSED WORKED IN UNISON – THIS PROVES CONSPIRACY
‘The mere fact that the Appellant with his cohort worked in unison to persuade PW1 – 3 to part with the various large sums of money into the coffers of the 3rd accused company is guilty of conspiracy with another to commit the fraudulent act. The learned trial Judge thus held: I am afraid I cannot be persuaded by the arguments of the learned counsel for the 1st and 2nd accused persons after seeing and hearing all the witnesses for the prosecution and the accused persons. The way they sweet talked PWS 1, 2 and 3.. In the case of ERIM V. THE STATE (1994) 5 NWLR (Pt. 346) 522, the Apex Court had this to say: In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other but the criminal design alleged must be common to all . In the instant case, the criminal design common to both accused persons was 3rd accused company where their monies were deposited.’
THERE WAS AN INTENTION TO DEFRAUD THE COMPLAINANTS
‘Another crucial point here is whether from the totality of the evidence adduced by the prosecution there was an intention to defraud PWS 1, 2 and 3. It also suffices to say that the salient point here in the issue for determination is to establish the presence of a mens rea in the act of the appellant which would lead to the inference of stealing in the form of a fraudulent act. Thus mens rea is the mental element of an offence. In sum, the mens rea can be deciphered from the facts of the case hereinafter highlighted in the following terms: 1. The Appellant, as the Chairman and Director of the 3rd accused person, knowingly engaged in the business of banking and other financial activities without due licence from the Central Bank of Nigeria contrary to the Banking and Other financial Institutions Act of Nigeria. 2. The Appellant, as the chairman and Director of the 3rd accused person, not being licensed to carry on banking business offered returns that were far above the approved benchmark by the Central Bank of Nigeria and was found criminally guilty of an offence by the Federal High Court sitting in Asaba. 3. The Appellant collected monies from the PW1, PW2 and PW3. If the Appellants counsel wants to contend specifics, the Appellant was the one who received the cheque of N25,000,000.00 from the PW3 raised in the name of the 3rd accused person. 4. The Appellant, as a Principal Officer of the 3rd accused Company, stopped paying the interest as promised in the agreement. 5. The Appellant took responsibility by attempting to pay back some of the monies owed, a fact that the Appellants counsel acknowledged in paragraph 4.19 of page 12 of Appellants brief in trying to disprove that there was an intention to defraud. 6. The accused persons unilaterally decided to shut down their branch without informing the PW1, PW2 and PW3 on a day that they told them to come for their money. 7. The Appellant issued a dud cheque to PW3 which is an offence on its own. 8. The Appellant tried to pacify PW3 by offering to him ownership to a property that from the case before the lower Court, was a subject of litigation.’
THE OFFENCE OF STEALING WAS PROVED BEFORE THE LOWER COURT
‘It is however of no moment that the Appellant refunded N10, 000,000 to PW3 after much fuss from PW3. A balance of N15, 000,000 was still outstanding. S. 383 (1) of the Criminal Code of Delta State clearly states as follows: A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with the intent, in the case of money, to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner. The offence starts and stops at the taking and not whether the taker intends to return the item taken. At the point of taking, under a misrepresentation as in this case, you have deprived the person of that thing and whether or not you intend to return it or a part of it is immaterial. In common parlance, the deed is said to have been done. See ATANO V. V.A.G. OF BENDEL STATE (1988) 2 NWLR (Pt. 75) 201 @ 244. It is in evidence that both PW1 and PW2 did not get back their capitals which were paid into the coffers of the 3rd accused company. From the totality of all of the above summation, this issue is resolved in favour of the Respondent against the Appellant.’]
II. Whether the sentence of seven (7) years imprisonment imposed on the appellant by the learned trial judge is not excessive and liable to be reviewed downward?
RESOLUTION: IN RESPONDENT’S FAVOUR. (Imprisonment imposed is not excessive).
[THE IMPRISONMENT IMPOSED IS PROPER
‘I have taken into consideration the fact that evidence reveals that the Appellant is already serving a jail term of 10 years passed by the Federal High Court, Asaba for operating a bank without licence and this borders on the same transaction as in the case before the lower Court. PW1 confirmed that fact when he thus stated: I was not regular at the hearing of the Federal High Court, Asaba. I know 1st and 2nd accused were convicted and sentenced for carrying out banking business without a valid licence. The learned trial Judge considered the evidence as demonstrated and tested before him and came to the inevitable conclusion that the prosecution had proved the counts of conspiracy and stealing as alleged, thus imposing the sentence of 7 years imprisonment on the Appellant. I am therefore in tandem with the said decision of the lower Court and in the result this issue is resolved in favour of the Respondent against the Appellant.’]
III. Whether the learned trial judge was right in holding that the seven years sentence imposed on the Appellant shall start running at the expiration of whatever prison term that the appellant is presently serving?
RESOLUTION: IN RESPONDENT’S FAVOUR.
[THIS SENTENCE AND THE PREVIOUS ONE AT THE FHC HAS NO CORRELATION
‘No doubt there was evidence before the lower Court that the appellant had been tried, convicted and sentenced to 10 years imprisonment for operating a bank without licence at the Federal High Court. Let me categorically state here that the said trial even though it emanated from the same transaction was not before the trial Court at Asaba. The conviction and sentence of the Appellant at the lower Court will have no correlation with the matter that existed at the Federal High Court. The learned trial Judge followed the guiding principles in sentencing and thus acted judiciously and judicially. The history of the previous record of the accused person is that he is presently serving a 10 years sentence imposed on him by the Federal High Court in a judgment delivered on the 7th day of January, 2013. Learned counsel Ogbodu stated that he was quite aware of the said sentence. The learned trial Jurist felt there was need to pass a sentence that would act as a deterrent to others in similar situations. He then decided that the 7 years jail sentence should run after the expiration of the 10 years jail term imposed by the Federal High Court. I am in total agreement with the line of reasoning of the lower Court. The 7 years jail term should start to run at the expiration of the 10 years jail term earlier imposed on the Appellant by the Federal High Court. This issue is also resolved against the Appellant.’]
‘In sum, and from the totality of all of the above, this appeal is hereby dismissed. Accordingly, the judgment of the lower Court delivered on the 10th Day of December, 2014 is affirmed.’
➥ FURTHER DICTA:
⦿ WHAT CONSTITUTES CONSPIRACY; CONSPIRACY IS USUALLY PROVED BY CIRCUMSTANTIAL EVIDENCE
In legal parlance, conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or legal act by illegal means. The actual agreement alone constitutes the offence and it is not necessary to prove that the act has in fact been committed. See OBIAKOR V. THE STATE (2002) 100 LRCN 1716 @ 1719. Where persons are charged with conspiracy and with offence committed in pursuance of it as in the instant case, conviction for conspiracy is usually predicated on circumstantial evidence which must be of such a quality that irresistibly compels the Court to infer the guilt of the accused person. See POSU and ANOR. V. THE STATE (2011) 193 LRCN 52 @ 69. Conspiracy as rightly held by the lower Court is seldom proved by direct evidence but by circumstantial evidence and inference from certain proven acts. See ODUNEYE V. THE STATE (2001) 83 LRCN 1 @ 16. — P.M. Ekpe JCA.
⦿ PRINCIPLE OF LIFTING THE VEIL
However, it is settled that a corporate entity once registered is robed with a distinct legal personality separate from its members although there are instances in line with the Companies and Allied Act and other laws such as the Pension Reform Act, The Employees Compensation Act, Personal Income Tax Act where the veil of incorporation is lifted to identify individual members and principal officers of a company in order to either avert injustice or render primitive measures for non-compliance. — P.M. Ekpe JCA.
⦿ MEANING OF HONESTY
Learned appellants counsel argued that the appellant was never dishonest in his dealings with the complainants of the lower Court. I shall however indulge the appellant with an explanation of dishonesty which in simple and ordinary parlance connotes a lack of honesty. It is defined in MARIAM WEBSTER DICTIONARY as the quality of being fair and truthful. It also refers to a fact of moral character which connotes positive and virtuous attributes such as integrity, truthfulness, straight forwardness of conduct along with the absence of lying, cheating and theft. — P.M. Ekpe JCA.
Pastor Glory Okeoghene Abrefera
Federal Republic of Nigeria
➥ LEAD JUDGEMENT DELIVERED BY:
Philomena Mbua Ekpe, J.C.A.
⦿ FOR THE APPELLANT(S)
Ayo Asala Esq.
⦿ FOR THE RESPONDENT(S)
U.A.E Akporherhe (Miss).
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)