ABREFERA v. FEDERAL REPUBLIC OF NIGERIA (2018)

In The Court of Appeal of Nigeria

On Friday, the 9th day of March, 2018

CA/B/114C/2015

Before Their Lordships

PHILOMENA MBUA EKPE  Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI  Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN  Justice of The Court of Appeal of Nigeria


Between

PASTOR GLORY OKEOGHENE ABREFERA-Appellant

AND

FEDERAL REPUBLIC OF NIGERIA-Respondent

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PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): 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.
FACTS OF THE CASE:
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.
On a plea of Not Guilty, the case proceeded to hearing during which the Prosecution called six witnesses and tendered thirty-seven exhibits.
In his defense, the Appellant testified that the said monies were an investment for which PW1, PW2 and PW3 were entitled to a monthly interest of 4%, and gave evidence that they indeed paid the interest until they started experiencing financial crises as a result of economic meltdown. Appellant also argued that the transaction between them was of a civil nature based on a mutual agreement. 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.
The Appellant filed a notice of appeal on the 3rd day of March 2015, raising two grounds of appeal. The grounds of appeal shorn of their particulars are as follows:
Ground One – The learned trial Judge erred in law and thereby occasioned a miscarriage of justice in holding that:
On the evidence as demonstrated and tested before me the prosecution has proved the counts of conspiracy and the counts of stealing under Sections 516 and 390(9) of the Criminal Code of Delta State against each of the 1st and 2nd accused persons beyond reasonable doubt.
Ground Two – Judgment of the learned trial judge appealed against is unreasonable, unwarranted and cannot be supported having regard to the evidence.

From the two grounds of appeal, learned counsel for the Appellant distilled three issues for determination to wit:
Issue One:
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.
Issue Two:
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.
Issue Three:
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.
On the 15th day of November, 2017, this Court ordered that the appeal be heard on the appellant’s brief alone.
The following issues were raised for determination by the Appellant:
1. 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.
2. 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.
3. 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 whateve
prison term that the appellant is presently serving.
ISSUE ONE:
Appellant submitted that the learned trial Judge was wrong to have held that the prosecution proved the charges of conspiracy to defraud and stealing against

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the Appellant beyond reasonable doubt.
Appellant argued that to sustain a charge of stealing the following must be proven:
i. That the thing stolen is capable of being stolen;
ii. That the Appellant has the intention of permanently depriving the owner of the thing stolen;
iii. That he was dishonest; and
iv. That he had unlawfully appropriated the thing stolen to his use. MUHAMMED V. STATE (2000) FWLR (Pt. 30) 2623.
He made reference to Section 383(1) of the Criminal Code Law Cap C21, Laws of Delta State 2006, thus:
A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or the use of any other person anything capable of being stolen is said to steal that thing.

On the ingredients for the offence of conspiracy, Appellant made reference to the case of NJOVENS V. STATE(1998) ACLR Pg. 264 where the following were stated as the ingredients which must all be proven, thus:
i. There must be two or more persons;
ii. They must form a common intention;
iii. The common intention must be toward prosecuting an unlawful purpose;

iv. An offence must be committed in the process; and
v. The offence must be of such a nature that its commission was a probable consequence.

He further argued that the Prosecution did not prove beyond reasonable doubt, a key ingredient of stealing which is that the Appellant acted dishonestly with the intention of permanently depriving the owners of the various sum which form the subject matter of the nine-count charge against the Appellant.
That it was the evidence of PW1 to PW3 that they entered into an agreement with the Appellant based on the representation by Mrs. Caroline Idike (the employee of the 3rd Accused Company in which the Appellant was the Director) after which they invested various sums of monies upon which they received interests on a monthly basis, until the 3rd Accused stopped paying. He argued that the receipts for monies paid were tendered along with the agreements entered into between the parties. Appellant also contended that under cross-examination, PW2 admitted thus:
The attached documents to the receipts are like an agreement between myself and the 3rd Defendant. My grievance with the accused person is non-compliance with the said agreements.
Appellant further argued that what emerged was a civil transaction between PW1, PW2 and PW3 and the 3rd accused person, which were all documented in writing. He said receipts were given for these transactions and interests were paid in line with the agreements before the financial crises, and that when the prosecution witnesses demanded for a refund of the monies deposited, the accused persons made efforts to do so.
Having regard to the above points, the Appellant’s counsel submitted that the learned trial Judge was wrong to hold that there was clear intention on the part of the Appellant to defraud PW1, PW2 and PW3. He further surmised that there was no finding of Court nor evidence advanced by the Prosecution that the Appellant took the money that was paid by PW1, PW2 and PW3 or that he converted the money to his personal use.
Counsel argued that the unchallenged evidence before the lower Court was that the money was deposited with the 3rd accused person  a limited liability company with a separate legal personality. Counsel thus submitted that the Prosecution failed to prove there was a taking of the money by the Appellant. Counsel agreed with the learned trial Judge that the only issue for determination was whether there had been a fraudulent taking or conversion of the monies and further argued that the position the learned trial Judge took in pages 353 to 354 of the Record of Appeal that the way the 1st and 2nd accused persons sweet-talked PW1, PW2 and PW3; locked up their premises when they could not pay capital or interest; issued dud cheques, promised a building to the PW3 that was the subject of litigation; and the 1st Accused (Appellant in this case) being fished out in Lagos and not the Effurun office of the 3rd accused, point irresistibly to show an intention to defraud, is not supported by the totality of the evidence on record and does not represent the position of the law in establishing fraud.
Counsel submitted that the criteria for proving fraud was the presence of actus reus and mens rea and that there was no fraudulent intent but simply a risky business transaction gone awry. He said this business transaction was willingly entered into by PW1, PW2 & PW3 and counsel pointed out that the fact that they

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were persuaded by the marketers to enter into the transaction is not ipso facto evidence of an intention to defraud. Counsel again stated that the fact that cheques were issued by the Appellant towards the payment of the capital was a demonstration of genuine intention on the part of the Appellant to pay back the money deposited with the 3rd accused person. He made reference to the evidence on record that PW3 was paid N10,000,00 from his deposit.
Learned counsel posited that it was wrong to infer intention to defraud from the mere fact that Appellant was apprehended in Lagos State and not at his business premises in Warri because Appellant explained (as captured on the record) that when it became obvious that they could no longer control the customers demanding for the repayment of their deposit, they took the decision to close down the office in Warri and that he relocated to Lagos in furtherance of his effort to raise funds to pay the depositors.
Counsel thus urged this Honourable Court to hold that the prosecution failed to prove the intention to defraud on the Appellant’s part and accordingly set aside the Judgment of the lower Court and discharge and acquit the appellant on this ground.
ISSUE TWO:
Counsel submitted that the maximum sentence of 7 years imposed on the appellant without an option of fine by the lower Court is excessive and liable to be interfered with by this Honourable Court in its appellate jurisdiction.

He stated that it is settled that a trial Court has the discretion to impose sentence after conviction, such discretion being subject to judicial and judicious exercise. See AGBANYI V. STATE (1995) 1 NWLR (Pt. 369) 1 at 23.
Counsel stated the principles guiding sentencing as stated in FAMOROTI V. FRN (2016) All FWLR (Pt. 856) 366 at 418 that the trial Court is bound to consider thus:
i. The seriousness of the offence charged;
ii. The prevalence of the offence in the area;
iii. The remorse shown by the convict;
iv. Whether or not the convict is a first offender and his age; and
v. Prevailing attitude of the populace to the offence of that kind.

Counsel resonated his stance especially in the light of the fact that the Appellant was already serving a ten-year imprisonment term passed by the Federal High Court, Asaba for operating a bank without a licence. He also argued that since both cases emanated from the same transaction, a further sentence of seven years is unreasonably excessive and urged this honourable Court to review it downwards or give the Appellant the option of fine. Counsel further contended that the sentence was also untenable with no relevance to the charges proffered against the accused because of the reference by the lower Court to the 3rd Accused as a wonder bank and wonder investment companies.
Counsel submitted that the State High Court does not have the jurisdiction to try an offence relating to the operation of banks, and that it amounted to speculation on the part of the learned trial Judge to conclude that the Appellant was operating a wonder bank.
He concluded that a Court sentence should be done with the aim of reforming the convict and not to perpetually keep him in incarceration, and consequently urged this honourable Court to interfere with the sentence.
ISSUE THREE:
Counsel submitted that the learned trial Judge was wrong to hold that the sentence of seven 
years passed on the Appellant after his conviction would start to run from the completion of whatever sentence the Appellant was serving at the time of conviction and sentence.
In view of the already highlighted facts regarding the type of offender the Appellant is; and the fact that there is already a pending sentence which he is observing as pronounced by a Federal High Court; and the fact that both cases emanated from the same transaction, Counsel argued that it is trite law that the sentence imposed should be made to run concurrently and not consecutively.
He further stated that but for the limited jurisdiction of the Federal High Court, the prosecution would have also included the present charges at the Federal Court. Counsel made reference to RUNSAWE V. COP (1968) NMLR 112 at 116 and thus urged this honourable Court to set aside the order of the trial Court and direct that the sentence should run from the date of judgment or concurrently with the ten-year imprisonment term imposed by the Federal High Court.
RESOLUTION:
I have however adopted the three issues formulated by the Appellant and I intend to use same in the

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determination of this appeal.
ISSUE ONE:
On this issue, learned counsel for the Appellant contended that the trial Court was wrong in holding that the prosecution proved the charges of conspiracy and stealing against the appellant beyond reasonable doubt. 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 & 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 & 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.
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 & 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. 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 & 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 Appellant’s 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 Appellant’s counsel acknowledged in paragraph 4.19 of page 12 of Appellant’s 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.
Learned counsel for the appellant however argued that the monies allegedly misappropriated were never paid directly to the appellant but to the 3rd accused person who is a limited liability company with a distinct legal entity. Counsel also contended that the Appellant made concerted

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efforts to pay back the said monies.
The principle of lifting the veil of incorporation is trite here.
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.
The above mentioned principle is instructive as it was aptly applied by the appellant since the accused persons had offered to pay back the monies allegedly appropriated by them in the course of doing business with the complainants. It is hereby noted that the appellant was making spirited attempts to pacify the depositors by issuing dud cheques as principal officers in the company. The learned appellants counsel’s argument thus violates the principle of quod approbo non reprobo. The mere fact that the accused persons tried to pay back the said monies shows that the 3rd accused is not a separate legal entity and the Appellant is not allowed to approbate and reprobate as he deems fit.
Learned appellant’s 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.
In the instant case, the culprit (the Appellant) persuaded his victims to part with various sums of money to wit:
Two million naira in the first instance, followed by fourteen million, five hundred thousand naira and then twenty-five million naira in the 3rd instance.
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 & 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.
ISSUE TWO:
Whether the sentence of 7 years imprisonment imposed on the Appellant by the 
learned trial Judge is not excessive and liable to be reviewed downward.
Learned Appellants counsel has conceded the fact that a trial Court has the discretion of imposing sentence after conviction and that such discretion must be exercised judicially and judiciously.
See TSAKU V. THE STATE (1986) 1 NWLR (Pt. 17) 516 @ 521.
See also ISANG V. THE STATE (1996) 9 NWLR (Pt. 133) 458.

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 & 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

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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.
ISSUE THREE:
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.

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.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read in draft the judgment just delivered by my learned brother P.M. EKPE, JCA. The reasoning and conclusions arrived thereat are quite apt and I adopt same as mine. I have nothing further to add.
In the same vein, I hold that the appeal lacks merit and it is hereby dismissed. I abide by the consequential order made in the lead judgment.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Philomena Mbua Ekpe, JCA.
I agree with the opinion of my learned brother that this appeal is devoid of any merit and that it ought to be dismissed, notwithstanding the fact that the appeal was heard on the appellant’s brief alone.
In paragraphs 6.01 and 6.02 of the appellant’s brief, learned counsel for the appellant stated as follows:
6.01 My lords, it Is our humble submission that the lower Court was wrong to have held that the sentence of seven years imprisonment passed on the appellant after his conviction will start to run from the completion of whatever sentence the appellant may be presently serving. In the course of the trial at the lower Court there was evidence before the Court that the appellant had been tried, convicted and sentenced to ten (10) years imprisonment for the offence of operating a bank without license at the Federal High Court. See page 306 of the record from lines 22 to 24.
6.02 During allocution after the conviction of the appellant, counsel to the appellant also informed the trial Court that the appellant is already serving a term of imprisonment. The previous sentence for operating bank without license and the charges leading to the present appeal all emanated from the same transaction. The present charges relate to theft of the money deposited with the third accused person in respect of the deposit received from PW1, PW2 and PW3. Both the trials at the Federal High Court and the present case all emanated from the same transaction.

The statement of learned counsel, that Both the trials at the Federal High Court and the present case all emanated from the same transaction, is not borne out of the record of appeal. It is only record that PW1 – Mr. Johnson Malemi, the complainant in this case, stated under cross-examination on page 306 of the record that: I know 1st & 2nd Accused were convicted and sentenced for carrying out banking business without a valid license, by the Federal High Court. There is, however,

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nothing on record that the trial and conviction of the appellant, by the Federal High Court, for operating banking business without a valid banking licence, was in respect of the specific transactions spanning a period of about the 7th day of March, 2008 to about the 20th day of November, 2009 involving alleged fraud and theft by the appellant with which the appellant was charged in this case.
I am of the view that there is nothing wrong with the decision by the trial Court that the 7 years sentence imposed on the appellant shall start running at the expiration of the ten-year term he is serving, by virtue of the judgment of the Federal High Court, Asaba Judicial Division, delivered on 07/01/2013. The directive by the trial Court as to the commencement of the appellant’s sentence after his previous conviction, of which sentence is being served, is even supported by the provisions of Section 380 of the Criminal Procedure of Law of Delta State and Section 418 of the Administration of Criminal Justice Act, as domesticated in Delta State by the Delta State Administration of Criminal Justice Law, 2016.
It is for these reasons and for the more comprehensive and elaborate reasons given by my learned brother, Philomena Mbua Ekpe, JCA, that I also dismiss this appeal and affirm the judgment of the trial Court.
Appearances

Ayo Asala Esq.-For Appellant

AND

U.A.E Akporherhe (Miss) with him, O.O. Orhurhu Esq.-For Respondent.

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