IN THE COURT OF APPEAL OF NIGERIA
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS
ON WEDNESDAY, THE 8TH DAY OF JUNE, 2022
BEFORE THEIR LORDSHIPS:
MONICA BOLNA’AN DONGBAN-MENSEM JUSTICE, COURT OF APPEAL
JIMI OLUKAYODE BADA JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
APPEAL NO: CA/LAG/CR/496/2021
BETWEEN:
OKEY NWOSU ……………………………………… APPELLANT
AND
FEDERAL REPUBLIC OF NIGERIA …………….. RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
By an Information dated 29th March, 2011, the Appellant, Okey Nwosu, a former Managing Director and Chief Executive Officer of FinBank Plc, was charged along with three others, namely Mr. Dayo Famoroti, Mr. Danjuma Ocholi and Mrs. Agnes Ebubedike, who were former Executive Directors of FinBank Plc, on a 26-Count Charge of stealing the total sum of Twenty Billion, Thirty four Million, Seven Hundred and Eight Thousand, Four Hundred and Thirty Six Naira Ninety Seven Kobo (N20,034,708,436.97) belonging to FinBank Plc, between August, 2006 and November, 2007, contrary to section 390 (7) of the Criminal Code Law, CAP C17, Laws of Lagos State, 2003. See pages 1 – 14, Volume 1 of the Record of Appeal. Upon their arraignment before the High Court of Lagos State (the lower court) on 10th May, 2011, the 3rd and 4th Defendants entered a plea of not guilty to all the 26-count charge contained in the Information preferred against them for and on behalf of the Attorney General of the Federation and the Chairman, Economic and Financial Crimes Commission. The Appellant and the 2nd Defendant had a plea of not guilty entered for them by the court when they failed to take their plea on account of the pendency of their Notices of Preliminary Objection to the Information. At the trial, the Prosecution called a total of nine (9) witnesses and tendered bundle of documents marked as exhibits P1 -P165. The Appellant called nineteen (19) witnesses including himself while the 2nd, 3rd and 4th Defendants testified for themselves without calling additional witness. The Defendants tendered Exhibits D1 – D53.
After the close of the case for both the Prosecution and the Defence, the Prosecution re-arraigned the Defendants on an Amended 9-Count Information for the offence of stealing by conversion, which included a count of conspiracy, dated 7th October, 2019. This necessitated the reopening of the case and the recall of some witnesses for further examination, cross examination and re-examination. The 9-Count Amended Information, filed as Charge No. 1D/115C/2011, signed by Rotimi Iseoluwa Oyedepo Esq. of Legal and Prosecuting Unit of EFCC dated 7th October, 2019, is as follows:
“STATEMENT OF OFFENCE – COUNT 1
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 8th August, 2006 and 14th November, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N18, 188, 083, 059.35 (Eighteen Billion, One Hundred and Eighty-Eight Million, Eighty Three Thousand, Fifty-Nine Naira and Thirty-Five Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited, Eureka Global Ventures Limited, Busch Modern Machine Tools Limited, Ferbond Real Estate Limited, Scannell Investment Limited, Tyco Food Processors Limited, Omden Oil and Gas Nigeria Limited and Coast Lake Nigeria Limited to buy 2, 033, 168, 880 units of FinBank shares.
STATEMENT OF OFFENCE – COUNT 2
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 8th August, 2006 and 31st October, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N5, 717, 370, 554.67 (Five Billion, Seven Hundred and Seventeen Million, Three Hundred and Seventy Thousand, Five Hundred and Fifty Four Naira and Sixty Seven Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Eureka Global Ventures Limited.
STATEMENT OF OFFENCE – COUNT 3
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 8th August and 17th October, 2006 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N132, 211, 571.63 (One Hundred and Thirty Two Million, Two Hundred and Eleven Thousand, Five Hundred and Seventy One Naira, Sixty Three Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Busch Modern Machine Tools Limited.
STATEMENT OF OFFENCE – COUNT 4
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 27th September, 2006 and 23rd May, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N1, 341, 139, 295.45 (One Billion, Three Hundred and Forty One Million, One Hundred and Thirty Nine Thousand, Two Hundred and Ninety Five Naira and Forty Five Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Ferbond Real Estate Limited.
STATEMENT OF OFFENCE – COUNT 5
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 13th September and 2nd November, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N1, 690, 499, 366.06 (One Billion, Six Hundred and Ninety Million, Four Hundred and Ninety Nine Thousand, Three Hundred and Sixty Six Naira and Six Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Scannell Investment Limited.
STATEMENT OF OFFENCE – COUNT 6
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 8th August, 2006 and 21st March, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N457, 121, 098.99 (Four Hundred and Fifty Seven Million, One Hundred and Twenty One Thousand, Ninety Eight Naira and Ninety Nine Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Tyco Food Processors Limited.
STATEMENT OF OFFENCE – COUNT 7
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 8th August, 2006 and 4th May, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N1, 004, 066, 657.28 (One Billion, Four Million, Sixty Six Thousand, Six Hundred and Fifty Seven Naira and Twenty Eight Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Omden Oil and Gas Nigeria Limited.
STATEMENT OF OFFENCE – COUNT 8
Stealing contrary to Section 390(7) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. between 19th July and 14th November, 2007 within the jurisdiction of this Honourable Court fraudulently converted an aggregate sum of N7, 845, 674, 515.27 (Seven Billion, Eight Hundred and Forty Five Million, Six Hundred and Seventy Four Thousand, Five Hundred and Fifteen Naira and Twenty Seven Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited and Coast Lake Nigeria Limited.
STATEMENT OF OFFENCE – COUNT 9
Conspiracy to commit felony contrary to Section 156A (1) of the Criminal Code Law, CAP C17, Laws of Lagos State 2003.
PARTICULARS OF OFFENCE
OKEY NWOSU, while being the Managing Director and Chief Executive Officer of FinBank Plc, DAYO FAMOROTI, DANJUMA OCHOLI and AGNES EBUBEDIKE, while being Executive Directors of FinBank Plc. and AKAN OKON (Now at large) between 8th August, 2006 and 14th November, 2007 within the jurisdiction of this Honourable Court conspired to fraudulently convert an aggregate sum of N18, 188, 083, 059.35 (Eighteen Billion, One Hundred and Eighty-Eight Million, Eighty Three Thousand, Fifty-Nine Naira and Thirty-Five Kobo) property of FinBank Plc. to the use of Springboard Trust & Investment Limited, Eureka Global Ventures Limited, Busch Modern Machine Tools Limited, Ferbond Real Estate Limited, Scannell Investment Limited, Tyco Food Processors Limited, Omden Oil and Gas Nigeria Limited and Coast Lake Nigeria Limited to buy 2, 033, 168, 880 units of FinBank shares.”
At the end of the case for both parties, the lower court, presided over by Lateefa Abisola Okunnu, J., delivered a considered judgment on 5th January, 2021 wherein it found each of the Defendants guilty of all the offences in the 9-count amended charge and convicted them accordingly. See pages 4795 – 4911, Volume 10 of the Record of Appeal. In a sentence passed the same date, domiciled at pages 16 - 19 of the Additional Record of Appeal, the Appellant and the 2nd Defendant were each sentenced to three years imprisonment on all the 9-counts, but the sentences were to run concurrently. The lower court also made an order of restitution against the Appellant and the 2nd Defendant to repay the money that was stolen by them from FinBank Plc in the sum of Eighteen Billion, One Hundred and Eighty-Eight Million, Eighty-Three Thousand, Fifty-Nine Naira, Thirty-Five Kobo (N18,188,083,059.35K) to the relevant Federal Government Agency.
Being aggrieved, the Appellant questions the correctness of his conviction, sentence and the order of restitution made against him by filing a Notice of Appeal predicated on twenty-three (23) grounds of appeal on 16th March, 2021. The reliefs sought by the Appellant is for an order allowing the appeal and setting aside the judgment of the lower court, an order setting aside the conviction of the Appellant and discharging and acquitting him, an order setting aside the sentence and the order of restitution made against him. The Notice of appeal occupied pages 5026 – 5051, Volume 10 of the Record of Appeal.
There are two divergent views of the facts of the case leading to this appeal as narrated by the Appellant on one hand and the Respondent on the other. According to the Appellant, the facts that gave rise to the charge against him and the three other Defendants emanated from the share transaction undertaken by FinBank between 2006 and 2008 in line with its Universal Banking License which allowed it to engage in capital market activities, oil and gas transactions, investments and insurance among others, with a view to making profits. Following the boom in the capital market between 2006 and 2008, FinBank engaged in the trading of shares through seven companies incorporated by it as Special Purpose Vehicles. Thew share transactions was managed by one Akan Okon of the Bank’s Investment Banking Unit while Spring Board Trust and Investment Limited and Integrated Trust Limited, among others, were engaged as Stockbrokers who purchased shares from time to time in the name of the companies used as Special Purpose Vehicles, on the instruction of the Bank. The decision of the Board of FinBank to venture into share purchase transaction was executed by the Executive Management Committee comprising the Appellant and the other Defendants at the lower court and one Nuhu Abubakar, who was not charged. According to the Appellant:
“By the nature of the transaction, the Investment Banking Department instructs the stockbroker to purchase shares on behalf of the bank in the name of the 7 companies incorporated by the Bank and used as Special Purpose Vehicles (SPVs). Accordingly, the stockbroker buys the shares with the contract notes forwarded to the bank for reimbursement of the purchase price for shares purchased on behalf of the bank with the bank’s interest noted on the contract note. After ascertaining that the shares acquired by the stockbroker are in the bank’s possession, the Investment Banking Head forwards the ticket for payment for those shares to the management for approval. The management comprising the Appellant and the other Defendants and Nuhu Abubakar (not charged), relying on the process and procedures of the Bank, then on behalf of the bank, sign the memo authorizing payment to the Stockbroker. The Bank sold the shares bought in the names of the seven SPVs, and the sales proceed remitted to the Bank with the balance of unsold shares remaining in the bank’s control and treated as assets of the Bank. Finbank owns the seven SPV companies the subject of this charge and based on whose transactions the charge against the Appellant for alleged converting and stealing of the funds of Finbank was filed. The Bank incorporated the companies through the Company Secretariat Department, and the documents of incorporation of these companies are with the Bank.”
As narrated by the Respondent, the background facts of the case leading to this appeal are that:
“This appeal relates to the fraud committed by the Executive Management of Finbank Plc in deploying over the N18 Billion, funds of the bank for the purchase of over Two Billion shares out of the Four Billion shares of the bank in the names of seven pseudo companies.
The Appellant, who was the 1st Defendant in the lower court, was the Managing Director and Chief Executive of Finbank Plc whilst the 2nd – 4th Defendants were Executive Directors and members of the Executive Management of FinBank Plc. The Executive Management, comprising the Appellant, decided to utilise the funds belonging to customers of the bank to purchase the shares of the bank in the names of seven (7) pseudo companies falsely held out as the customers and clients of the bank who, upon application were granted credit facilities to buy shares of the bank. One Akan Okon, who was the Head of Investment Banking of Finbank Plc was instructed by the Appellant and the other Defendants to liaise with one Danjuma Ocholi (the 3rd Defendant) who was the Executive Director, in charge of Investment Banking at the time and to appoint a brokerage firm known as Springboard Investment Limited as a broker for the purpose of buying the bank’s shares in the names of the said seven (7) Pseudo companies. By Exhibits P39 and P39A, Springboard Trust and Investment Limited was appointed by the bank on behalf of the alleged customers of the bank to buy the shares of FinBank Plc. at the secondary market. The broker, between 2006 and 2007, on several occasions then bought over 2 billion units of FinBank Plc.’s shares and forwarded several contracts notes to the management of FinBank Plc. requesting for the refund of the purchases made on behalf of the said seven Pseudo companies who were said to be customers of the bank. The contract notes were approved by the appellant and his Co-Defendants who were members of the Executive Management and payments were made from the funds of FinBank Plc. to Springboard Trust and Investment Limited as reflected in Exhibit P2. There was no application by the seven companies for the loans allegedly given to them by the Defendants and the companies do not even have any account with the bank. The seven companies were used by the appellant and the other Defendants to siphon money out of FinBank Plc. as the Central Bank was not aware of the loan allegedly given to the seven companies and the purchase of the shares until the Central Bank of Nigeria took over the management of the bank after the collapse of capital market in 2009.
The entire share purchase transactions were treated in secrecy and confidentiality. The relevant department and officers of the bank knew nothing about the transaction No prior approval was obtained from the CBN for the transactions. Also, the Board of Directors of the bank never approved the transaction as there was no board resolution to grant credit facilities well in excess of N18 Billion to the seven companies or even to Springboard Trust and Investment Limited. The Appellant and the other Defendants also benefitted personally from the shares purchase by crossing some of the shares into their personal names and the companies in which they have interest.”
In compliance with the Rules of this court, parties filed and exchanged written Briefs of Argument as follows:
When the appeal came up for hearing on 23/03/2022, Chief Anthony Idigbe, SAN, adopted the Appellant’s Brief of Argument, the Reply Brief and adumbrated orally on some salient aspects of his argument in the Briefs. He urged the court to allow the appeal. Mr. Rotimi Jacobs, SAN, on the other hand, adopted the Respondent’s Brief of Argument and urged the court to dismiss the appeal after a brief oral argument in adumbration.
In the Appellant’s Brief of Argument, three issues were distilled for the determination of the appeal, as follows:
“1. Whether in the circumstance of this case, the trial proceedings and judgment of the trial court constitute a breach of the constitutionally guaranteed right of fair hearing of the Appellant. Grounds 1, 11, 5.
2. Whether the Respondent, on the evidence before the trial court, discharged the legal burden of establishing the guilt of the Appellant beyond reasonable doubt and the conviction of the Appellant on all counts of the Amended Charge, sustainable. Grounds 2, 3, 4, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 20, 21, 22, 19, 23.
3. Whether the learned trial court was wrong to have made an order for the restitution of 18 billion (sic) against the Appellant. Grounds 12, 13, 14.”
Like the Appellant, the Respondent also submitted three issues for the determination of this court, couched thus:
“1. Whether there was a breach of the Appellant’s right to fair hearing by the proceedings adopted by the lower court. (See Grounds 1, 5 and 11).
2. Whether the learned trial Judge was wrong in convicting the Appellant for the offences of stealing and conspiracy to steal as charged in the Amended Information. See Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 18, 20, 21, 22, 19, 23).
3. Whether the lower court was wrong in making order of restitution of the sum of B18 Billion against the Appellant and the 2nd Defendant. See Grounds 12, 13, 14.”
The issues crafted by both the Appellant and the Respondent are not dissimilar in substance and purport. As a matter of fact, the three issues formulated by the Appellant are the same with the issues forwarded by the Respondent, though semantically worded differently. Since the Appellant is the proponent and indeed the owner of the appeal, and in view of the similarity of the issues submitted by both parties, I have chosen to adopt the issues formulated by the Appellant in the determination of this appeal.
Argument on the Issues
Issue 1
Learned senior counsel for the Appellant, Chief Anthony Idigbe, SAN, submitted in the Appellant’s Brief of Argument that the proceedings leading to the conviction of the Appellant was conducted in breach of the constitutionally guaranteed right to fair hearing of the Appellant as the Appellant was not afforded equal opportunity with the Respondent in the defence of the charge against him, nor was he confronted with all the material facts relied upon by the lower court to convict him. He argued that the lower court failed to act as an impartial arbiter by making a case for the Respondent different from the one made out by the evidence. The particulars constituting the alleged denial of fair hearing to the Appellant were itemized in the Appellant’s Brief as follows:
The court was urged to resolve Issue 1 in favour of the Appellant.
In his argument on Issue 1, learned senior counsel for the Respondent, Rotimi Jacobs, SAN, stated that contrary to the submission in paragraph 3.02 of the Appellant’s Brief, exhibit D39 was not tendered through DW11 (David Idenu) but through DW10 (Elonna Ezulu). He referred to the evidence of the witness at pages 2715 – 2796, Volume 6 and pages 3121 – 3228, Volume 7 of the Record. He argued that by its ruling admitting exhibit D39, the trial court meant that the document was admissible but the weight to be attached to it is entirely another matter, depending on its cogency and credibility as decided in Ayeni vs. Dada (1978) NSCC 147 @ 160. He drew the court’s attention to the fact that exhibit D39 was admitted as a certified true document, the original of which was not in the custody of the High Court of Lagos State, the body that purportedly certified same, but that it was admitted only to prove the version that was in court, not the truth of its content. It was the contention of learned senior counsel for the Respondent that DW10 who tendered exhibit D39 was never asked any question by the Appellant pertaining the said exhibit that was disallowed by the lower court. Reference was again made to the evidence of DW10 at pages 2615 and 2632 of the Record to show that the lower court did not interfere or limit the Appellant in anyway in the examination of his witness. On the reference by the Appellant to page 2645 of the Record where the lower court drew the attention of counsel to the 2nd Defendant to the ruling of the court on the admission of exhibit D39, in the course of cross examination of DW10, senior counsel submitted that the proceedings on that page cannot be attributed to the lower court stopping the Appellant’s counsel from examining his witness, in that after the reminder, learned counsel for the 2nd Defendant was asked by the court to go on with his cross examination, which he did extensively. In the same vein, DW11 (David Idenu) and DW17 (Opeyemi Adegboyega) were comprehensively examined by the Appellant on exhibit D39 without any interference by the trial court (pages 2715 – 2765 and 3648 – 3654 respectively of the Record), just as they were thoroughly cross examined by the other Defendants on exhibit D39 at pages 3124 – 3130 and 2786 – 2796 of the Record, the same opportunity that was given to the Respondent. Learned senior counsel argued that the Appellant, having led DW10, DW11 and DW17 to give evidence on the content of exhibit D39, it is not correct for him to contend that he was prevented from examining his witnesses on the said exhibit D39. The Respondent contended that in view of the extensive examination of DW10, DW11 and DW17 by the Appellant on exhibit D39 and the cross examination of the same witnesses by the other Defendants and the Respondent, coupled with the heavy reliance placed on exhibit D39 by the Appellant, it would amount to abdication of duty for the lower court not to evaluate and ascribe weight to the said exhibit D39. Citing the case of Ayeni vs. Dada (supra), counsel submitted that since parties have joined issues on the content of exhibit D39 on whether the seven companies were owned by FinBank, the lower court did not do anything unusual when, in its judgment, it evaluated the exhibit and ascribed probative value to it. This court was also referred to the final addresses of the parties before the lower court, particularly that of the Appellant where at paragraph 74, pages 2821- 2822, paragraph 76, pages 2622, paragraph 78, page 2823 and paragraph 82, page 2824 of the Record of Appeal, the Appellant referred to the testimonies of DW10, DW11 and DW17 to the effect that exhibit D39 is an authentic document prepared by the Legal Department of the Bank and presented to the Management to prove that it was the Bank that incorporated the companies, vis-a vis the answers elicited from these witness under cross examination, which makes it mandatory for the lower court to resolve the issue by evaluating the evidence and making a finding. Learned senior counsel argued that the Appellant who tendered exhibit D39 is estopped on appeal to object or complain about the trial court’s consideration of the document in reaching its decision, placing reliance on Igwe vs. A.I.C.E. (1994) 8 NWLR (Pt.363) 459 @ 476; Tijani vs. Akinwunmi (1990) 1 NWLR (Pt.125) 237 @ 249; Ezeokeke vs. Uga (1962) NSCC 306 @ 307.
It was further submitted that the argument of the Appellant that exhibit D39 was tendered only for the purpose of proving the incorporation of the seven companies in order to mop up the shares of FinBank Plc is a misconception because having been tendered and admitted in evidence, exhibit D39 can be used for all legitimate purposes by the trial court, relying on Ishola-William vs. Hammond Project Limited (1988) 1 NWLR (Pt.71) 481 @ 498. Learned Senior Advocate submitted that the Appellant was given ample opportunity to examine his witnesses without hindrance and that once it is not shown on record that the Appellant was denied the right to examine his witnesses, it cannot be said that he was denied fair hearing. On this submission, reference was made to the case of Jabi vs. State (2018) LPELR-44407 (CA); Amadi vs. Nwosu (1992) 5 NWLR (Pt.241) 273 @ 284; Ayoade vs. The State (2018) LPELR-44517 (CA). He contended that the case of Wagbatsoma vs FRN (supra) is not applicable in the instant case reason being that in that case, it was the lower court that raised suo motu the constitutionality of section 19 of the Admiralty Jurisdiction Act and decided it without calling on counsel to address it on the point. In the instant case, however, no issue was raised suo motu by the lower court without hearing parties, rather, it was the Appellant who raised the issue of the validity of exhibit D39 and placed reliance on it to claim that the mentioned companies in the document belonged to FinBank Plc, which the lower court found otherwise. Learned senior counsel submitted that the decision of the lower court was not solely based on exhibit D39 or the fact that some shares were transferred to Ladder Will Nigeria Ltd, a company owned by the Appellant, rather it was based on the finding of the lower court that the seven companies were not incorporated by FinBank as well as other damaging evidence which points to the fact that the Appellant, along with others, fraudulently converted over N18 Billion, property of the Bank through the seven shell companies. He argued that even if exhibit D39 was wrongly relied upon, which he did not concede, it did not affect the decision of the lower court, citing section 251 (1) of the Evidence Act and the cases of Ajayi vs. Fisher (1956) 1 NSCC 82; Egbaran vs. Akpotor (1997) 7 NWLR (Pt.514) 559. The court was urged to resolve Issue 1 in favour of the Respondent.
Issue 2
The Appellant is of the strong opinion that his guilt has not been established by the Respondent beyond reasonable doubt as required by law and that his conviction was based on grossly speculative and inchoate evidence led at the trial.
First and foremost, the Appellant challenged the competence of the Amended Charge before the lower court on ground of duplicity and multiplicity but the lower court in its judgment at pages 4895 – 4896 of the Record, relying on section 148 of the administration of Criminal Justice Law of Lagos State, refused to strike out the charge. Learned senior counsel for the Appellant argued that count 1 contained the summary of the entire charge while the same set of facts were then duplicated as independent counts in counts 2 – 8, as can be found at pages 1432 Volume 3 of the Record of Appeal. He submitted that the elementary rule of our criminal jurisprudence is that a charge is bad for duplicity and multiplicity when the same set of facts are replicated for similar offences in more than one count of an indictment, citing Domingo vs. R. (1963) 1 ALL NLR 81; R. vs. Aniemeke (1961) 1 ALL NLR 43; Abudu Abu vs. C.O.P. (1981) 6 C.A. (Pt.1). This court was urged to hold that the charge goes contrary to the tenets of the law as the counts of misappropriation or conversion of funds contained in counts 2 – 8 are a duplication of count 1. We were also urged to set aside the conviction of the Appellant and strike out the charge for being incompetent, as the conviction of the Appellant on counts 2 – 8 after he was convicted on count 1 amounts to double jeopardy or punishing him for the same offence twice or more, placing reliance on Igbinedion vs. FRN (2014) LPELR-22766 (CA).
Secondly, learned senior counsel submitted that even though the charge accused the Appellant of stealing money belonging to FinBank to benefit Springboard Trust & Investment Limited and the seven companies, the evidence shows that the money was not stolen but used to purchase shares on the instruction of the Bank, portions of which were sold and the proceeds remitted to the Bank. He contended that no evidence was led to substantiate the allegation that the Appellant stole a particular amount of money as required by the decision of this court in Onagoruwa vs. State (1993) LPELR-43436 (CA), whose facts are on all fours with the facts of this case and which authority the lower court refused to follow without any attempt at distinguishing it. He noted that even the tickets and approvals signed by the Appellant and admitted as exhibits P3 – P8 and which were relied upon by the Respondent, contained a total amount different from the amount in the Information upon which the Appellant was convicted, as the cumulative amount in those exhibits is N14,103,73,851.37, and no attempt was made by the Prosecution to explain the difference between the amount stated in the charge and the cumulative amount in exhibits P3 – P8. This court was urged to hold that the decision in Sagoe vs. Queen relied upon by the lower court is inapplicable to the instant case in that no specific amount, even less than the amount in the charge, was mentioned by any of the witnesses called by the Prosecution, as a result, the court cannot act on speculative evidence based on unascertained amount. Reliance was placed on Garko vs. State (2007) ALL FWLR (Pt.363)116 @ 129.
Thirdly, it was argued for the Appellant that no scintilla of evidence was led by the Respondent on exhibit D26 (pages 2008 – 2014 of the Record), tendered by it through DW8, which forms the basis of the 9-Count Amended Information upon which the Appellant was tried and convicted, other than a few questions put to DW8 under cross examination. Learned senior counsel submitted that on the authority of Ucha vs. Elechi (2012) 13 NWLR (Pt.1317) 330 @ 360, exhibit D26 is a worthless document as same was just dumped on the court without any witness called by the Prosecution to testify on its content with a view to establishing the offences of stealing and conspiracy to steal. With reference to the finding of the lower court that the transfer of 503,125,000 units of shares to the Directors and other companies constitutes an offence of stealing, the Appellant’s counsel submitted that the said finding is unfounded and amounts to speculative adventure as there was no allegation on the Amended Information that the Appellant stole 503, 125,000 units of shares or any shares whatsoever belonging to FinBank Plc.
Learned senior counsel also faulted the finding of the lower court that the money stolen belonged to FinBank. His attack was predicated on the evidence on record that no money belonging to FinBank was stolen by the Appellant as all the monies paid to Springboard were reimbursements for shares purchased on the instruction of the Bank for companies belonging to and incorporated by the Bank. He referred particularly to the evidence of PW3, the Financial Controller of FinBank, who testified under cross examination at page 1697, Volume 4 of the Record, that the Appellant and the other Defendants neither benefited from the transaction in shares nor stole the Bank’s money as the entire transaction was consummated by the Bank. It was submitted for the Appellant that there cannot be more exculpatory evidence in a criminal trial than the evidence of the alleged victim denying being a victim of any wrongdoing as contained in the charge. Reference was also made to the testimonies of DW17, who became a Director of the Bank after the exit of the Appellant and PW5 from NDIC, who all testified that no money belonging to FinBank was found missing or stolen. On the basis of the evidences of these witnesses, counsel submitted, the Prosecution’s case ought to have collapsed in its entirety. It was further argued that the finding of the lower court that the shares were used in a manner inimical to the Bank’s interest and transferred to people without payment directly, contradicts the finding of the court at page 4829, Volume 10 of the Record, that the shares purchased were intact and in possession of the Bank.
Learned senior counsel for the Appellant contended that intention by the Appellant to steal the money of the Bank or defraud the Bank in anyway has not been proved by the Prosecution. He argued that the risk taken by the Appellant and other Directors of the Bank to trade in shares for profit was a business judgment and should not be punished criminally, no matter how stupid the decision may turn out to be, as the Business Judgment Rule grants Directors, Officers and Agents of a company immunity from law suits relating to corporate transactions if it is found that they acted in good faith. Cited in support of this submission is the Supreme Court of Delaware case of Grobow vs. Perot 539 a 2d 180 (1988).
On the Ownership of the seven companies constituting the charge, learned senior counsel argued that the evidence of PW3, PW6, DW10 DW11 as well as exhibit D39 points conclusively to the ownership of the seven companies by FinBank Plc, yet the lower court rejected these pieces of evidence and held that the companies do not have any relationship with the Bank. He submitted that the position of the lower court in relying on the evidence of the 3rd Defendant, a co-accused, that one of the Legacy Banks that merged to form FinBank , NUB, did not own an SPV nor transfer any to FinBank, is not only misguided and wrong but prejudicial, as the evidence of a co-accused cannot be used against another co-accused until he adopts same as his., relying on Benjamin Oyakhire vs. State (2006) LPELR-2863 (SC).
The Appellant also accused the lower court of failure to resolve inconsistencies and doubts in the Prosecution’s case in his favour, as required by our criminal jurisprudence, by citing the following two instances:
The Appellant also attacked the judgment of the lower court on the ground that it considers extraneous matters in coming to its decision, such as issues relating to Investments and Securities Act, 2007, in concluding that funds of the Bank were converted with fraudulent intent, improper reporting of the transaction to the Central Bank of Nigeria, approval of Special Purpose Vehicles by the Central Bank and the confidentiality of the shares transaction within the Bank, among others, leaving the real criminal law issues before the court. Counsel submitted that even if share trading business is not the legitimate business of the Bank because the Central Bank of Nigeria did not approve the use of the seven companies as SPV’s, that in itself will not ground a conviction for the offence of stealing.
On the absence of Board approval for the share transaction, which the lower court held to amount to fraudulent intention to steal from the Bank, the Appellant reasoned that the nature of the transaction, with its attendant price fluctuation, is such that urgent business decision as to whether to hold or dump the shares has to be taken by the Management without recourse to the cumbersome and time-consuming procedure of summoning Board meeting. He maintained that there is evidence on record to the effect that the Board approval was in place for the transactions in issue. He argued that the evidence of the Investigating Officers, PW5 & PW6 to the effect that the Board did not approve the transaction carried out by the Bank, which evidence the lower court believed, is a conjecture, speculative and hearsay and therefore cannot ground a conviction in a criminal trial, especially that the Investigating Officers are not members of the Board.
Chief Idigbe, SAN, contended that the invocation of the presumption of withholding evidence under section 167 (d) of the Evidence Act against the Appellant for his failure to produce minutes of Board meeting is a breach of the sacred presumption of innocence of the Appellant, as it is the duty of the Respondent to establish that there was no Board approval for the transaction undertaken by the Bank. This court was also urged to hold that the Ruling of the lower court refusing to admit the Originating Summons before the Investment and Securities Tribunal is wrong in law in that the document is relevant to the case at the lower court. He also faulted the reliance by the lower court on the statements credited to Dr. Theo Osanakpo, SAN, Akan Okon and the Central Bank of Nigeria in convicting the Appellant, without any one of them being called to testify before the court.
On the charge of conspiracy, learned silk submitted that no scintilla of evidence was led to prove agreement between the Appellant and the other Defendants to do an unlawful act, as their act of signing exhibits P3 – P8 relied upon by the lower court to infer conspiracy, was done in furtherance of their duties as Directors of the Bank without more. The court was urged to resolve Issue 2 in favour of the Appellant as the Respondent has failed to discharge the legal burden placed on it to establish the guilt of the Appellant beyond reasonable doubt.
On his part, learned senior counsel for the Respondent commenced his address on Issue 2 by itemizing 32 salient findings of the lower court which culminated in the conviction of the Appellant for the offences charged. The findings are at pages 8 – 12 of the Respondent’s Brief. He maintained that the Appellant has not shown that the findings are erroneous or that they are not supported by evidence adduced. On the ingredients of the offence of stealing which the Appellant argued that the Prosecution was unable to prove, learned silk for the Respondent disagreed with the Appellant and exhaustively analyzed the ingredients under 4 sub-heads at paragraphs 4.05 to 4.37, pages 12 - 23 of the Respondent’s Brief of Argument which, according to him, were proved against the Appellant beyond reasonable doubt. The ingredients are:
Ingredient No. 1 – Lack of Board approval and alleged failure to establish what was stolen.
Ingredient No. 2 – Ownership of the thing stolen.
Ingredient No. 3 - Intention to permanently deprive FinBank Plc of its money.
Ingredient No. 4 – Was the money converted with fraudulent intent.
It was argued that what was stolen and converted was money belonging to FinBank Plc as found by the lower court in its judgment at page 4811, Volume 10 of the Record. That the entire money transferred from the account of FinBank Plc and credited to the account of Springboard Trust & Investment Limited as shown in exhibits P1A, P1B and P2 between 8th August, 2006 and 14th November, 2007, is N18,188,083,059.35. That was the amount in the charge as also confirmed by exhibit D26, a letter written by the Managing Director and Chief Executive of Springboard to First Inland Bank dated 1st January, 2008. This fact was further confirmed by PW4 and DW8 (General Manager and Managing Director respectively of Springboard Investment Ltd) who confirmed exhibit D26 and also that Springboard Investment was credited a total of over N18 Billion which it used in buying over two billion units of FinBank shares for the seven companies who were said to be customers and clients of the Bank. He cited the evidence of PW3 & PW4 and the case of Adejobi vs State (2011) 12 NWLR (Pt.1261) 347 to buttress the fact that what was stolen was money and that the lower court was right in its finding in that regard. Counsel referred to pages 2448 – 2452 of the Record where DW8 was cross examined on exhibit D26 to show that the said exhibit was not dumped on the court as argued by the Appellant in his Brief. Learned senior counsel contended that the evidence of DW8, called by the Appellant, strengthened the Respondent’s case when damaging evidence was elicited from him by the Prosecution under cross examination over exhibit D26, and the Appellant who called him cannot be heard to complain, citing Komolafe vs. Guardian Press Limited (2010) 3 NWLR (Pt.1181) 338 @ 351; Dagash vs. Bulama (2004) 14 NWLR (Pt.892) 114 @ 241; Danladi vs. State (2017) LPELR-43627 (CA) @ 56-57.
On ingredient No. 2, ownership of the thing stolen, learned senior counsel referred to the finding of the lower court in its judgment at page 4812 of the Record thus: “the evidence is clear and bereft of any doubt or dispute that the money in issue were owned by FinBank Plc. In fact, the Defendants all agreed that this is so.” He argued that the Appellant, rather than challenge this finding, went on a wide-ranging argument that no money was stolen. While conceding that ownership of the property stolen must be proved as an essential ingredient of the offence of stealing as decided by the Supreme Court in the case of Adejobi vs State (supra), counsel argued that there was ample evidence before the lower court which proved beyond any doubt that the money belonged to FinBank Plc. In this regard, the court was referred to the evidence of PW3 to the effect that the money transferred to Springboard was from the General Ledger Account belonging to FinBank as well as the evidence of PW7 who identified exhibit P2 as the Internal or Suspense account from where the money was transferred to Springboard.
On ingredient No. 3, i.e., whether there was intention to permanently deprive FinBank of its money, learned counsel submitted that through exhibit P2 and exhibits P1A & P1B there is evidence of physical movement of the sum of N18,188,083,059.35 from FinBank Plc to Spring Board Investment Ltd for the purchase of shares for the benefit of the seven companies, which are distinct legal entities from the Bank, on the instruction and authorization of the Appellant and the other Defendants. According to the Respondent, the finding of the lower court at page 4817 of the Record that the sum of N18,188,083,059.35 was indeed converted by the Appellant and the other Defendants to the use of others when it was translated into 2,033,168,880 units of shares that were bought by Springboard for the seven companies, cannot be faulted, as same was not challenged by the Appellant. It was submitted that the above findings by the lower court are supported by the evidence on record which learned senior counsel itemized at pages 18 – 20 of the Respondent’s Brief.
On the Appellant’s reliance on the evidence of PW3 that the Bank bought the shares using Special Purpose Vehicles that were owned by the Bank and that he was not aware that the Bank’s money was stolen, which evidence are exculpatory in nature, Mr. Jacobs SAN, argued that these pieces of evidence neither discredit the case of the Prosecution nor support the Appellant’s case, for the reasons that:
“1. PW3 stated clearly his limitation even in evidence in chief when he said at page 1646 Vol. 4 of the Record that “though by my reporting line, it was not really under my schedule of duty. I was not the one handling it directly, but I was aware there was a share trading going on in the bank.” So, the witness was not involved in the transaction even from his own evidence. He has stated his limitation and his limited knowledge of the whole transaction which he derived during investigation.
2. PW3 testified further at page 1646 of the Record that “Mr Akan Okon, he processes for approvals for it to be accepted for payment and that process of payment passes through my boss, the Chief Financial Officer…. Like I said earlier, it does not pass through me directly.” The witness was not aware of the transaction and the transaction did not pass through him.
3. He even said further at page 1647 of the Record that the account numbers were coded on the documents. According to him, “the account numbers are coded on the documents for further processing for payment.” From this, the account was coded so as to shield it away from other officers in his department
4. PW3 stated clearly whether it was usual to keep the documents relating to share purchase with Akan Okon. He stated at page 1647 of the record that “The transaction was actually a confidential transaction, so he keeps them in his custody because he originated them.” At page 1648, Lines 27 – 28 he said further “Like I said earlier, the transactions are treated as confidential items by the bank.”
5. PW3 also stated the way the transaction was captured, and the transfer done, the account of the transactions was not properly recorded in the book of the bank. He said, “so by way of capturing or transferring all those items, it was not properly recorded in the book of the bank.”
6. PW3 stated that it was only when EFCC was investigating the case that “we understood that it was the bank’s shares that was being traded.” He also stated that the CBN does not have any information about the SPVs and that it was only after the intervention that they were aware that the bank was buying its own shares and that the transaction was not being reported because it was kept confidential.
7. PW3 was specifically asked about the incorporation of the special purpose vehicle by the 3rd Defendant during cross examination and he said at page 1696 “Q: All these things you read from, and you took them from the bank, your immediate boss was the person dealing directly with the MD. A: yes. Q: she knew the circumstances for the incorporation of the companies A: I will not be able to say but I guess she should. Q: you heard a company secretary and legal adviser, and you still have A: yes Q: she instructed that these companies be incorporated? A: I think.
8. PW3 at page 1668 of the Record brought this evidence out when he said:“Q: As the man in charge of financial control, is it normal for the bank to buy its own shares? A: No, it is not. Q: Is the CBN aware of this Fin Securities? A: Yes, there are approvals to that Q: The Fin Security and Fin Capital? A: Yes, they are all subsidiaries approved Q: They were aware of those subsidiaries A: Yes, they are aware Q: These seven special vehicles you referred to, what was the position of the CBN to them as at that time? A: They are not registered with the CBN Q: So, the CBN was not aware A: Yes, they were not aware.”
It was the contention of the Respondent that having obtained evidence from PW3 under cross examination that he had no personal knowledge of the share purchase and documentation and could not attest to the veracity of the information he collected from the Bank, the Appellant cannot rely on the evidence of PW3 on how the shares were purchased and who purchased the shares.
On the evidence of PW5 heavily relied upon by the Appellant to show that both the CBN and NDIC have, in their joint reports, stated that they did not find any case of theft, learned senior counsel for the Respondent drew the court’s attention to the finding by the lower court at page 4876 of the Record to the effect that the case of stealing was only discovered after the CBN took over the management of FinBank Plc and during investigation carried out by law enforcement agencies, not during the earlier bank examination by bank regulators. The court was urged to hold that the finding of the lower court was not perverse as to warrant its being set aside.
On ingredient No. 4, it was posited that the money of the Bank was fraudulently converted for the benefit of seven entities that have no relationship with the Bank, which were turned into engine of fraud by the Appellant and the other Defendants. The Respondent placed reliance on the findings of the lower court as itemized by him at pages 10 – 15 and 21 – 22 of the Respondent’s Brief in aid of this submission.
On whether the Board of Directors of FinBank Plc gave approval for the use of N18.1 Billion Naira belonging to the Bank for the purchase of shares of the Bank, Respondent’s counsel noted the inconsistent stand of the Appellant on this issue in that before the lower court the Appellant contended that there was Board approval for the purchase of over two billion shares but before this court he summersaulted and argued that the Board approval was not necessary as the Board has delegated its powers to the management by virtue of the Bank’s Article, exhibit D17. He argued that articles 41 and 53 of exhibit D17 does not authorize the Bank to use huge sums of money to buy almost half of its own shares without the approval of the Board through other companies which were called clients and customers of the Bank, when the Bank had Fin Security and Fin Capital Nigeria Ltd approved by the CBN to deal in both primary and secondary capital market in line with articles 41 and 53. Evidence of PW3 at page 1666 of the Record referred to. It is the case of the Respondent that the approval of the Board of Directors of the Bank was not obtained before the huge amount was fraudulently converted to buy shares through the shell companies, and that no such approval was mentioned by the Appellant in his extra judicial statements tendered as exhibits P154 – P157, rather, he stated therein that they merely anticipated that the Board would subsequently give the go ahead. This court was urged to uphold the finding of the lower court at page 4872 of the Record that there was no Board approval for the share transaction embarked upon by the management committee of the Bank. Furthermore, in view of the oral evidence of the Appellant in court that there was Board approval, which evidence contradicted his extrajudicial statement in exhibits P154 – P157, the court was called upon to regard his evidence as unreliable, citing Popoola vs. State (2018) SC 10 NWLR (Pt.1628) 485 @ 499 & 500-501. Our attention was also drawn to exhibit P165, which contains the resolutions passed by the Board between 2006 – 2007 which contain no resolution whatsoever authorizing the Appellant and the other Defendants to utilize Bank funds to acquire FinBank’s shares.
On the submission made on behalf of the Appellant that the evidence of PW6 and PW9 (Investigating Officers) is hearsay, senior counsel for the Respondent submitted on the authorities of Olaoye vs. The State (2018) 8 NWLR (Pt.1621)281 @ 301; Osareren vs. FRN (2018) LPELR-SC 670/2014 and Kamila vs. State (2018) 8 NWLR (Pt.1621) 252 @ 271, that the evidence of PW6 & PW9, being Investigating Officers, relating to what they saw, heard or discovered during the course of their investigation cannot amount to hearsay.
On who lies the burden of proving the existence of Board approval for the transaction in shares, Respondent’s counsel stated that the position of the Prosecution is that there was no Board approval while the Appellant insisted in his oral testimony in court that there was Board approval, therefore the Appellant, having made a positive assertion of the existence of Board approval, has the burden of proving the approval. This position is hinged on the principle of law that proof lies upon him who affirms not upon him who denies, since by the very nature of things, he who denies the existence of a fact cannot produce any proof, as negative assertion is incapable of proof – Omisore vs Aregbesola (2015) 15 NWLR (Pt.1482) 205 @ 272-273; Elemo vs. Omolade (1968) NMLR 359 @ 361; Kate Enterprises vs. Daewoo (Nig.) Ltd (1985) 2 NWLR (Pt.5) 116; Sodiq vs. Fasheun (2016) LPELR-41473 @ 17-19.
On the ownership of the seven companies, learned silk for the Respondent drew attention to paragraphs 3.40 – 3.50 of his Brief where the evidence of the prosecution witnesses on the issue was highlighted and submitted that the evidence is clear that these seven companies were not presented to Springboard Investment Ltd, vide exhibit P39, as the companies incorporated and owned by the Bank, rather, they were presented as the customers and clients of the Bank. Reference was also made to documents registered with Corporate Affairs Commission in respect of the seven companies which were admitted as exhibits P153, P153A – P153Z and P153AA to show that the names of the subscribers and directors of those companies are not related to FinBank Plc and its officials. The entire registration documents of the companies have nothing to do with FinBank Plc. The fictitious addresses of the companies which were said to be in Lagos, Port Harcourt and Kano could not be traced by PW6, PW7, PW8 & PW9. The court’s attention was also drawn to the evidence of DW11, called by the Appellant, who testified that any Special Purpose Vehicle registered by a Bank and used for any business must have the Bank and its officials as directors and shareholders. To show that the seven companies do not belong to the bank, counsel submitted, the Appellant and the other Defendants after using the companies to acquire the shares, crossed over some of the shares to themselves and other directors as well as companies in which they have interest without any payment made, as per exhibit P145. Example of such dealings with the shares was the Two Hundred Million (200,000,000) units of shares offered as gift to Dr. Chief Osanakpo, SAN, the Chairman of the Board, which he rejected by instructing DW8 to sale the shares and return the funds to the Bank. With the level of impunity exhibited by the Appellant and his management committee, this court was urged to hold that the lower court was right in convicting the Appellant for stealing.
With respect to exhibit D39 which the Appellant said he tendered before the lower court for the purpose of establishing that the seven companies were incorporated by and belongs to FinBank Plc, it was contended for the Respondent that the said exhibit did not in any way prove that those companies were incorporated by the Bank as at the time they were allegedly utilized by FinBank Plc. He gave his reasons thus:
(a). Cross examination of DW11 shows that Eureka Global Ventures was not registered as the Legal Department does not have record of its registration.
(b). As at 7th August, 2008, four out of the seven companies given to Springboard Investment Ltd by Akan Okon on the instruction of the Appellant and the other Defendants, were not registered.
(c). Coast Lake Nigeria Ltd and Scannell Investment Ltd were incorporated in 2004 and 2005 respectively by one of the Legacy Banks when FinBank Plc was not in existence and they were not companies that were transferred to the newly formed FinBank Plc.
(d). FinBank and/or its officials were not shareholders or directors in any of the companies.
According to learned senior counsel for the Respondent, the above facts had removed the bottom out of exhibit D39 to the effect that it was FinBank Plc that incorporated the seven companies.
On the charge of conspiracy, the Respondent is of the strong view that the positive findings of the lower court cannot be faulted in that it was founded on credible evidence of the management committee meeting during or after which Akan Okon was instructed to appoint Springboard Investment Ltd for the purpose of using the Bank’s funds to buy shares in the names of the seven companies. The secret intention was made manifest by the writing of exhibits P39 and P39A by Akan Okon as well as the signing of exhibits P3 – P38.
On the Appellant’s objection to the competence of the charge on ground of duplicity and multiplicity, learned senior counsel devoted paragraphs 4.63 – 4.72 at pages 35 – 37 of the Respondent’s Brief to robustly submit that counts 2 – 8 of the Amended Information was not bad for duplicity and multiplicity, and that even where a charge is found to be so, it cannot be fatal to the conviction of the Appellant where no miscarriage of justice was occasioned, citing the case of Ubogu vs. State (2018) LPELR-46392 (CA). He argued that the offences charged in counts 1 and 2 – 8 contained different allegations, as the amounts contained in the various counts are not identical, hence the rule against duplicity has not been breached, and the court was prevailed upon to so hold.
Issue 3
Under Issue 3, the Appellant faulted the order of restitution made by the lower court against the Appellant and the 2nd Defendant for the refund of the sum of N18,188,083,059.35 to the relevant Federal Government Agency, on the following grounds:
The court was urged to resolve this issue in favour of the Appellant and set aside the order of restitution made against him.
On the whole, the Appellant urged the court to allow the appeal, set aside his conviction and the order of restitution made against him, and discharge and acquit him.
Proffering argument on Issue 3, Rotimi Jacobs, SAN, referred to, and summarized the reasons given by the lower court for making the order of restitution as captured at pages 16 – 19 of the Additional Record of Appeal. He submitted that the picture painted by the Appellant is that of arbitrariness on the part of the Judex in making the order of restitution, contrary to the reasons given in the judgment/sentencing as summarized at page 37 of the Respondent’s Brief of Argument. Learned senior counsel submitted that section 297 of the Administration of Criminal Justice Law of Lagos State, 2011, empowers the court to make an order of restitution. He referred to Nwude vs FRN (2016) 5 NWLR (Pt.1506) 271; Ogunlana vs. State (1995) 5 NWLR (Pt.395) 266 @ 289-291. It was contended that the order of restitution can be made to any person who is entitled to the property and such a person need not be a party to the criminal proceedings. That the order of restitution normally inures to the benefit of the victim of crime who is not usually a party to a criminal proceeding, and that in the absence of FinBank Plc, which is now defunct, AMCON stands as the representative of financial institutions when it comes to asset management, citing pages 91 – 94 of exhibit D29. On why the order of restitution was made against the Appellant and 2nd Defendant only, Respondent posited that the reason advanced by the lower court was that the 3rd and 4th Defendants were sidelined in the scheme of the fraud by the Appellant and the 2nd Defendant, evidence of which can be found in exhibit D52, a protest by the 3rd Defendant on how the Bank was being run by the Appellant and the 2nd Defendant. Furthermore, the 3rd Defendant has sold the shares he got from the scheme and returned the funds to the Bank, making it unnecessary to make an order of restitution against him. Respondent urged the court not only to resolve 1ssue 3 against the Appellant but to dismiss the appeal and affirm the conviction of the Appellant and the order of restitution made against him.
Learned senior counsel for the Appellant filed a Reply Brief in response to the argument in the Respondent’s Brief. Where necessary, I will refer to it in the resolution of the issues.
Resolution of issues - Issue 1
The complaint of the Appellant under Issue 1 had to do with the use to which exhibit D39 was put to and the weight that was attached to it by the lower court. The said exhibit was tendered by the Appellant through his witness, DW10, to prove that the seven companies named in the charge were incorporated by and belonged by FinBank Plc. The lower court however admitted the document, a certified true copy, in evidence for a limited purpose only, not for the purpose of proving its content, because the Lagos State High Court that certified exhibit D39 was not the custodian of the original of that document. The Appellant complained that despite the lower court’s ruling admitting exhibit D39 for a limited purpose only and disallowing DW11 from leading evidence on the content of the document, the court allowed the Respondent to thoroughly cross examined the Appellant’s witness on it without affording equal opportunity to the Appellant to examine his witness on exhibit D39 tendered by him, thereby denying him his constitutional right to fair hearing. The Respondent contended otherwise insisting that the Appellant was given equal opportunity with the Respondent to examine and cross examine witnesses, i.e., DW10, DW11 and DW17 on exhibit D39, and that there is nothing on the Record to show that the Appellant was prevented from examining his witnesses on the said exhibit.
The right to fair hearing is a constitutionally guaranteed right, observance of which gives validity to any legal proceeding. Section 36 (1) of the Constitution of the Federal Republic of Nigeria, !999 (as amended) which encapsulates the right to fair hearing provides:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
Fair hearing within the meaning of the above quoted provisions means a trial conducted according to all the legal rules and procedures formulated to ensure that justice is done to the parties, Ariori vs. Elemo (1983) LPELR-552 (SC); Nwokocha vs A.G. imo State (2016) LPELR-40077 (SC); INEC vs. Musa (2003) LPELR-24927 (SC), per Tobi, JSC. The true test of whether a trial is conducted fairly is the impression of a reasonable man or an impartial observer who was present at the trial, whether from his observation he will conclude that the court was fair to all the parties in the proceedings, i.e., that justice has been done. See Amanchukwu vs. F.R.N. (2009) LPELR- 455 (SC); Mpama vs. First Bank of Nigeria Plc (2013) LPELR-19896 (SC); Pam vs. Mohammed (2008) LPELR-2895 (SC). A party complaining of the breach of his right to fair hearing must be able to show that he has not been accorded a fair opportunity to ventilate his grievances before the court, and the determination of such complaint depends upon a careful consideration of the facts and circumstances of each case.
Therefore, the concept of fair hearing lies in the procedure followed by the court in the determination of the case, not in the correctness of the decision. In other words, in deciding whether a complaining party has been afforded fair hearing in a matter or not, the determining factor shall be the procedure adopted by the lower court in arriving at its decision. Where the court followed procedural due process during the trial and determination of a case, the kite of fair hearing against the decision will not fly, even if the decision is found to be wrong by the Appellate court. That is one aspect of the right to fair hearing. The other aspect is that once the enabling environment is created evenly to the parties to present their respective cases, a party who fails, refuses or neglects to take advantage of the opportunity accorded him by the court cannot turn round to complain and shout ‘fair hearing’. The law is settled on this point. See Akike vs LPDC (2005) LPELR-2450 (SC); Newswatch Communications Ltd vs. Atta (2006) LPELR- 1986 (SC) @ p.25; Bill Construction Company Ltd vs. Imani & Sons Ltd/Shell Trustees Ltd (2006) LPELR-782 (SC). The concept, which is synonymous with fair trial, connotes giving equal opportunity to the parties to be heard in the litigation before the court. It is a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties. See INEC vs. Musa (supra); In the case of Ovunwo vs. Woko (2011) LPELR-2841 (SC), the Supreme Court, Per Adekeye, JSC, held:
“The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing.”
It follows therefore that where one of the parties to the litigation is not giving an opportunity to be heard, the principles of fair hearing is breached. Similarly, where the Judex descends into the arena of contest in favour of one of the parties before it, there cannot be said to be fair hearing. We shall now take an excursion into the Record of Appeal to determine whether the complaint of the Appellant that he was denied equal opportunity with the Respondent to present his case before the lower court in respect of exhibit D39 can be substantiated therefrom.
Exhibit D39 was tendered by DW10, Elonna Ezumu, who was subpoenaed on behalf of the Appellant to produce documents relating to the incorporation of the seven companies and to testify. The exhibit was not produced by DW11 as wrongly alluded to in the Appellant’s Brief of Argument. The testimony of DW10 started at page 2562, Volume 5 of the Record when he was sworn in as a witness. He was led in evidence by Mr. Oragwu, on behalf of the Appellant. Starting from page 2563, Volume 5 of the Record to page 2632, Volume 6 of the Record. Mr. Oragwu asked DW10, who produced and tendered exhibit D39, a total of 171 questions to which the witness duly provided answers without the slightest interference by the lower court. The questions and answer session lasted completely unhindered and uninterrupted by the lower court. It is therefore not correct as submitted by learned senior counsel for the Appellant that after producing and tendering exhibit D39 the witness was disallowed from answering some questions with respect to the exhibit or that counsel on behalf of the Appellant was prevented from asking certain questions on the content of the said exhibit. A perusal of the Record did not bear out the Appellant’s complaint. Mr. Oragwu had a free hand in leading DW10 the way and manner he deems fit, and the Record shows that he did so without asking him a single question on the content of exhibit D39. That was his choice and discretion, but the lower court never interfered in all the questions asked except to ask that what appears unclear be made clear. The lower court never gagged counsel while leading DW10 from asking questions on the content of exhibit D39 which the witnessed produced and tendered. Page 2645 of Volume 6 of the Record of Appeal referred to by the Appellant’s counsel contained the record of cross examination of DW10 by counsel to the 2nd Defendant after counsel for the Appellant has informed the court that he was done with the witness. That page has nothing to do with the examination in-chief of DW10 by the Appellant’s counsel. At the page of the Record under reference (page 2645), Mr. Osinusi, learned counsel for the 2nd Defendant, asked DW10 if the Internal Memo marked exhibit D39 contains the signature of the Company Secretary of FinBank and the witness confirmed it. The witness was asked who the document was addressed to and his answer was “the Group Managing Director and Chief Executive Officer.’ It was at this point that the lower court reminded Mr. Osinusi of the limited use to which the document was admitted. Mr. Osinusi informed the court that he wanted the witness to clarify certain things and the court gave him the go ahead. Mr. Osinusi took the witness through the process of incorporation of companies in FinBank and in FCMB and who reserve the power to authorize the incorporation. He also asked the witness repeated questions on the contents of exhibit D39 but the witness said he cannot read as the font was small. It will be of interest to reproduce part of the encounter between Mr. Osinusi and DW10 to show that counsel was not prevented from asking the witness questions on the content of the exhibit despite the initial reminder by the Court. However, in view of constraint of time and space, I resist my innermost temptation to do a verbatim reproduction of the encounter as contained at pages 2645-2647, Volume 6 of the Record. This encounter clearly shows that the inability of Mr. Osinusi to extract answers from DW10 on the content of exhibit D39 was not because he was prevented from doing so by the lower court but because the witness said he cannot read the exhibit. It also shows that the witness does not know the level of authority (whether it requires Board approval or only the Secretary’s approval) that will approve the incorporation of a company in FinBank Plc because he has never worked in the unit that handled incorporation of companies. In a similar vein, upon going through pages 2715 – 2796, Volume 6 of the Record which contains the evidence of DW11, David Idenu, I found that the Appellant’s counsel thoroughly examined the witness on sundry exhibits such as P1, P2, D27, D29 and D39 wherein the witness identified and listed the seven companies named in the charge as companies that were incorporated and owned by the Bank with the approval of the Executive Management Committee. The seven companies which DW11 said he was aware of and listed them at page 2739, Volume 6 of the Record are: Omden Oil & Gas; Ferbond Real Estate Ltd; Busch Modern Machine Tools Ltd; Tyco Food Processors Ltd; Eureka Global Ventures Ltd; Scannell Investment Ltd and Coast Lake Nigeria Ltd. DW11 was cross examined by the other Defendants and the Prosecution on his evidence in-chief. Similarly, DW17, Mr. Opeyemi Adegboyega Oye was led by Mr. Oragwu on behalf of the Appellant to testify on the seven companies and exhibit D39 without hindrance – See pages 3648 – 3649, Volume 8 of the Record of Appeal. The other Defendants and the Prosecution also cross examined DW17 on his testimony. This accord with the fair hearing principle. The Appellant’s allegation that either the Appellant or the 2nd Defendant were not given equal opportunity to examine or cross examine DW10 and DW11 on the content of exhibit D39, as was given to the Respondent, has not been established as same was not borne out of the Record. What the Record has shown clearly is that both parties were afforded equal opportunity in the examination of the witnesses with respect to exhibit D39, thereby joining issues thereon which requires resolution.
Even though the Record shows that exhibit D39 was admitted for a limited purpose only, not for the purpose of proving its contents, the Appellant, on whose behalf the exhibit was produced and tendered, as well as the other Defendants, decided to examine DW11 on its content and the lower court allowed them. This naturally prompted the Prosecution to also cross examine the witness on the said exhibit. Having thus allowed evidence to be led on exhibit D39, which evidence is in itself not inadmissible, the lower court will be abdicating its judicial responsibility if it shies away from considering the evidence led by both parties and ascribing probative value to it. Therefore, the lower court’s consideration of the evidence elicited from DW10, DW11 and DW17 by both the Appellant, the other Defendants and the Prosecution before arriving at its decision, took the case out of the ambit of denial of fair hearing, a browbeaten cliché used by many losing litigants. That the content of exhibit D39 was heavily relied upon by the Appellant to prove the incorporation of the seven companies by FinBank Plc and that the shares purchased in the names of the companies with the funds from the Bank was for the benefit of the Bank, did not stop at the trial stage through examination and cross examination of witnesses. It was further brought to the fore in the Appellant’s final address before the lower court, to which the Respondent countered in its own final address. This scenario left the lower court with no option but to resolve the issues joined by the contending parties on the incorporation and ownership of the seven companies. It shall also be noted that the facts related to the incorporation of the seven companies are not only contained in exhibit D39 alone, other exhibits also contained information about the seven companies and the shares purchased and crossed to them by the Stock Broker, Springboard Trust & Investment Ltd. After all, it is a live issue and central to the trial. On this score, I hold that the trial was conducted according to the laid down rules governing criminal trials and parties were afforded adequate opportunity to present and defend their respective positions in the case.
Another complaint of denial of fair hearing raised by the Appellant in his Brief of Argument is that while his main purpose of tendering exhibit D39 was to prove that the seven companies named in the charge were incorporated by and belonged to FinBank Plc, the lower court suo motu used the exhibit for another purpose other than the main purpose for which it was tendered without giving the Appellant a hearing. The Appellant accused the lower court of using exhibit D39 to link him to one Ladded Will Nigeria Ltd or Ladder Will Nigeria Ltd stated therein, as the owner of the said Ladder Will Nigeria Ltd and therefore took benefit of shares allegedly transferred to the company. The lower court, according to the Appellant, arrived at this conclusion without any such allegation on the charge, without a single witness testifying to that effect and without allowing the Appellant to defend himself.
In the first place, in tendering exhibit D39 on his own accord, or any other exhibit for that matter, the Appellant lacks the power to restrict the court on the use to which the exhibit will be put to, so long as same was not just dumped on the court. There is a grave misconception on the part of the Appellant to assume that in the consideration and evaluation of an exhibit tendered by him, the lower court is bound to restrict itself to his purpose for tendering the document without more. That is far from being the law. The law is that a trial court can use exhibits tendered before it for all legitimate purposes without restricting itself to the purpose for tendering the document(s) by a party. Therefore, where a court finds that an exhibit when read together with other exhibits produces a result different from the one intended by the party who tenders the exhibit, the court should not hesitate to evaluate the exhibits and ascribe to them appropriate probative value. In doing so, there would be no need to call on the parties to address it, as such evaluation and inferences are usually done/drawn at the conclusion of trial. The Record shows that the Appellant was not prevented from examining and re-examining his witnesses, therefore, he cannot be said to have been denied his right to fair hearing.
In conclusion, I hold that the Appellant has failed to show that his right to fair hearing has been breached by the lower court, consequently, Issue 1 is resolved against him.
Resolution of Issue 2
Under this issue, the Appellant contended that the Respondent has failed to discharge the legal burden of proving the guilt of the Appellant beyond reasonable doubt and that the lower court was wrong in convicting the Appellant on the basis of grossly speculative and inchoate evidence. Learned senior counsel for the Appellant treated this issue under several sub- heads, starting with a challenge to the competence of the charge.
My lords, permit me to reiterate that under our criminal jurisprudence, the duty of proving the guilt of a Defendant standing trial for an offence(s) beyond reasonable doubt rest squarely on the Prosecution as the Defendant enjoys the presumption of innocence and is therefore not required to prove his innocence. See section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), section 135 (1) & (2) of the Evidence Act, 2011 and Isah vs. State (2017) LPELR-43472 (SC). Taking into consideration the primacy of the challenge to the propriety of the charge upon which the Appellant was tried and convicted, on account of incompetence, and its net effect on the entire proceedings of the lower court, being a threshold issue, I shall determine that challenge first.
It was submitted for the Appellant that the 9-Count Amended Information upon which the trial was based is bad for duplicity and multiplicity as counts 2 – 8 are duplication and multiplication of the same set of facts contained in count 1. The court was urged to hold that the charge goes contrary to the tenets of the law as the counts of misappropriation or conversion of funds contained in counts 2 – 8 are a duplication of count 1, and to proceed to set aside the conviction of the Appellant and strike out the charge for being incompetent. It was opined that the conviction of the Appellant on counts 2 – 8 after he was convicted on count 1 amounts to double jeopardy or punishing him for the same offence twice or more.
It was argued for the Respondent, on the other hand, that the offences charged in counts 1 and 2 – 8 contained different allegations, as the amounts contained in the various counts are not identical, hence the rule against duplicity has not been breached, and the court was prevailed upon to affirm the decision of the lower court that the charge is not bad for duplicity and multiplicity.
The rule against duplicity is that every count in a Charge or Information shall contain only one distinct offence. The law is that any count of charge which contains two or more offences lumped together is bad for duplicity. Similarly, charging a Defendant of the same offence in more than one count offends the law as it amounts to duplicity. The common law rule against duplicity in a charge finds legislative support in section 152 of the Administration of Criminal Justice law of Lagos State, 2011, the law under which the Information was preferred against the Appellant and the other Defendants. The section provides:
“For every distinct offence, with which any person is distinctly accused, there shall be a separate charge and every such charge shall be tried separately, except in cases mentioned in section 153.”
This provision means that as a general rule, every count must contain a distinct offence not offences. There are exceptions to this general rule which cover situations under which offences may be charged together as provided for in section 153 of the law as follows:
“Offences may be charged and tried together as the Court may deem fit in the following circumstances –
(i) Any three offences committed by a person within twelve (12) months whether or not they are of the same or similar character or whether or not they are in respect of the same person or persons; or
(ii) Any number of the same type of offence committed by a person; or
(iii) Any number of offences committed by a person in the course of the same transaction having regard to proximity of time and place, continuity of action and community of purpose.”
It can be seen from the above provisions that the offence of fraudulent conversion as charged in counts 1 – 8 of the Amended Information was committed in the course of the same continuing transaction and proximate with respect to time and place, thereby placing the charge squarely within the exception in section 153 (iii) of Administration of Criminal Justice Law of Lagos State, 2011. The Appellant and 3 other Defendants were charged in count 1 of the Amended Information for the offence of stealing through fraudulent conversion of an aggregate sum of N18,188,083,059.35 property of FinBank to the use of some named companies to buy 2,033,168,880 units of FinBank shares. The offence was alleged to have been committed between 8th August, 2006 and 14th November, 2007. In counts 2 – 8 the Appellant and the same 3 other Defendants were charged for fraudulently converting different but specific lesser sums of money belonging to FinBank out of the aggregate N18,188,083,059.33 contained in count 1, at different but specific period of time. That is to say, while in count 1 the Appellant and the other Defendants were charged for the total sum of money that was stolen within the span of sixteen (16) months for the benefit of eight (8) named entities, counts 2 – 8 contained the same charge of stealing of smaller amounts within shorter periods of time and for the benefit of different entities separately and distinctly named in each count. What I am trying to say is that the name of the company alleged to have benefitted from the fraudulent conversion of FinBank money to shares, the date of the commission of the offence and the amount of money involved as stated in count 2 is different from the name of the company, the date of the commission of the offence and the amount of money involved in counts 1, 3 – 8. The same thing applies to counts 3, 4, 5, 6, 7 and 8. Even though the offence in counts 1 – 8 on the Amended Information is that of stealing by fraudulent conversion, the dates of the commission of the offence, the amount of money involved and the company that benefited in all of counts 2 – 8 are distinct from one another. In other words, the particulars constituting the offence of stealing by fraudulent conversion in each of the counts is distinct from the others. From page 98 to 102 of her judgment, contained at pages 4892 – 4896, Volume 10 of the Record, the learned trial Judge admirably summarized in a tabular form the differences in the particulars of each count of the Amended Information before invoking the provisions of sections 148 and 153 of the Administration of Criminal Justice Law of Lagos State, 2011, to hold that the Amended Information is not bad for duplicity as the offence of stealing by fraudulent conversion was committed a number of times in the course of the same share purchase scheme but in different circumstances or ways. This decision is in tandem with the law and this court cannot interfere with it. I find and hold that the charge in the Amended Information dated 7th October, 2019 is not bad for duplicity.
Learned senior counsel for the Appellant urged in the Appellant’s Brief that in the event this court finds that the charge is bad for duplicity, same should be struck out for being incompetent. I have already held that the charge is not bad for duplicity, but for purposes of completeness, I shall proceed in the alternative in that direction. A perusal of paragraph 4 of the Notice of Appeal filed by the Appellant, the originating process in this appeal, indicate that the reliefs sought by him before this court did not include a prayer seeking for an order striking out the charge for incompetence, to give backing and support to the reliefs now being sought in the Appellant’s Brief. I discountenance that prayer for want of foundational basis. Assuming, however, that the Appellant has, among other reliefs, sought for the striking out of the charge on the ground that it is bad for duplicity and the court finds the charge to be bad for duplicity, what would be the legal consequence of such finding? The law is that a criminal trial cannot be vitiated by the appellate court for defect in a charge due to duplicity unless the Appellant is able to show that by virtue of the duplicity in the way the charge was framed, he was misled and prejudiced as a result of which he suffered miscarriage of justice. See The State vs. Gwonto (1983) LPELR-3220 (SC); Onakoya vs. F.R.N. (2002) LPELR-2670 (SC); Okwori vs. F.R.N. (2020) LPELR-52529 (CA); Abbas Jibrin vs. The State (2021) LPELR-56233 (SC); Makanjuola vs. State (2021) LPELR-54998 (SC). The issue of duplicity in a charge was raised before this court in the very recent case of Farouk M. Lawan vs.F.R.N. (2022) LPELR-56968 (CA). In reiterating the settled position of the law my learned brother, Dongban-Mensem, PCA, observed and commented as follows:
“For a charge to be bad for duplicity, it must contain more than one offence in the same count or a repetition of an offence already stated in another count…….
Furthermore, in addition, the Appellant must show how the duplicity of the charge misled him or caused him to suffer a miscarriage of justice. The courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the courts recognizes that we are humans and therefore fallible and susceptible to slips and minor errors. Where such errors do not in any way infringe on the fundamental rights of the accused person as enshrined in section 36 of the Constitution of the Feral Republic of Nigeria, 1999 (as amended), this court will not interfere with the decision of the trial court. I find the dictum of His Lordship, Kalgo, J.S.C. in the case of Onakoya vs. FRN (2002) LPELR-2670 (SC) very instructive on this issue.”
From the Record before us there is nothing to show that the Appellant did not understand the charge against him or that he was misled and prejudiced by the way and manner the charge was framed. To buttress his full appreciation of the 9-Count Amended Information, the Appellant robustly confronted the charge headlong by thoroughly cross examining the nine (9) witnesses called by the Respondent and calling a total of nineteen (19) witnesses in his own defence. He also tendered tons of documents which were admitted as exhibits in furtherance of his defence. The Appellant having failed to show that he was prejudiced or embarrassed by the charge, his quest for the charge to be struck out is not capable being acceded to. On the whole, the objection to the competence of the charge lacks merit and is hereby discountenanced. For the legal reasons advanced supra, the charge against the Appellant will neither be struck out nor will his conviction be set aside, assuming the charge was even bad or defective on account of duplicity in the first place.
The Appellant submitted that even though the charge accused him of stealing money belonging to FinBank to benefit Springboard Trust & Investment Limited and the seven companies, the evidence before the court shows that the money was not stolen but used to purchase shares on the instruction of the Bank, portions of which were sold and the proceeds remitted to the Bank. He contended that no evidence was led to substantiate the allegation that the Appellant stole a particular amount of money. He accused the lower court for refusing to follow the decision in Onagoruwa vs. State (supra) whose facts are the same with the facts of this case without any attempt at distinguishing it. He noted that even the tickets and approvals signed by the Appellant and admitted as exhibits P3 – P38 and which were relied upon by the Respondent, contained a total amount different from the amount in the Amended Information upon which the Appellant was convicted, as the cumulative amount in those exhibits is N14,103,73,851.37, and no attempt was made by the Prosecution to explain the difference between the amount stated in the charge and the cumulative amount in exhibits P3 – P8. In response, the Respondent submitted that what was stolen and converted was money belonging to FinBank Plc as found by the lower court in its judgment at page 4811, Volume 10 of the Record. He referred the court to exhibits P1A, P1B AND P2 to demonstrate that the total amount of money transferred from the account of FinBank, exhibit P2, to the account of Springboard Trust & Investment Limited, exhibit P1A, between 8th August, 2006 and 14th November, 2007, is N18,188,083,059.35, the aggregate amount quoted in count 1 of the Amended Information. I find, as did the lower court, that the sum of N18,188,083,059.35 being the amount credited to Springboard from the account of FinBank was equally confirmed by exhibit D26, a letter written by the Managing Director and Chief Executive of Springboard Trust & Investment Ltd as well as by the signatory of the letter himself, Mr. Shehu Yakubu Concern, DW8, when he testified under cross examination. This figure was additionally confirmed by PW4, the General Manager of Springboard Trust & Investment Ltd who testified with reference to exhibit D26 that Springboard Trust & Investment Ltd was credited with a total of over N18 Billion which it used in buying over two billion units of FinBank shares for the seven companies named in the Information, who were described by the Appellant and the other Defendants as customers and clients of the Bank. Exhibits P3 – P8 heavily relied upon by the Appellant cannot be considered in isolation in determining the amount of money credited to the account of Springboard Trust and Investment Ltd and debited from the account of FinBank, in the face of the statement of accounts of the Company and the Bank respectively admitted in evidence as exhibits P1A, P1B and P2. These two exhibits (P1A, P1B & P2) are conclusive proof that the sum of N18,188,083,059.35 was transferred from the account of FinBank Plc and credited to Springboard Trust & Investment Ltd for the purpose of buying FinBank shares for the benefit of the seven companies in question, namely; Eureka Global Ventures Limited, Busch Modern Machine Tools Limited, Ferbond Real Estate Limited, Scannell Investment Limited, Tyco Food Processors Limited, Omden Oil and Gas Nigeria Limited and Coast Lake Nigeria Limited. The amount in question is certain as established by exhibits P1 and P2. This explains the inapplicability of the case of Onagoruwa vs State (supra). From the evidence on the printed record, the finding of the lower court at pages 4811 and 4812, Volume 10 of the Record that what was stolen was money and that the money belonged to FinBank, cannot be faulted. Even the Appellant and the other Defendants do not dispute that the money was owned by FinBank. Furthermore, the evidence elicited by the Respondent from DW8, who was subpoenaed on behalf of the Appellant, on the content of exhibit D26, knocks the bottom off the argument by the Appellant that exhibit D26 was merely dumped on the court and therefore worthless. Dumping of document simply means that the document was tendered without leading oral evidence to identify and tie it to the specific aspect of a party’s case. The law is that it is not the duty of a court to conduct secret investigation on a document that is dumped on a court when the party that tenders it fail to demonstrate its purport in open court. See PDP vs. Alechenu (2019) LPELR-49199 (CA); APGA vs. Al-Makura (2016) LPELR-47053 (SC). In this appeal, even the Appellant’s counsel conceded in the Appellant’s Brief that after tendering exhibit D26 through DW8 during cross examination, the Respondent asked DW8 a few questions. It should be noted that the exhibit in question was tendered through the Appellant’s witness after the close of the Prosecution’s case. To speak to the exhibit and escape the consequences of dumping, the Prosecution doesn’t have to reopen its case and call additional witness(es) to demonstrate the document in open court. It suffices if he can employ the defence witness(es) through the instrumentality of cross examination to speak to the exhibit, which the Prosecution effectively did by extracting evidence that was damaging to the defence of the Appellant. Therefore, contrary to the submission of learned senior counsel for the Appellant, DW8 did speak to exhibit D26 while answering questions from the Respondent by confirming that over 18 Billion Naira was credited to the account of Springboard Trust and Investment Ltd which the company used in buying 2,033,168,880 units of FinBank shares for the benefit of the seven companies listed in the Information. Having been spoken to by DW8 under cross examination, I hold that exhibit D26 was not dumped on the lower court, rather, it is a credible and reliable evidence.
On the finding of the lower court that the transfer of 503,125,000 units of shares to the Directors and other companies constitutes an offence of stealing, the Appellant’s counsel marshalled what I consider a fanciful argument that the said finding is unfounded and amounts to speculative adventure as there was no allegation on the Amended Information that the Appellant stole 503,125,000 units of shares or any shares whatsoever belonging to FinBank Plc. It is important to note here that the grouse of the Appellant is not that the 503,125,000 units of shares were not transferred to the Directors, his grouse is that it was wrong for the trial court to hold that the transfer of shares to the Directors constitute an offence of stealing as the Amended Information did not allege stealing of shares. The trial court has demonstrated how the transfer of shares to the Directors and the other companies amounts to stealing. See page 4907 of the Record. First and foremost, the allegation in the Amended Information is that the Appellant and the other Defendants fraudulently converted the total sum of N18,188,083,059.35 belonging to FinBank by transferring the amount to Springboard Trust & Investment Ltd and the company, on the instruction of the Appellant, the other Defendants and one Akan Okon, said to be at large, used the money to buy shares in the name and for the benefit of the seven companies for whom they opened accounts with the Central Securities Clearing System. It is true that the Amended Information did not allege that the Appellant and other Defendants stole shares as such. It alleged that they fraudulently converted and/or misappropriated money belonging to the Bank which was used in buying shares. What transpired was that the Bank’s money was used by the Appellant and his management committee without the authorization/approval of the Board to buy shares which they fraudulently misappropriated. It was the Bank’s money that was fraudulently converted to shares in the name of some shadow companies which they subsequently crossed to themselves and to the companies in which they have interest. It was not the raw cash that they directly fraudulently converted but the shares that was purchased by the raw cash, which in itself was fraudulently moved out of the account of the Bank. Both the money and the shares purchased by it are things of value and are intricately tied to one another. The Appellant was not in anyway misled by the Amended Information that the Bank’s money was converted/misappropriated by him and the other Defendants through the share purchase scheme conceived by them. The charge was explicit that the money that was fraudulently converted to the use of Springboard Trust & Investment Ltd and the other seven companies was for the purchase of shares. It was this same money, translated into shares or exchanged for shares, that the Appellant and the other Defendants were alleged in the Amended Information to have fraudulently converted. It is as clear as a sunny daylight. In the instant case, the money and the shares are intricately interwoven that they cannot be separated. I find the Appellant’s argument faulting the lower court’s finding on the theft of 503,125,000 units of shares by the Directors as nothing but unnecessary recourse to technicality, whose golden days have since gone. I refused to be swayed by the fanciful argument.
Relying on the testimonies of PW3, the Financial Controller of FinBank, PW5, a staff of NDIC and DW17, who became a Director of FinBank after the removal of the Appellant, to the effect that no money belonging to FinBank was missing or stolen, learned senior counsel for the Appellant faulted the finding of the lower court that the money stolen belonged to FinBank. His attack was predicated on the fact that all the monies paid to Springboard Trust & Investment Ltd were reimbursements for shares purchased on the instruction of the Bank for companies belonging to and incorporated by the Bank. He submitted that on the basis of the evidences of these witnesses, the Prosecution’s case ought to have collapsed in its entirety. It was further argued that the finding of the lower court that the shares were used in a manner inimical to the Bank’s interest and transferred to people without payment directly, contradicts the finding of the court at page 4829, Volume 10 of the Record, that the shares purchased were intact and in possession of the Bank. It was contended that intention by the Appellant to steal the money of the Bank or defraud the Bank in anyway has not been proved by the Prosecution. He argued that the risk taken by the Appellant and other Directors of the Bank to trade in shares for profit was a business judgment and should not be punished criminally, no matter how stupid the decision may turn out to be, as the Business Judgment Rule grants Directors, Officers and Agents of a company immunity from law suits relating to corporate transactions if it is found that they acted in good faith.
All these submissions by learned senior counsel for the Appellant overlooks the following established facts:
The facts catalogued above, which have been substantiated by credible evidence during trial, clearly reveals the manifest criminal intention of the Appellant and the other Defendants to cause wrongful gain to themselves and wrongful loss to the Bank through the share purchase scheme using phantom companies. The Appellant and his management team falsely and fraudulently represented to the broker, Springboard Trust & Investment Ltd, that the seven companies were the customers and clients of the Bank and that the share purchase was mandated by the companies themselves with the Bank acting on their behalf. What a blatant lie conceived to give an intentionally fraudulent business transaction a cover and toga of legality. Another manifestation of the Appellant’s intention to steal the Bank’s money by fraudulent conversion is the secrecy and confidentiality that shrouded a business transaction that should otherwise have been conducted openly. What were the Appellant and the other Directors hiding from the prying eyes of the Regulators? Why was the Central Bank of Nigeria not aware of the so-called Special Purpose Vehicles? Why were the Directors and the Chairman of the Board credited with shares they have not applied for, bought or paid for? That criminal scheme of the Appellant and his team was exposed by the Chairman of the Board who rejected his own Greek gift of shares worth 1.2 Billion Naira. What about the other four companies (Rose and Mike, Ladder Will, Bib Amani and Noble Consulting) in whose favour, shares purchased for the seven Special Purpose Vehicles, were crossed over on the instruction of the Appellant and his management team? All these facts are manifestations of the Appellant’s intention to defraud the Bank and its customers.
On the contention that the decision of the Appellant and other Directors to trade in shares was a business judgment for which the Appellant should not be punished no matter what happened, I wish to observe that the facts highlighted above, such as the illegal use of unincorporated companies as vehicles for the purchase of shares, the improper purchase of FinBank shares purportedly by FinBank itself, the secrecy of the transaction, non-approval of the seven SPV’s by the Central Bank of Nigeria, illegal crossing of shares purchased with money belonging to the Bank for the benefit of the Appellant, other Directors and four companies linked to them without payment for same, coupled with the total lack of Board approval for the expenditure or investment of such magnitude, shows that the Appellant has not manifested a shred of good faith in the entire transaction to entitle him to the immunity from law suits as a result of business judgment, if any exist in our laws. Permit me to add that the instant case on appeal was not a law suit strictly so called, but prosecution for criminal offences. The two are governed by different legal rules.
On the argument by the Appellant that the testimonies of the Investigating Officers, PW6 and PW9, are hearsay, I do not intend to waste time on its resolution as the law is settled on the legal position of the evidence of investigation officers of all investigating agencies. In the case of Arogundade vs. State (2009) LPELR-559 (SC), the Supreme Court, per Onnoghen, JSC (as he then was, later, CJN), defined hearsay evidence as follows:
“In the case of Subramaniam vs. Public Prosecutor (1956) 1 WLR 965 at 969, heresay evidence was described in the following terms; - “Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.” From the above, it is clear that the purpose for which a statement made by a person to the witness is tendered in court determines its admissibility since if the intention of introducing the evidence is to establish the truth of the statement/evidence it would be hearsay and inadmissible but would be admissible if the purpose or intention is to establish the fact that the statement was made by the person concerned.”
Being an issue of substantive law of evidence, section 37 of the Evidence Act, 2011, describes hearsay evidence thus:
“Hearsay means a statement-
The provision is explicit that hearsay evidence, oral or documentary is inadmissible and lacks probative value. In the case of FRN vs. Usman & Anor (2012) LPELR-7818, Rhodes-Vivour, JSC, illustrates the concept, applicability and/or non-applicability of hearsay evidence at pages 19 – 20 of the Report in the following words:
"The question to be answered is what constitutes hearsay evidence. A witness is expected to testify in Court on oath on what he knows personally. If the witness testifies on what he heard some other person say, his evidence is hearsay. Such evidence is to inform the Court of what he heard the other person say e.g. in cases of slander. If on the other hand his testimony is to establish the truth of an event in question or as in this case to establish the truth of the contents of the appellants statements, it is hearsay and inadmissible evidence. Hearsay evidence is secondary evidence of an oral statement best described as second-hand evidence. What a witness says he heard from another person is unreliable for many reasons. For example he may not have understood the informant/interpreters, or he may say things that were never said. Such evidence remain hearsay evidence because it cannot be subject to cross- examination in the absence of the informant/interpreters."
The evidence of an Investigating Police Officer with respect to what he saw, witnessed, information received or discoveries made in the course of his duty as an investigator, is admissible as direct evidence and does not amount to hearsay evidence. The law on this point is settled. See Kamila vs. State (2018) LPELR-43603 (SC); Obaleke vs. FRN (2018) 7 SCM 133 @ 140; Oaoye vs. The State (2018) LPELR-43601 (SC); Anyasodor vs. State (2018) LPELR-43720 (SC); Osareren vs FGN (2018) LPELR-43839 (SC). The evidence of the Investigating Police Officer (IPO) and the Investigating Officers from the Economic and Financial Crimes Commission, of facts acquired or discovered during investigation constitutes an exception to the rule against hearsay evidence as such evidence is considered direct evidence. I will therefore not discountenance any aspect of the evidence of the IPO on the ground of hearsay as urged by the Appellant.
On the inconsistencies in the name of one of the seven share benefiting companies, written in the charge as Eureka and in exhibit D39 as Ekureku and in the letter written by EFCC to Corporate Affairs Commission requestion to know whether the company was registered or not, it was written as Ekureka. The Appellant attacked the lower court’s finding that the mix up in the name was a result of spelling error. It was submitted that the finding on the inconsistencies in the name of the company was enough to raise a doubt on the veracity of the Respondent’s case, which ought to have been resolved in favour of the Appellant by discharging and acquitting him. The name of Eureka Global Ventures Ltd appeared in counts 1 and 2 of the Amended Information as one of the seven shell companies. That was the name in the charge against the Appellant and not any other. In stating that the versions of the name ‘Ekureka’ and ‘Ekureku’ were spelling errors, the learned trial Judge was very explicit that the Prosecution has not made out any case against the Appellant that Eureka Global Ventures Ltd is a company owned by him. The learned trial Judge observed in her judgment at pages 4903 – 4904, Volume 10 of the Record, as follows:
“There is one more thing on the case of fraudulent conversion. It is with regard to count 2 of the Amended Charge, which is about the company named as Eureka Global Ventures Limited. I must make it clear that there was no case made out against the 1st Defendant that the company belonged to him. And so, despite my observations that the enquiry made by the EFCC at the Corporate Affairs Commission during the stage of investigation was about a shell company named as “Ekureka Global Ventures Limited” and not “Eureka Global Ventures Limited” (as reflected in Exhibit P152), and despite the fact that Exhibit D39 shows that a company named to be “Ekureku Global Ventures Limited” was “given” to the 1st defendant at a time before FinBank Plc came to be, the case against the 1st Defendant on this score was only ever about a fraudulent conversion to the use of another entity named as “Eureka Global Ventures Limited”. That was the case made out, it was the case he was notified about, it is the case he answered to, and fundamentally, it has been the case the court considered and determined in this judgment. No other case than that. Those observations on the similarity in names, therefore, have no bearing or impact on the actual merits of the case, and the outcome of the case.”
With this clear observation by the lower court, the issue of inconsistency in the name of the company and the resolution of the attendant doubt that might have arisen from it in favour of the Appellant, does not even arise. The charge is very clear, devoid of any inconsistency or doubt.
Learned senior counsel for the Appellant contended that the invocation of the presumption of withholding evidence under section 167 (d) of the Evidence Act against the Appellant for his failure to produce minutes of Board meeting is a breach of the sacred presumption of innocence in his favour, as it is the duty of the Respondent to establish that there was no Board approval for the transaction undertaken by the Bank. Right from inception, the case of the Prosecution was that the Appellant and the other Defendants transferred the humongous sum of 18.18 Billion Naira to Springboard Trust & Investment Ltd for the purchase of shares without the Board’s resolution and approval. In the Appellant’s statements to Investigators in 2009, admitted as exhibits P154 – P157, the Appellant stated that there was no Board approval for the disbursement of funds for the purchase of shares. The Appellant and his team were expecting the approval would be given but was not forthcoming. At exhibit P157, the Appellant wrote: “All disbursement approvals are based on anticipatory go ahead by the Board in respect of the asset management facility.” In the same vein, none of the other Defendants stated in their respective extra judicial statements that they obtained Board approval before the transaction. Their statements are exhibits P158 – P161 for the 2nd Defendant, P148 for the 3rd Defendant and P162 – P164 for the 4th Defendant. It was the Appellant and the 2nd Defendant that departed from their earlier extrajudicial statements during their oral testimonies in court in which they claimed that there was Board approval without tendering same in court. However, in proving that there was no approval, the Respondent tendered exhibit P165 which contains all the resolutions passed by the Board between 2006 and 2007. In the said exhibit, there was no Board resolution authorizing the Appellant and other Defendants to use Bank funds to acquire FinBank’s shares. The Appellant has not tendered any resolution of the Board that countered exhibit P165. I am in absolute agreement with the submission of learned senior counsel for the Appellant that the Appellant is entitled to enjoy the constitutional presumption of innocence in his favour. The law is settled that the onus of proving the guilt of the accused person beyond reasonable doubt is always on the Prosecution and never shifts. See Uche Nwodo vs. The State (2018) LPELR-46335 (SC); However, where the prosecution has proved the guilt of the accused person, the onus of proving doubt in the Prosecution’s case will shift to the accused person. In this case, the overwhelming evidence, supported by the extra judicial statements of the Appellant and the other three Defendants given in 2009 is that as at 2006 when the share purchase transaction started there was no Board approval. That aspect of the Prosecution’s case therefore stands established. The duty of casting doubt on the absence of approval by showing the existence of approval then shift to the Appellant and the other Defendants. It is the Appellant’s failure to produce and tender the Board’s approval which he claimed existed, that led the lower court to invoke the presumption of withholding evidence against him. After its finding that the Appellant has failed to show that there was Board approval for the share transaction embarked upon by the management of the Bank, it was unnecessary and wrong for the lower court to proceed to invoke the provision of section 167 (d) of the Evidence Act against the Appellant with respect to the issue of Board’s approval.
On the conviction of the Appellant on the charge of conspiracy to steal, learned silk submitted that no scintilla of evidence was led to prove agreement between the Appellant and the other Defendants to do an unlawful act, as their act of signing exhibits P3 – P8 relied upon by the lower court to infer conspiracy, was done in furtherance of their duties as Directors of the Bank without more. The offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. The essential ingredients of the offence lies in the agreement to do an unlawful act which is contrary to or forbidden by law and it does not matter whether or not the Defendant has knowledge of its unlawfulness – Clark vs. The State (1986) 4 NWLR (Pt.35) 381. The offence of conspiracy is the meeting of the minds of the conspirators and is hardly capable of direct proof. Conspiracy is only proved by inference from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them. The crime of conspiracy is usually hatched with utmost secrecy and that is why the law permits inference to be drawn in prove of it, as opposed to direct evidence. See Nnosike Iboji vs. The State (2016) LPELR-(40009) (SC); Patrick Njovens & Ors vs. The State (1973) LPELR-2042 (SC); Okemefune Ndozie vs. The State (2016) LPELR-26067 (SC); Bello Okashetu vs. The State (2016) LPELR-40611 (SC); Awosika vs. The State (2018) LPELR-44351 (SC).
It is settled law that where a charge contains the offence of conspiracy and substantive offence, the approach is to first deal with the substantive offence before determining how far the offence of conspiracy had been made out by inference from the substantive offence. This is because a charge of conspiracy, which is difficult to prove by direct evidence, automatically fails where the substantive offence has not been established. See Agugua vs. The State (2017) LPELR-42021 (SC); Osetola & Anor vs. State (2012) LPELR-9348 (SC). It is this approach that the trial court adopted in its judgment when it drew inferences from proved facts to hold that the offence of conspiracy has been established against the Appellant and the other Defendants. After quoting the dictum of Coker, JSC, in Patrick Njovens & Ors vs. The State (supra), the trial lower court held in its judgment at page 4910 of the Record:
“… I find from the actions of the Defendants in devising this scheme by which monies belonging to the Bank which they knew could not be spent without the authority of the Bank because of the huge amount involved, and without the approval of that authority (the Board of Directors) were then illegally and deceitfully converted to the use of others to buy shares of the Bank, they exhibited a meeting of minds to do unlawful act. By their actions in directing Mr. Okon to carry out the scheme and then signing the approval memos he presented in execution of the scheme, they, by these overt acts, made manifest their common goal. This, in my respectful view, suffices to prove the offence of conspiracy. And as Justice Coker made clear, it matters not that they did not all sign each and every approval memo, and did not do so together at one and the same time. It suffices that they signed one or the other of the memos in the implementation of the scheme. It suffices that each one of them participated in the steps taken by them all to achieve that common purpose.”
This finding is sound and unassailable, as it is supported by the evidence on record. I endorse it accordingly. Consequently, I find no merit in the Appellant’s complaint over his conviction for the offence of conspiracy to steal.
In the final analysis, I resolve Issue 2 against the Appellant.
Resolution of Issue 3
Under this Issue, the Appellant questions the propriety of the order of restitution made against him and the 2nd Defendant to refund the sum of N18,188,083,059.35 to the relevant Federal Government Agency. In sentencing the Appellant and the 3 other Defendants at pages 16 – 19 of the Additional Record of Appeal, the trial court ordered the Appellant and the 2nd Defendant “to repay the sum of money that was stolen by them form FinBank Plc, this being the sum of N18,188,083,059.35k (Eighteen billion, one hundred and eighty-eight million, eighty-three thousand, fifty-nine naira, thirty-five kobo) forthwith to the relevant Federal Government Agency.”
The Appellant complained that there was no basis in singling out the Appellant and the 2nd Defendant as the persons who should pay restitution when all the four Defendants arraigned before the lower court were found guilty of stealing and conspiracy to steal and convicted accordingly. Appellant also faulted the order for restitution on the ground that the Respondent did not ask for it and that AMCON to whom the payment was to be made is neither a party to the proceeding nor the owner of the money. He also accused the lower court of shutting its eyes to the finding made in the judgment that the sum of N8 Billion was remitted to the Bank as proceeds of sale of shares together with the unsold shares, and that the court did not premise its order of restitution on any finding that the Appellant personally took benefit of the N18.18 Billion Naira.
In response, the Respondent contended that the reasons for the order of restitution are contained at pages 1 – 19 of the Additional Record, among which is that the 3rd and 4th Defendants were not so much involved in the scheme as they were sidelined by the Appellant and the 2nd Defendant, who are the principal actors in the scheme of the fraud, as shown by exhibit D52. Further that the 3rd Defendant has paid back the value of the shares transferred to him from the tainted pool. The Respondent again submitted that by exhibit D29, payment in respect of the defunct FinBank is to be made to Asset Management Corporation of Nigeria.
The power of the lower court to make an order for restitution after conviction in a criminal trial is derived from section 297 of the Administration of Criminal Justice Law of Lagos State, 2011, the relevant law under which the Information was filed against the Appellant and the other Defendants. This power is exercisable by the court irrespective of whether the Prosecution applies for restitution to the victim of crime or not. The Appellant’s argument that the order for restitution was made without being asked for by the Prosecution may be plausible in the domain of civil law where claims are made in the originating process or statement of claim, but not in a criminal proceeding where the power to make such an order is provided for in a statute. The essence of restitution is to compensate the victim of crime for the loss suffered and restore him to the status before the commission of the crime. In making an order of restitution against only the Appellant and the 2nd Defendant to pay back the sum of N18,188,083,059.35K, the lower court gave its reasons when it observed at pages 16 & 17 of the Record that:
“With regard to the 1st and 2nd Defendants, I do find that they were the principal actors in this scheme of fraud. I find that they abused their positions of trust in steering the ship of the Bank. I find them to have been responsible for the share purchase scheme that resulted in the fraudulent conversion of the monies of the Bank.
There was, I believe, a real motivation for financial gain. It was a well planned and executed scheme (in other words, premeditated by them), and as I said, they have abused a position of significant responsibility…. From the evidence placed before, Exhibit D26, I believe payment is to be made to the Assets Management Corporation of Nigeria (AMCON).
With respect to the 3rd Defendant, I do not consider him to have been an active participant in the scheme. I have found that even though an Executive Director, he was sidelined in the management of the affairs of the Bank…. Again, I notice that he has been very remorseful, having paid back the value of the shares transferred to him…. The 4th Defendant was indeed a peripheral player in the scheme… “
From the evidence on record, the fraudulent share purchase scheme was hatched by the Appellant, the 2nd Defendant and Akan Okon, the head of investment banking. The trio all came to FinBank Plc from First Atlantic Bank, one of the four Legacy Banks that merged to become FinBank Plc. That explains why the share transaction was kept secret under confidential cover, with only the trio knowing the details. Akan Okon, upon receiving approvals, was directly processing payments to Springboard Trust & Investment Limited for the contract notes without letting any staff under him see the papers. All the documentation were in a vault under the control of Akan Okon. See page 1647, Volume 4 of the Record.
The finding that the 3rd Defendant was not involved in the fraudulent scheme is buttressed by exhibit D52, a letter of protest against how the Bank was being run by the Appellant and the 2nd Defendant. Furthermore, the fact that the 3rd Defendant has sold the shares he got from the scheme and returned the funds to the Bank, makes it unjustifiable to make an order of restitution against him. Ditto for the 4th Defendant. In all, the findings and observations of the lower court, quoted above, justifying the order for restitution against the Appellant and the 2nd Defendant, save for the total sum to be refunded, cannot be interfered with by this court, as the said findings and justification are supported by the evidence on record. However, in view of the established fact before the lower court as per exhibits P1A, P1B and P2 showing remittances of the total sum of N8 Billion (Eight Billion Naira) as proceeds of sale of shares to the Bank by Springboard Trust & Investment Limited, it will be unrealistic and unjustifiable in law to order the Appellant and the 2nd Defendant to refund to AMCON the total sum of money (N18,188,083,059.35k) transferred to Springboard Trust & Investment Ltd for the purchase of shares, without deducting the N8 Billion Naira that was remitted to the Bank. With respect to the unsold shares that the Appellant and DW8 said was returned to the Bank, no evidence was adduced on the number of units of the unsold shares that were returned to the Bank and their monetary value. In the circumstance, in reviewing the order of restitution made by the lower court, only the Eight Billion Naira remitted to the Bank as proceed of sale of shares would be deducted from the sum of N18,188,083,059.35k ordered to be paid as restitution. Consequently, the amount of restitution to be paid by the Appellant and the 2nd Defendant is reduced from N18, 188 083 059.35k to N10,188,083,059.35k.
Issue 3 is also resolved against the Appellant except with respect to the downsizing of the restitution payable from N18,188,083,059.35K to N10,188,083,059.35k (Ten billion, one hundred and eighty-eight million, eighty-three thousand, fifty-nine Naira, thirty-five kobo).
On the whole, save for the reduction of the restitution payable, I find this appeal to be bereft of merit and I dismiss it accordingly. The judgment of the High Court of Lagos State, coram: L.A. Okunnu, J., in Charge No. ID/115C/2011 delivered on 5th January, 2021, is hereby affirmed, save for the variation in the amount of restitution ordered to be paid by the Appellant and the 2nd Defendant as indicated above in this judgment.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
Chief A.I. Idigbe, SAN, with N.K. Oragwu and A. Abdulsalam for the Appellant.
Rotimi Jacobs, SAN, with S.A. Ogundele for the Respondent
CA/LAG/CR/496/2021 M.I. SIRAJO, JCA | PAGE OF |
