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/497/2021
BETWEEN:
DAYO FAMOROTI …………………… ……….. APPELLANT
AND
FEDERAL REPUBLIC OF NIGERIA …………….. RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
The appeal here is against the judgment of the High Court of Lagos State (the lower court) delivered on 5th January, 2021 by L.A. Okunnu, J. Before that court, the Appellant, Dayo Famoroti, a former Executive Director with the defunct FinBank Plc, was arraigned together with Okey Nwosu, the former Managing Director of the defunct FinBank and two other Executive Directors, namely; Mr. Danjuma Ocholi and Mrs. Agnes Ebubedike, 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. The Information was dated 29th March, 2011 and filed the same date. Upon their arraignment before the lower court on 10th May, 2011, the 3rd and 4th Defendants, Mr. Danjuma Ocholi and Mrs. Agnes Ebubedike, 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, who was the 2nd Defendant and Okey Nwosu, the 1st 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 testified alone for himself without calling additional witness. Ditto for the 3rd and 4th Defendants. The 1st Defendant called a total of nineteen (19) witnesses including himself. 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 6398 – 6514, Volume 13 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 1st 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 1st 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 nineteen (19) grounds of appeal on 30th 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 6606 – 6621, Volume 13 of the Record of Appeal.
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 2nd Defendant in the lower court, was one of the Executive Directors of Finbank Plc. The 1st Defendant was the Managing Director whilst the 3rd and 4th Defendants were also 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, Seyi Sowemimo, SAN, adopted the Appellant’s Brief of Argument and the Reply Brief and urged the court to allow the appeal. Adebisi Adeniyi, on the other hand, adopted the Respondent’s Brief of Argument and urged the court to dismiss the appeal.
In the Appellant’s Brief of Argument, five issues were distilled for the determination of the appeal, as follows:
The Respondent collapsed the Appellant’s Issues 1, 2 and 3 into one issue and reformulated the issues for determination thus:
The issues crafted by both the Appellant and the Respondent are not dissimilar in substance and purport. As a matter of fact, the five issues formulated by the Appellant are the same with the three issues forwarded by the Respondent, though semantically worded differently. In view of the similarity of the issues submitted by both parties, I have decided to adopt the three issues formulated by the Respondent, with issue 1 being a consolidation of the Appellant’s issues 1, 2 and 3, in the determination of this appeal.
Appellant’s Argument on the Issues
Issue 1 (comprising of Isues 1, 2 and 3 crafted by the Appellant).
After quoting extensively from the judgment of the lower court at pages 6471 – 6473, Volume 13 of the Record of Appeal on the lack of Board approval of the shares purchase transaction, learned senior counsel for the Appellant, Seyi Sowemimo, SAN, submitted that the learned trial Judge erred in law in holding that the evidence of PW6, PW7 and PW9, who are Investigators from the EFCC and the Police, do not constitute hearsay when their entire evidence is based on alleged information obtained from 3rd parties, who were not called as witnesses. In support of this submission, reliance was placed on section 126 of the Evidence Act and the cases of Chime vs. Ezea (2009) 2 NWLR (Pt.1125) 263; UBN Plc vs. Ishola (2001) 15 NWLRE (Pt.735) 75; Utteh vs The State (1992) 2 NWLR (Pt.233) 257 @ 273. 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, PW6, PW7 & PW9 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 and hearsay and therefore cannot ground a conviction in a criminal trial, especially that the Investigating Officers are not members of the Board. It was argued that the 3rd parties who furnished information the Investigators are vital witnesses and that failure to call them to give evidence is fatal to the case of the prosecution, citing Dare Adekoya vs. The State (2020) LPELR-52213 (CA). The court was urged to invoke the presumption of withholding evidence under section 167 (d) of the Evidence Act against the Prosecution for its failure to call these vital witnesses, relying on the cases of Adike vs. Obieri (2002) 4 NWLR (Pt.758) 537; Ereku vs. Queen (1959) WR NLR 77. Learned silk contended that the burden of proving the absence of Board approval is on the Prosecution which it failed to do as the witnesses called by it only gave hearsay evidence. He accused the lower court of misplacement of burden of proof, the effect of which is miscarriage of justice, citing and relying on Onwubruche vs. Esegiwe (1986) 2 SC 305; Ihenacho vs. Chigere (2004) ALL FWLR (Pt.226) 206 @ 222; Zubairu vs. Mohammed (2009) LPELR-5124 (CA).
On whether the share purchase scheme was unlawfully undertaken, learned senior counsel submitted that the learned trial Judge never referred to the provisions of the Memorandum and Articles of Association or policy document of the Bank to support the view that a Board approval was necessary in order to lawfully undertake the shares purchase scheme. He argued that no evidence was led to show that the shareholders have, in a general meeting, repudiated the action of the Appellant and his co-defendants, just as no provision of any statute was cited by the trial Judge which renders the transaction unlawful without Board approval. Learned senior counsel contended that the finding of the lower court that the approval of the regulatory authorities, CBN and NDIC, is required for the share purchase scheme is puzzling and speculative as PW5, whose evidence was relied upon by the lower court is an Examiner from Nigeria Deposit Insurance Corporation and not a regulator. Cited in support are the cases of Ikenta Best (Nig) Ltd vs. A.G. rivers State (2008) LPELR-1476 (SC); Ivienagbor vs. Bazuaye (1999) 9 NWLR (Pt.620) 552 @ 555; State vs Aigangbee (188) 7 SC (Pt.1) 96; Ekeogo vs. Ashaka Cement Co (1997) 6 NWLR (Pt.508) 280 @ 292.
On whether the trial Judge was right in convicting the Appellant based on the totality of the evidence adduced, Appellant’s counsel submitted that intention (mens rea) to commit the offence of stealing has not been established against the Appellant and the learned trial Judged erred in finding otherwise. On the ownership of the seven companies used for the purchase of the shares by the Bank, it was argued that despite the defence of the Appellant that he had no interest in the seven companies and was not involved in their incorporation, the lower court accepted the submission of the prosecution that the seven companies in the charge were used for fraudulent conversion of the Bank’s monies by relying on the evidence of investigating officers from EFCC to hold that the companies had fake directors and addresses. Learned senior counsel also faulted the lower court’s reliance on the evidence of DW11 in holding that four of the seven companies were not yet registered, one had no incorporation documents and the other two companies, namely; Coast Lake Nigeria Ltd and Scannell Investment Ltd, registered by one of the Legacy Banks - First Atlantic Bank, never came to be owned by FinBank, as the premises upon which the lower court based its conclusion are flawed and reveal an inadequate or narrow view of the evidence. To buttress the above submission, he referred the court to the testimonies of some witnesses to the effect that the seven companies were incorporated and owned by the Banks and that their incorporation documents are with the Legal Department of FinBank: PW3 – at pages 1728 and 1747, Volume 4 of the Record; PW6 – at pages 1882, 1885, 1920, 1930 and 1973, Volume 4 of the Record; PW7 – pages 2048 and 2056; DW11 – at pages 2790, 2794, 2800 and 2859, Volume 6 of the Record; DW17 – pages 3362-3509, Volume 7 of the Record and DW8 – page 4401, Volume 9 of the Record.
Learned senior counsel submitted that the judgment of the trial court is riddled with contradictions in that after distancing the seven companies from the Bank at page 6448 of the Record, the learned trial Judge admitted at page 6456 that the shares, and by extension, the seven companies, were assets of the Bank, placing reliance on exhibit D47. On the four companies that were said not to have been incorporated at inception of the share purchase scheme, it was contended for the Appellant that their use at the time was legal as a promoter can engage in pre-incorporation contract under company law. Appellant further argued that in view of the finding of the lower court that the Appellant and the other Defendants played no direct role in the incorporation of the companies, it is puzzling that the court would input fraudulent intention to them, and hold that the use of nominee Directors and blank transfer forms was a deliberate ploy by them to clandestinely gain control of the companies.
On the allegation that the Appellant and other Defendants made illicit private gains from cross deals under the share purchase transaction, learned counsel posited that the finding of the trial court at page 6471 of the Record that fraudulent intent was exhibited by the transfer of the shares bought with the Bank’s money to the Appellant, other Defendants and companies linked to them, is speculative as there was no evidence linking the Appellant to any of the companies to which shares were crossed, rather, this was a case made out solely by the learned trial Judge for the benefit of the prosecution without evidence to substantiate same. On exhibit D39, counsel pointed out that the record shows that it was admitted for a limited purpose, but the trial court turned around to misconstrue and speculate on its content to convict the Appellant when no single witness testified that the Appellant had any link to any of the companies, or that he took ownership of shares transferred to any of the companies listed in exhibit P145. It was submitted that the learned trial Judge put exhibit D39 to use other than which it was used by the parties during trial, thereby occasioning a miscarriage of justice. That the evidence of PW3 that the Appellant and other Defendants did not steal the funds of the Bank during the shares trading transaction which was carried out in the interest of the Bank and that no monies or shares were missing as proceeds of sale of shares were fully received by the Bank, exculpates the Appellant and other Defendants and is adverse to and binding on the prosecution, citing Odi vs. Iyala (2004) 8 NWLR (Pt.875) 283; Okoya vs. Santili (1994) 4 SCNJ.
Learned senior counsel submitted that the finding of the lower court at page 6400 of the Record that the transaction was shrouded in secrecy and undertaken is without substance. He posited that it is astonishing that the claim that relevant Department and Officers of the Bank were not aware of the transaction is not borne out by the evidence on record. It was further submitted that it is puzzling that the evidence of PW3, who the court considers as a credible witness, was overlooked by the lower court, which boils down to lack of thorough evaluation of the evidence.
On the allegation of inaccurate recording/posting of the transaction in the Books of the Bank, which the lower court said was done to facilitate the fraud, Appellant’s counsel maintained that no evidence was laid to show that the Appellant was responsible for the alleged inaccurate postings of the transaction as he is neither the Financial Controller (PW3) nor the Chief Financial Officer of the Bank, Ijeoma Ozulumba, who was not called to testify with respect to the entries in the Books of the Bank. It was argued, relying on the English case of Devlin vs. Slough Estate Ltd (1983) BCLC 497 @ 503, that the way accounts are kept and recorded may not be straight jacketed, and may be a matter of business judgment. Learned senior counsel faulted the lower court’s reliance on the evidence of PW6 to hold that there was attempt to conceal the transaction in the Books of the Bank, in the absence of evidence from Ijeoma Ozulumba, who was fully aware of the transaction in her status as the Chief Financial Officer of the Bank. Learned senior counsel also argued that the allegation that the Appellant and other Defendants fraudulently misrepresented the true nature of the transaction is no supported by evidence. He referred to the evidence of PW6 with respect to the sale of 200 Million shares rejected by the Chairman of the Board and crediting the proceeds of 1.2 Billion Naira to the Bank’s account together with evidence of remittance of 8 Billion Naira to the Banks as proceeds of sale of shares, as evidence showing the trading nature of the transaction.
On the charge of conspiracy, Appellant contended that in view of the finding of the trial court that the relationship between the Defendants was not harmonious, it became speculative for the same court to conclude that the Appellant and the other Defendants acted in concert, especially in the face of the evidence that the 3rd Defendant was sidelined in major decisions of the Executive Management of the Bank. On the definition of conspiracy, the cases of Mulchay vs. R. (1868) 3 HL 317; Patrick Njovens & Ors vs. The State (1973) SC 17; Daro & Anor vs. The State (1977) 5 SC 222; Erim vs. The State (1994) 5 NWLR (Pt.346) 535. The court was urged to hold that in the absence of evidence of agreement by the Appellant and the other Defendants to do a defined unlawful act, the charge of conspiracy has not been satisfactorily established, which makes the judgment of the lower court on this count unsustainable.
Issue 2 (Appellant’s issue iv)
This issue challenges the order of restitution made against the Appellant and the 1st Defendant wherein they were ordered to refund the sum of N18,188,083,059.35k to the relevant Federal Government Agency, in this case, AMCON, as captured at pages 6514A – 6514D, Volume 13 of the Record. The Appellant’s challenge to this order is predicated on the following:
The court was urged to resolve this issue in favour of the Appellant and set aside the order of restitution made against him.
Issue 3 (Appellant’s issue v)
Under this issue, the powers of the Economic and Financial Crimes Commission, a Federal Government Agency, to prosecute the Appellant and the other Defendants for offences under a state law, is the object of attack by the Appellant. Appellant’s counsel submitted that the Information in respect of which the Appellant was convicted for stealing and conspiracy to steal was improper and incompetent as the Prosecutors (Federal Republic of Nigeria and EFCC) lack the authority to institute or prosecute criminal offences under a state law before a state court in the absence of lawful delegation of such powers to the EFCC by the Attorney General of the state, placing reliance on the cases of The Queen vs. Owoh (1962) NSCC 416, (162) 1 ALL NLR 659; Anyebe vs. The State (1986) 1 NWLR pg. 39 and section 174 of the Constitution of the Federal Republic of Nigeria, 1999, which limits the powers of the Attorney General of the Federation (including EFCC) to prosecute only in respect of offences created by an Act of the National Assembly. Learned senior counsel further submitted, with reference to section 253 of the Criminal Justice Administration in the High Courts and Magistrate Courts of Lagos State, that the power to prosecute shall be exercised in the name of people of Lagos State. He argued that the EFCC cannot usurp the powers of the Attorney General of Lagos State in the absence of proper delegation of the authority to prosecute on the face of the Information filed against the Appellant and other Defendants. It was urged upon us to hold that there was no Information properly before the lower court and to proceed to allow the appeal and grant the reliefs sought in the Notice of Appeal.
Respondent’s Argument
Issue 1
On his part, learned senior counsel for the Respondent commenced his address on Issue 1 by itemizing 33 salient findings of the lower court at pages 3 – 7 of the Respondent’s Brief which culminated in the conviction of the Appellant for the offences charged. He maintained that the Appellant has not shown that the findings are erroneous or that they are not supported by evidence adduced. On the offence of stealing which the Appellant argued that the Prosecution was unable to prove, without making reference to the ingredients that constitute the offence, learned silk for the Respondent disagreed with the Appellant and exhaustively analyzed the ingredients under 4 sub-heads at paragraphs 4.05 to 4.29, pages 7 - 11 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 – Is the thing stolen capable of being stolen?
Ingredient No. 2 – Was the thing owned by the alleged victim? (Ownership of the thing stolen)
Ingredient No. 3 – Was the money converted with fraudulent intent? (Intention to permanently deprive FinBank Plc of its money)
Ingredient No. 4 – Lack of Board approval.
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 6414, Volume 13 of the Record. Learned senior counsel for the Respondent observed that the Appellant did not consider the ingredients of the offences charged and the findings of the lower court on those ingredients. 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 the evidence of DW8 on exhibit D26 while answering questions under cross examination to show that the total amount paid to Springboard Trust & investment Ltd by FinBank between 2006 - 2007 for the share purchase scheme was N18,188,083,059.35k.
On ingredient No. 2, ownership of the thing stolen, learned senior counsel referred to the finding of the lower court in its judgment at pages 6414 – 6416, Volume 13 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 did not challenge the ownership of the money allegedly stolen and urged this court to consider this ingredient as having been established and that the court was right in its finding. 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 the money was converted with fraudulent intent, 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 Springboard Trust & 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 that the total 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 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, which findings are supported by the evidence on record as itemized at pages 21 – 23 of the Respondent’s Brief. Mr. Jacobs, SAN, submitted that in arriving at the conclusion that the fund was fraudulently converted, the lower court consider the following major points:
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, who was the 2nd Defendant, on this issue, in that before the lower court the Appellant testified that that there was Board approval for the purchase of over two billion shares, while earlier in his extra judicial statement tendered as exhibit P159, he stated that it was the management that approved facilities for some customers of the Bank, and that he was not in the meeting where it was decided that FinBank shares should be bought, but he summersaulted in his evidence before the court. learned counsel also referred the court to the extra judicial statement of the 1st Defendant admitted as exhibits P154 – P157, where he stated in exhibit P157 that the share purchase scheme was undertaken by the management in anticipation of approval by the Board, and not that the Board approval was obtained before the transaction. He (the 1st Defendant), also summersaulted when he testified before the court. It was submitted that the findings of the trial court at page 6475, Volume 13 of the Record that-
“Reading through the earlier written words of each of the 1st & 2nd Defendants (by this I mean their respective statements to investigating officer, made in the year 2009). It is clear that they had made the representation that there was no board approval. According to the 1st Defendant in Exhibit P157, the executive management team had approved the disbursement of the money in issue on the basis of the ‘anticipatory go ahead’ of the board. From the simple clear, ordinary meaning of those words, (and that is how court of law interprets words unless there was a technical meaning that required expert deciphering), the 1st Defendant was saying that they were yet to receive the approval of the board even though they expected that they would receive that approval. In other words, there was no approval as at August 2006 when payment started to be made.”,
cannot be faulted as it has not been shown to be perverse. 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 exhibit P158 – P161. This court was urged to uphold the finding of the lower court at page 6475, Volume 13 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 P158 – P161, the court was called upon to regard his evidence as unreliable, citing the case of 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.
Learned counsel also referred to the testimonies of PW6, PW7 and PW9 to the effect that from their investigation, after going through the minutes of meetings and resolutions of the Board, they found that there was no Board approval for the transaction.
On the submission made on behalf of the Appellant that the evidence of PW6, PW7 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, PW7 & 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 submitted that the evidence is clear from the evidence before the lower court that the seven companies named in the charge were not presented to Springboard Trust & 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.
Learned senior counsel for the Respondent further argued that exhibit D39 did not in any way prove that those seven 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.
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.
On the Appellant’s heavy reliance on the evidence of PW3 at paragraphs 5.3.3, 5.4.8 – 5.4.10 of the Appellant’s Brief 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 1708 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 1708 of Vol. 4 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 1709 of Vol. 4 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. On whether it was usual to keep the documents relating to share purchase with Akan Okon, PW3 stated at page 1709 of Vol. 4 of the record that “The transaction was actually a confidential transaction, so he keeps them in his custody because he originated them.” At page 1710 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 1759 of Vol. 4 “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.
The court was urged to discountenance the argument of the Appellant that PW3 gave evidence in support of his case, as the question as to whether shares were bought under the share trading scheme and that they were bought in the names of companies owned by the Bank are clearly not within the schedule of work of PW3, and s the evidence obtained from him may at best be described as ambivalent or speculative.
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.
With respect to the evidence of PW5 upon which the Appellant placed reliance to show that both the Central Bank of Nigeria (CBN) and the Nigeria Deposit Insurance Corporation (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 6479, Volume 13 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 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 the contract notes, exhibits P3 – P38, by the Appellant and the other Defendants.
Issue 2 (Appellant’s issue iv)
Proffering argument on Issue 2, 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 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. Learned senior counsel pointed out 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 1st 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 1st 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 1st 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. With respect to the amount of money remitted to the Bank as testified to by PW6, learned senior counsel maintained that by the evidence of PW6, the total remittance to the Bank till date is Eight Billion Naira and this include the 1.2 Billion Naira realized from the sale of 200,000 unit of shares transferred to and rejected by the Board Chairman. Respondent urged the court to resolve 1ssue 2 against the Appellant.
Issue 3 (Appellant’s issue v)
While referring to the cases of Queen vs. Owoh (supra) and Anyebe vs. The State (supra), cited by the Appellant’s counsel in his submission on this issue, Respondent’s counsel submitted that the law has moved from the position canvassed by the Appellant. He submitted that under sections 174 and 211 of the CFRN, 1999, the state AG or AGF and all other authorities and bodies are competent to initiate criminal proceedings in any court in Nigeria other than a court martial. He referred to the case of Okey Nwosu vs. FRN (2016) 17 NWLR (Pt.1561) 226 @ 278-280, 291, where similar issue was raised at the trial court and finally determined by the Supreme Court. learned senior counsel contended that the argument of the Appellant has been laid to rest by the Supreme Court in Shema vs. FRN (2018). Also cited is the case of Saraki vs. FRN (2016) 3 NWLR (Pt.1500) 531 @ 582 & 615 which decided that the Attorney General of the State or the Federation does not have exclusive authority to initiate and undertake criminal proceedings as other authorities such as EFCC are usually competent to initiate criminal proceedings.
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 Issue 1 (Combination of Appellant’s issues 1-3)
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, which I shall strive to distinctly resolve.
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 the case of Isah vs. State (2017) LPELR-43472 (SC).
In opening his argument under the sub-head dealing with lack of Board approval, senior counsel for the Appellant attacked the finding of the lower court at pages 6471 – 6473 and submitted that the evidence of the Investigating Officers, PW6 PW7 and PW9, to the effect that there was no Board approval for the share purchase scheme, is hearsay. I do not intend to waste time on the resolution of this sub-issue 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, PW6, PW7 and PW9, 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 any of these witnesses on the ground of hearsay as urged by the Appellant. Apart from the testimonies of PW6, PW7 and PW9, there are other pieces of evidence adduced by the Prosecution to prove absence of Board approval for a transaction involving such huge amount.
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 P158 – P161, the Appellant stated that there was no Board approval for the disbursement of funds for the purchase of shares. He was not in the meeting, if any, when it was decided that FinBank shares should be bought The Appellant and other Defendants were expecting the approval would be given but was not forthcoming. In his extra judicial statement to Investigators, exhibit P157, the 1st Defendant wrote: “All disbursement approvals are based on anticipatory go ahead by the Board in respect of the asset management facility.” In the same vein, neither the Appellant nor the other Defendants stated in their respective extra judicial statements that they obtained Board approval before the transaction. It was the Appellant and the 1st Defendant that departed from their earlier extra judicial 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 I not unmindful of the constitutional presumption of innocence in favour of the Appellant. 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 on record, especially the evidence of PW6, PW7 and PW9, further supported and reinforced by the extra judicial statements of the Appellant and the other three Defendants given in 2009, when the matter was still fresh, is that as at 2006 when the share purchase transaction started there was no Board approval for the scheme. This aspect of the Prosecution’s case therefore stands established. The duty of casting doubt on the absence of approval by showing the presence of approval then shift to the Appellant and the other Defendants, which they failed to discharge by establishing that the “anticipatory go ahead” was subsequently obtained. Consequently, I hold that the finding of the lower court on the absence of Board approval is outside the realm of speculation, that finding is predicated on concrete and credible evidence, including the admission of the Appellant and the other Defendants.
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 noted that five of the 36 approved memos, admitted as exhibits P3 – P38, were not signed by the Appellant, i.e., exhibits P22, P23, P24, P30 and P38. 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. 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 Trust & Investment Ltd 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 – P38 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 statements of account 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. From the evidence on the printed record, the finding of the lower court at pages 6414 and 6415, Volume 13 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, there is evidence on record which showed that after tendering exhibit D26 through DW8 during cross examination, the Respondent asked DW8 some questions on the said exhibit. 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 contended 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. 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 other Defendants management 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 and 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 any way 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 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 step 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:
10.The transactions being routed through sundry account were not properly recorded in the books of the Bank.
11.DW8 testified that his company, Springboard Trust & Investment Ltd, was mandated by the management of FinBank to buy only FinBank shares.
12.W3 testified that it is not normal or proper for the Bank to buy its own shares.
13.The seven companies, referred to as Special Purpose Vehicles were not registered with the Central Bank of Nigeria but Fin Capital and Fin Securities, subsidiaries of FinBank, were registered.
14.In the share purchase mandate letter to Springboard Trust & Investment Ltd, the management committee falsely represented the seven companies, for whose benefit the shares were to be purchased, as customers and clients of the Bank, not as companies incorporated by the Bank. One wonders why the management of FinBank were hiding the identities of the companies.
15.None of the seven companies maintain and operate an account with FinBank Plc and none of them was a client of the Bank as falsely claimed. They were merely vehicles used by the Appellant and the other Defendants for their fraudulent share purchase scheme.
16.Part of the shares purchased in the name of the seven companies were crossed over to the Directors of FinBank and other companies in which they have interest without payment by the Directors and the other four companies, namely Rose and Mike - fifty million units, Ladder Will – fifty-eight million units, Bib Amani – ninety million units and Noble consulting – forty million units. This evidence by DW8 confirms the finding by the trial court that the shares were stolen.
17.DW8 said he doesn’t know the identity of the four companies to whom the shares were crossed because he was only acting on instruction.
18.The Chairman of the Board rejected Two hundred million (200,000,000) units of shares crossed over to him and ordered that same be sold and the proceeds credited to the Bank. The sum of 1.2 Billion Naira was realized from the sale of those shares and the amount was credited to the Bank.
19.Even though the Appellant and other Defendants stoutly maintained that the seven companies in whose names the shares were bought were incorporated and owned by FinBank Plc, the Bank and its staff have no participation in the affairs of the companies either in the shareholding structure or directorship, nor are the addresses of the companies domiciled in the corporate headquarters of the Bank. No official of the Bank or the Bank itself was named as a Director or Shareholder of any of the seven companies.
20.The whooping sum of over 18 Billion Naira belonging to the Bank was spent on share purchase by the Appellant and other Defendants without the approval and resolution of the Board of Directors. This fact was further confirmed by the extra judicial statements of the Appellant and the other Defendants.
21.The Board of Directors were not aware of the seven companies as there was no Board resolution authorizing or sanctioning their incorporation by the Appellant and other Defendants.
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 other Defendants 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 Defendants 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 other Defendants 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 other Defendants? All these facts are manifestations of the intention of the Appellant and other Defendants 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 and other Defendants have not manifested a shred of good faith in the entire transaction to entitle them 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 exhibit D39, the Appellant argued that the record shows that it was admitted for a limited purpose, but the trial court turned around to misconstrue and speculate on its content to convict the Appellant when no single witness testified that the Appellant had any link to any of the companies, or that he took ownership of shares transferred to any of the companies listed in exhibit P145. It was submitted that the learned trial Judge put exhibit D39 to use other than which it was used by the parties during trial, thereby occasioning a miscarriage of justice.
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 1st Defendant 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 he was not confronted with exhibit D39 by the Prosecution, or given an opportunity to lead evidence on it. 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 cross examining witnesses on the said exhibit.
Exhibit D39 was tendered by DW10, Elonna Ezumu, who was subpoenaed on behalf of the 1st Defendant to produce documents relating to the incorporation of the seven companies and to testify. At the conclusion of his testimony, Dw10 was thoroughly cross examined by learned counsel, Mr. Osinusi, on behalf of the Appellant herein with respect to exhibit D39. Mr. Osinusi, learned counsel for the 2nd Defendant/Appellant, 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. 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. The Appellant’s allegation that he was not given 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 the said exhibit.
Even though the Record shows that exhibit D39 was admitted for a limited purpose only, the Appellant, and other Defendants decided to examine witnesses on its contents and the lower court allowed them. This naturally prompted the Prosecution to also cross examine the witnesses 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.
The Appellant also contended that the 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, but the lower court suo motu used the exhibit for another purpose other than the main purpose for which it was tendered, thereby occasioning a miscarriage of justice.
In the first place, in tendering exhibit D39 or any other exhibit for that matter, the Appellant, or any of the parties before the court, 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 before the court, 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.
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. 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 1 against the Appellant.
Resolution of Issue 2 (Appellant’s issue iv)
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 1st 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. The Appellant 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 another 1.2 Billion Naira proceeds of shares rejected by the Chairman of the Board, making a total of 9.2 Billion Naira, in addition to the unsold shares. It was argued 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 1st 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 essence of restitution is to compensate the victim of crime for the loss suffered and to restore him to the status before the commission of the crime. In making an order of restitution against only the Appellant and the 1st 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 Additional 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 1st 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. According to the evidence, all the documentation were in a vault under the control of Akan Okon.
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 1st 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 1st 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, which sum includes the 1.2 Billion Naira proceeds of sale of 200,000,000 units of shares rejected by the Chairman of the Board, it will be unrealistic and unjustifiable in law to order the Appellant and the 1st 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 returned 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 proceeds 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 1st Defendant is reduced to N10,188,083,059.35k.
In the circumstance, Issue 2 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).
Issue 3 (Appellant’s issue v)
Under this issue, the Appellant questioned the powers of the Economic and Financial Crimes Commission, a Federal Government Agency, to prosecute the Appellant and the other Defendants for offences under a state law. Appellant’s counsel submitted that the Information in respect of which the Appellant was convicted for stealing and conspiracy to steal was improper and incompetent as the Prosecutors (Federal Republic of Nigeria and EFCC) lack the authority to institute or prosecute criminal offences under a state law before a state court in the absence of lawful delegation of such powers to the EFCC by the Attorney General of the state, in this case, Lagos State. I note the counter argument proffered by the Respondent to the effect that the law has since moved from the position canvassed by the Appellant.
Now, section 174 of the Constitution of the Federal republic of Nigeria, 1999 (as amended) provides for the powers of Attorney General of the Federation in respect of prosecution of criminal cases. It states:
“(1) The Attorney-General of the Federation shall have power -
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria, other than a court-martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgement is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon the Attorney-General of the Federation under subsection (1) of this section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.”
Similar provisions have been made in section 211 of the Constitution with respect to the powers vested in the Attorney General of a State over criminal offences in respect of offences created by or under any law of the House of Assembly.
By the tenor of the provisions, the power of the Attorney General of the Federation in respect of criminal prosecutions in any court in Nigeria, other than a court martial, is limited to offences created by or under any Act of the National Assembly. Similarly, the powers of Attorney General of a state in respect of prosecution of offences created by or under a state law is preserved by section 211 of the Constitution. The question that begs for answer is whether by the provisions of sections 174 and 211 of the Constitution, only the Attorneys General of the States and of the Federation can initiate and undertake all criminal prosecutions to the total exclusion of all other prosecuting bodies, agencies and institutions in Nigeria. There is nothing in the provisions of the two sections to suggest that the powers of the Attorneys General in respect of initiation of criminal proceedings is exclusive to them. Sections 174 and 211 of the Constitution does not oust the power of other prosecuting agencies like the Police, EFCC, ICPC, etcetra, in prosecuting offences created by or under the Criminal Code, Penal Code, Administration of Criminal Justice Act or the Administration of Criminal Justice Laws of the various States. This much is recognized by subsections (1) (b) of sections 174 and 211 of the Constitution when it provides for taking over criminal proceedings instituted by any other authority or persons. See FRN vs. Osahon (2006) LPELR-3174 (SC); Saraki vs FRN (2016) LPELR-40013 (SC). Institution of proceedings before any court in Nigeria, other than a court martial, is not the exclusive prerogative of the Attorney General of the Federation and/or his counterpart in the State. The sections of the Constitution under reference only vest in the Attorney General of the Federation and of the State the power to control and regulate criminal prosecution, including the power to discontinue such prosecution, whether it was initiated by the Attorney General or any authority or person. The power of the Legal and Prosecution Unit of the EFCC to prosecute before any court in Nigeria in respect of economic and financial crimes, irrespective of whether the offences are created by or under a law of the House of Assembly or by an Act of the National Assembly, has been provided for in the Act establishing the Commission. See section 13 (2) of the Economic and Financial Crimes (Establishment) Act. In the exercise of its powers of prosecution in respect of economic and financial crimes created by or under the law of House of Assembly of a State, the EFCC can initiate the proceeding in the name of Federal Republic of Nigeria and it is not mandatory for it to obtain a fiat from the Attorney General of the State concern. See Shema vs. FRN (2018) LPELR-43723 (SC), where Bage, JSC, in his lead judgment stated at page 30 of the Reort:
“It is the intention of the makers of the law, that the EFCC prosecutes financial crimes. To the extent that a State has not, for the time being, established equivalent agency like the EFCC for dealing with economic and financial crimes at the State level, the powers of the EFCC remains extant. This is because the EFCC is vested with powers to co-ordinate and enforce related provisions in the Penal Code – which provisions do not violate any known law of Katsina State.”
In the same passage, His Lordship, Bage, JSC, proceeded to hold at page 31 that:
“The law evinces a clear intention that, with or without express delegation from the Attorney General of Katsina State, the EFCC could validly prefer the present charges and prosecute the Appellants in the name of the Federal Republic of Nigeria as a common agency of both the Attorney General of the Federation and Attorney General of Katsina State.”
After restating the duty of EFCC as a coordinating agency for the enforcement of the provisions of any law or regulation relating to economic and financial crimes including the Criminal Code and the Penal Code, as provided in section 7 (2) (f) of the EFCC enabling Act, 2004, Galumje, JSC, pungently stated at page 97 of his concurring judgment, thus:
“The fiat given by the Attorney-General of Katsina State to the EFCC was so given out of caution that they would not abuse any of the provision of the Constitution. Even without the fiat, the EFCC as an agent of the Federal Government had the power to prosecute the Appellants in the name of the Federal Republic of Nigeria before the Katsina State High Court for offences committed under the Penal Code of Katsina State.”
This is the end of the road for Issue 3, coined as Issue V by the Appellant. The authorities of Anyebe vs. The State (supra) and The Queen vs. Owoh (supra), cited by the Appellant are no longer good law on this point, and I hereby discountenance them. I hold that the Amended Information preferred by the Attorney General of the Federation and the Chairman, Economic and Financial Crimes Commission, against the Appellant and 3 other Defendants before the High Court of Lagos State, is competent. In the result, this issue is resolved against the Appellant.
Having resolved all the issues in this appeal against the Appellant, I find that this appeal is bereft of merit and is hereby visited with the consequence of dismissal. 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 amount of restitution ordered to be paid by the Appellant and the 1st Defendant which has been varied and pruned down from N18,188,083,059.35k (Eighteen Billion, One Hundred and Eighty-Eight Million, Eighty-Three Thousand, Fifty-Nine Naira and Thirty-Five Kobo) to N10,188,083,059.35k (Ten Billion, One Hundred and Eighty-Eight Million, Eighty-Three Thousand, Fifty-Nine Naira and Thirty-Five Kobo).
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
O.S. Sowemimo, SAN, with Subomi Osinusi for the Appellant.
Adebisi Adeniyi with S.A. Ogundele for the Respondent
