Ola Olu Titilayo & Ors V. The State (1997)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
The 1st, 2nd and 3rd appellants herein were respectively the 3rd, 4th and 7th accused persons before Jos High Court in Suit No. PLD/J54C/87 in which they together with seven other accused persons were jointly charged and tried in seven heads of charges for various offences viz: conspiracy, cheating by personation, forgery and criminal breach of trust under sections 97(1), 315, 324 and 366 respectively of the Penal code Cap 89 Laws of Northern Nigeria 1963. The heads of charges as they pertain to the appellants are 1, 2 and 7 and they read as follows:
“1. That you Edem Edokpolo, John Akudo, Ola Olu Titilayo, Michael Akpata, Gideon Pam Toma Tok and Chiroma Gunda between 14/9/79 and 21/2/85 at Vom, within the Plateau Judicial Division, being public servants in the employment of National Veterinary Research Institute as storemen and in that capacity entrusted with certain property; namely, vaccines valued at N137, 310.95 committed criminal breach of trust with respect to the said vaccines and you thereby committed an offence punishable under Section 315 of the Penal Code.
- That you Charles Etareri, Chiroma Gunda, Ola Olu Titilayo, Ede Edokpolo, and John Akudo, sometime in 1982 at Vom, within the Plateau Judicial Division agreed to do an illegal act namely, fraudulently approved and supplied vaccines to Charles Etareri and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
- That you Joseph Olalekhon, Ola Olu Titilayo, Chiroma Gunda, Michael Akpata and Tom Tok, sometime in July, 1983, at Vom, within the Plateau Judicial Division agreed to do an illegal act, namely, fraudulently approved and supplied vaccines to Joseph Ilalokhon and you thereby committed an offence punishable under Section 97(1) of the Penal Code.”
Each of the appellants pleaded not guilty to each head of charge. At the trial, the prosecution called a total of thirteen witnesses and tendered several documentary exhibits. Thereafter the appellants testified in their defence.
The gist of the case is that at all times material to the case, the appellants and 4 others accused, all of whom were 1st to 7th accused persons were storemen in the employment of the National Veterinary Research Institute Vom (Institute or NVRI for short). The institute produced assorted types of animal vaccines for supply to State Government and companies on credit. The vaccines on being produced were entrusted to the storemen (1st to 7th accused persons) who supply or issue them out on the approval of the Director of the Institute. The main plank of the prosecution’s case is that the storemen among whom were the appellants supplied vaccines to 8th, 9th and 10th accused persons without the authority of the Director of the Institute.
The 8th, 9th and 10th accused persons using fictitious names applied for and obtained the vaccines on credit from the Institute by falsely representing that they were agents of some reputable companies, vis Ogbemudia Farms Ltd, Delco Farms Ltd and Mitchel Farms Ltd. Audit investigation carried out by the Institute disclosed that the indebtedness of Ogbemudia Farms Ltd and Delco Farms Ltd, stood at N65, 575.80 and N79, 584.84 respectively. The fraud was exposed when an official of the Institute sought to recover payment from the aforesaid Farms and was told that they never authorised the 8th, 9th accused persons to receive any vaccines from the Institute on their behalf. The matter was reported to the police who after due investigation arrested all the accused persons and in consequence they were prosecuted.
At the conclusion of the trial, Uloko, C.J. found each of the appellants guilty as charged and sentenced each to imprisonment for 5 years or N10, 000 fine in respect of each charge. Aggrieved thereby, the appellants have appealed to this court. Mr. Makanjuola, learned counsel for the 1st and 2nd appellants filed notices of appeal on their behalf and pursuant thereto he filed an appellant brief. Similarly Mr. O.B. James representing the 3rd appellant filed a notice of appeal and later an appellant brief. The appeals were consolidated for determination. On 13/10/97, when the appeal came up for hearing, it was observed that although the respondents was duly served with both the appellants’ brief and the notice of hearing it neither filed its brief nor was it represented by counsel. We directed that the appeal should be heard. There upon learned counsel adopted their respective briefs and urged that the appeals be allowed. For the 1st and 2nd appellants, three issues were formulated for determination viz:
“1. Whether the appellant Ola Olu Titilayo and Michael Akpata could be convicted and sentenced for offence of criminal breach of trust when there was no wrongful gain to the appellants, the appellants did not act dishonestly and the respondent knew their debtors owing the amount forming the basis of first charge i.e. criminal breach of trust contrary to Section 315 Penal Code,”
- Whether the appellants Ola Olu Titilayo and Michael Akpata could be convicted and sentenced for offence of conspiracy, the trial Judge having convicted the 7th and 10th accused persons for offence of cheating by personation by deceiving the NVRI staff, the staff deceived includes the appellants?
- Whether the learned trial Judge could rely on the statement of co-accused, i.e. Exhibits 130 to 131 statements made to police by co-accused to convict the appellants when the appellants did not admit and/or adopt the facts contained therein?”
In the 3rd appellant’s brief the lone issue formulated is:
“Whether the conviction of the appellant can be justified having regards (sic) to the evidence before the court?”
Before I embark on the merit of this appeal I deem it necessary to point out that some of the issues as framed in the 1st and 2nd appellants’ brief are rather exceptionable. An issue for determination is a concise statement of the complaint of the appellant raised in the grounds of appeal. The issue raised must not be argumentative or be rendered in such a prolix manner that the issue becomes meaningless. The issue raised for determination should not contain argument of any kind. Whatever argument is intended to prop an issue should be canvassed in the appropriate part of the brief of argument. See Ojibah v. Ojibah (1991) 5 NWLR (Pt. 191) 296. An issue in an appellate court is a proposition of law or fact framed in a manner with an aim to determine the merit of the appeal: See Chukwuma Okwudili Ugo v. Amanchukwu Obiekwe (1989) 1 NWLR (Pt. 99) 566 at 580, See Amon Lodge Hotels Ltd v. Mercanthe Bank (1993) 3 NWLR (Pt. 284) 721 at 729.
The 1st and 2nd issues for determination as formulated in the 1st and 2nd appellants’ brief are, with respect to counsel, rather prolix, argumentative and inelegantly worded. They confuse rather than simplify matters. In considering the merit of this appeal I need only to refer to the reasons given by the learned C.J. in convicting the appellants and some of their colleagues. The reasons are contained on pages 236 to 240 of the record which read as follows:
“2nd Head of charge:-
It is preferred against the 1st, 2nd, the 3rd, the 7th and the 9th accused. The 9th accused has absconded the 2nd accused is dead. The 9th accused was represented by a counsel in spite of the fact of his abscondment. The charge alleges conspiracy to approve and supply vaccines to the 9th accused.
7th Head of Charge:
This Head of charge is like the 2nd Head of charge. It alleges conspiracy to approve and supply vaccines to the 10th accused. It is preferred against the 3rd, 4th, 6th and 7th, 10th accused.
To prove these two charges, one must have to examine, with searching scrutiny, the evidence as contained in Exhs. 130 and 131, very carefully.
Exh. 130 contain the comprehensive statements of the 9th accused. The statements are confessional. They go to establish the following facts, namely, that –
(a) he, Charles Etareri in the service of the Delco Farms Ltd until 1981 when he left the Delco Farms;
(b) in 1982 he started to purchase vaccines from NVRI using the name of Delco Farms Ltd;
(c) the 1st, 2nd, 3rd, and 7th accused told him that he did not need any approval from PW1 before getting the vaccines; they told him not to follow the laid down procedure for procuring the vaccines;
(d) the 1st, 2nd, 3rd and 7th accused advised him that since he was no longer in the service of Delco Farms Ltd. he should use fictitious names to collect vaccines; he accordingly used the names mentioned here below –
(i) Matthew Omorodion;
(ii) Richard Omoriodion;
(iii) Charles Omoriodion;
(iv) Charles Etareri, to collect vaccines.
(e) he made payments for the vaccines to these same accused persons who advised him that he should not be seen very often in the Accounts section of the NVRI;
(f) because of the concerted efforts by these accused persons in helping him, he did not follow the laid down procedure but got all his supplies of vaccines from these same accused persons; they did not give him any receipts, he only signed the LPBs which are all in evidence before this court;
(g) These same accused persons advised him to be coming to them late and so he was reporting at 7 p.m. or thereafter.
This is with respect to the 2nd Head charge. The 7th Head of charge is similar in characteristics. It receives its legitimacy in Exh. 131, the statements of the statements of the 10th accused. It contains the following facts, namely that –
(a) that 3rd and 7th accused introduced to him, the idea of getting vaccines using the allocation made to Ogbemudia Farms Ltd, even though he never worked in Ogbemudia Farms before;
(b) he never obtained approval of PW 1 nor C.V.O., before obtaining the supplies of vaccines from the NVRI; his supplies were approved by the 3rd and 7th accused persons;
(c) with the assistance of the 3rd, 6th and 7th accused persons he used the names of:-
(i) James Jatto;
(ii) Joe Ilalokhon, to collect the vaccines on behalf of Ogbemudia Farm Ltd, the vaccines never got to Ogbemudia Farm Ltd; it was the 4th and 7th accused who supplied him with the vaccines.
(d) he made payment to the accused persons particularly to the 7th accused who gave him no receipts.
This brief analysis of Exhs. 130 and 131 clearly proves beyond any reasonable doubt that –
(a) both the 9th and 10th accused persons hardly obtained any formal approval from PW 1 or his deputy before obtaining vaccines from NVRI;
(b) the vaccines they obtained were approved and supplied to them by the 1st, 2nd, 3rd and 7th accused with respect to the 2nd Head of Charge; and 3rd, 4th, 6th and 7th accused with respect to the 7th Head of charge.
The accused persons were asked if there was any reasons why they 9th and 10th accused should lie against them. They answered that there was no reason. They were represented by counsel.
In the circumstances, I have no hesitation in coming into the conclusion that the two Heads of charges have been proved, beyond any reasonable doubt as follows:
(a) the 2nd Head of charge is proved against the 1st, 2nd, 3rd, 7th and 9th accused persons;
(b) the 7th Head of charge is proved against the 3rd, 4th, 6th, 7th and 10th accused persons.
Accordingly, I hereby convict them as charged.
1st Head of charge:
The first Head of charge is preferred against –
(a) 1st accused;
(b) 2nd accused;
(c) 3rd accused;
(d) 4th accused;
(e) 5th accused;
(f) 6th accused; and
(g) 7th accused.
They are alleged to have committed criminal breach of trust contrary to Section 315 of the Penal Code. The 7 accused persons are store-keepers in the service of NVRI. They were entrusted with vaccines for sale to various customers with the approval of PW 1. They approved and supplied the vaccines to the 9th and 10th accused persons who purportedly were acting on behalf of the Delco Farms Ltd and Ogbemudia Farms; they used some fictitious names to obtain the vaccines.
They knew that the 8th and 10th accused persons were not in the service of Delco and Ogbemudia Farms, respectively. They therefore had every reason to know and they knew that the vaccines would not reach their supposed destinations. Payments for those drugs were made not in the accounts section of the NVRI but were made to these same accused persons who did not give any receipts for the purchases. The amount involved in the deal was estimated at N137, 310.95. Exhs. 130 and 131 contain the full details of the shady deals involving the dishonest misappropriation by the accused persons of the proceeds of the sale of the vaccines entrusted to them.
I am therefore, satisfied that the 1st Head of charge has been proved against the 1st to 7th accused persons. They are hereby convicted as charged.”
It is manifest from the above passage particularly the italicised words that the conviction of the appellants and others were anchored on Exhibits 130 and 131.
These exhibits 130 and 131 are the confessional statements of the 9th and 10th accused persons which implicated the appellants and others. The issue that calls for consideration is whether an accused person can be convicted solely on the statement or confessional statement of a co-accused to the police which the former did not adopt? I think not because Section 27(3) of the Evidence Act, Cap 112 Laws of the Federation 1990 prohibits that. The Section reads:
“(3) Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.”
A man’s confession is only evidence against him and not against his accomplices: R. v. Ajani & Others (1936)3 W.A.C.A. 3. A confessional statement of a co-accused is no evidence against an accused person unless the latter has adopted the statement either by words or conduct: Evbuomwan v. Commissioner of Police (1961) WNLR 257.
In the more recent case of Danlami Ozaki & Anor v. State (1990) 1 NWLR (Pt. 124) 92, the Supreme Court per Obaseki JSC in discussing the nature of the confessional statement of a co-accused on page 113 of the report said:
“It is an error in law to convict an accused on the statement of another accused to the police. It is a travesty of justice and a gross violation of all known rules of evidence…
It is settled law by statute and judicial decision that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement…
It is my opinion that an incriminating statement made even in the hearing of an accused defendant, even on an occasion which could reasonably be expected to call for some explanation from him is not evidence against him on his trial of the facts therein stated save in so far as he has accepted the statement and where the statement is used to found or secure a conviction, the conviction must on appeal be quashed.”
Applying the above principles to the facts of the case in hand; it is pertinent that since the only evidence on which the conviction of the appellant is founded is the confessional evidence of the 9th and 10th co-accused person incriminating the appellants but which they the appellants did not adopt but denied, their conviction is unjustified.
In the light of the foregoing, these appeals are meritorious and are hereby allowed. Accordingly the convictions and sentences of the appellants are set aside and in their place, I return a verdict of not guilty on each of the charges proffered against them. They are discharged and acquitted.
Other Citations: (1997)LCN/0268(CA)
