By LawPavilion

CASE TITLE: MUTIAT OMOBOLA ADIO v. FEDERAL REPUBLIC OF NIGERIA (2021) LPELR-54517(CA)

JUDGMENT DATE: 2ND JUNE, 2021

JUSTICES: JIMI OLUKAYODE BADA JCA

UGOCHUKWU ANTHONY OGAKWU JCA

FOLASADE AYODEJI OJO JCA

PRACTICE AREA: Criminal Law and Procedure – Offence of Stealing

FACTS:

Mutiat Omobola Adio (Appellant) who was in the employment of the Oyo State Judiciary as Deputy Chief Registrar was arraigned before the Oyo State High Court on a one count charge of stealing. ​

The Respondent as Prosecution made a case that sometimes in February, 2008, the Oyo State High Court Judiciary Co-operative Society applied for loan facilities from Guaranty Trust Bank PLC. and consequent upon which a total sum of Ninety Million Naira was granted and disbursed in two tranches of Forty Million Naira and Fifty Million Naira respectively. The loan was to be disbursed to members of the Society. It was alleged by the prosecution that the Appellant who was one of the signatories to the account of the Cooperative Society got some of the beneficiaries to transfer some of the monies paid to them into her account. A total sum of Twenty-Five Million Naira was traced to her account. She agreed to refund the money but failed to do so. The matter was reported to the Economic and Financial Crimes Commission which eventually filed the criminal charge against her at the trial Court.

The case of the Appellant was that it was agreed by the Cooperative and the bank that the Cooperative should use its internal mechanism to disburse the loan which they did. The members were divided into groups and monies meant for each group was transferred directly to the account of the group head from the Cooperative Account who in turn transferred monies meant for other beneficiaries into the Appellant’s account. Those who transferred monies into the Appellant’s account knew the excess money paid into their account was meant for other beneficiaries.

In its judgment, the trial Court found the Appellant guilty as charged and sentenced her to five years’ imprisonment and ordered the Appellant to refund the sum of N20,915,913.21k to Guaranty Bank PLC. as restitution.

Aggrieved, the Appellant appealed to the Court of Appeal.

ISSUE(S) FOR DETERMINATION:

Whether by the state of facts in the charge and evidence before the trial Court, the Prosecution has proved all the necessary ingredients of the offence of stealing in the instant case against the Accused person to warrant the conviction of the Accused Person by the trial Court. Whether by the state of facts and documentary evidence before the trial Court, a loan deal consequent upon Banker-Customer relationship can ripen to a criminal act of stealing; Whether it is not legally unsafe for a trial Court to convict an accused person based on Confessional Statements when such Confessional Statements had not passed through the furnace of test as laid down by established authorities and when same is at variance with the charge in issue. Whether the sentencing to 5-years imprisonment with no option of fine coupled with restitution with no consideration of the Allocutus of the Accused Person does not make the Sentence of the Accused Person harsh and unfair.

COUNSEL SUBMISSIONS:

Learned counsel for the Appellant submitted that the burden of proving the guilt of an accused person is always on the prosecution and does not shift and that the prosecution failed to prove that the Defendant fraudulently took or converted the money and thus, failed to prove the ingredients of stealing against the Appellant. He contended that the action of the Appellant was devoid of criminality and that she can only be liable if it is shown that she acted outside the mandate of the Cooperative which the Respondent failed to do. He finally submitted that although the Court can convict solely on the confessional statement of an accused once it is found to be true, direct and positive, the Appellant did not admit to the offence charged in her statement and that the trial Judge did not do a veracity test on the alleged confessional statement before convicting the Appellant on it.

Respondent’s Counsel conceded that an allegation of crime is proved beyond reasonable doubt when the prosecution has proved all the essential elements of the offence(s) alleged against the Defendant and that since the confession contained in the Appellant’s extra judicial statement is consistent with other ascertained facts, the trial Court was right to have convicted her on it. Learned counsel to the Respondent also submitted that by manipulating and inflating the loan requirement of the applicants, the Appellant induced the bank to part with more funds than was demanded by them. Finally, learned counsel submitted that the transaction between the Appellant and the victim which culminated into her prosecution was tainted with criminality even though predicated on a Banker/Customer relationship.

DECISION/HELD:

On the whole, the Court of Appeal allowed the appeal. Consequent upon this, the judgment of the trial Court was set aside. The sentence passed on the Appellant by the trial Court was quashed.

RATIOS:

BANKING LAW – BANKER-CUSTOMER RELATIONSHIP: Whether a customer can be accused of stealing money standing to his credit “The Law is that when a bank credits the current account of its customer with some money the banker becomes the debtor to the customer in such sum. Conversely, when a banker debits the current account of its customer, the customer becomes a debtor to the bank in that sum so debited. When a customer’s account is in credit with a bank, the bank is indebted to the customer to the extent of the credit balance and the money standing to his credit belongs to him and not the bank. He cannot be accused of stealing the money standing to his credit. See YESUFU VS. AFRICAN CONTINENTAL BANK LTD. (1981) 1 SC 74; ALLIED BANK NIGERIA LIMITED VS. AKUBUEZE (1997) 6 NWLR (PT. 509); UBA VS. UNION BANK OF NIGERIA PLC. (1995) 7 NWLR (PT. 405) 72 and EKPENYONG VS. THE STATE (1967) 1 ALL NLR 285…” Per OJO, J.C.A.

BANKING LAW – BANKING BUSINESS: Position of the law as regards a bank who insists and accepts a domiciliation arrangement “The Law is that a bank who insists and accepts a domiciliation arrangement reduces its risk and has assurance that a third party who has agreed to domicile the payment due to a customer with the customers bank will pay the money directly to the bank. SeeA.T.S.& SONS VS. BEN ELECTRONICS CO. NIGERIA LIMITED (2018) 17 NWLR (PT. 1647) 1; BARBEDOS VENTURES LTD. VS. FIRST BANK OF NIGERIA PLC. (2018) 4 NWLR (PT. 1609) 241; PETER TIWELL (NIG.) LTD. VS. INLAND BANK OF NIGEIRA LTD. (1997) 3 NWLR (PT. 494) 408; JULIUS BERGER (NIG.) PLC. VS. TOKI RAINBOW COMMUNITY BANK LTD. (2019) 5 NWLR (PT. 1665) 219.” Per OJO, J.C.A.

BANKING LAW – LOAN: Status of an application for the grant of a loan or overdraft facility “… In OMEGA BANK NIGERIA PLC VS. O.B.C. LTD. (2005) 8 NWLR (PT. 928) 547 AT 583 PARAS C-E, the Supreme Court in determining the status of an application for the grant of a loan or overdraft facility held per Tobi JSC as follows:

“Let me quickly examine the Exhibits and I will do so seriatim. Exhibit P5 is the application for the facility made by the Plaintiff. It does not appear that the Court of Appeal dealt specifically with Exhibit P5. Learned Senior Advocate for the Respondent submitted that the application in Exhibit P5 was approved vide Exhibit P6. I entirely agree with the submission of learned Senior Advocate for the Appellant that Exhibit P5 cannot be an offer but at best, an invitation to treat. I say so because, the application is a mere declaration of willingness to enter into negotiation with a view to entering into a contract. See ORIENT BANK OF NIGERIA PLC VS. BILANTE INTERNATIONAL LIMITED (1997) 8 NWLR (PT. 515) 37.” Per OJO, J.C.A.

EVIDENCE – BURDEN OF PROOF/STANDARD OF PROOF: Burden on the prosecution to prove the charge alleging stealing of a particular amount “In ONAGORUWA VS. STATE (1993) 7 NWLR (PT. 303) 49. His lordship Niki Tobi, JCA (as he then was) at page 93 paras. D – F held thus.

“If all the responsibility of the prosecution is simply to prove part of the money stolen in a single unbroken charge is basis for conviction of an accused, I must say that the prosecution will have the best of two worlds if there are two worlds at all. In my humble view, the concept of criminal jurisprudence and criminality, in the context of apportionment of guilt, is stricter than the way learned counsel has put it. An offence committed in an exact human conduct and afortiori, stealing a particular amount. Therefore, if an accused is charged with stealing a particular amount or named amount the prosecution must stand or fall by proving the particular amount or by failing to prove same, respectively. The legal position is as exact as that. A contrary position will not only be oppressive to the accused but will certainly run against the provision of

Section 33(5) of the Constitution of the Federal Republic of Nigeria, 1979, where the accused is presumed innocent until he is proved guilty. How can an accused be proved guilty if evidence is not led on the exact amount of money stolen in an indivisible charge such as the one the Appellant faced. That will be tantamount to reversing justice and we, in this Court cannot be a party to such reversion.” Per OJO, J.C.A.

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