Recipient of security votes must account for it

IN THE COURT OF APPEAL
ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON FRIDAY THE 16TH DAY OF NOVEMBER, 2018

BEFORE THEIR LORDSHIPS

ABDU ABOKI – JUSTICE ,COURT OF APPEAL
ADAMU JAURO- JUSTICE, COURT OF APPEAL
EMMANUEL AKOMAYE AGIM- JUSTICE,COURT OF APPEAL

APPEAL No, CA/A/658c/ 2018

BETWEEN

REV. JOLLY TEVORU NYAME- APPELLANT

AND

FEDERAL REPUBLIC OF NIGERIA- RESPONDENT

JUDGMENT

Delivered by EMMANUEL AKOMAYE AGIM,JCA

This appeal was against the judgment of the High Court of the Federal Capital Territory at Abuja, in charge No FCT/ ABJ/CR/ 82/2007
convicting the appellant of 16 counts of Criminal breach of trust, nine counts of criminal misappropriation, one count of gratification and one count of accepting a valuable thing without consideration and sentencing him to varying custodial sentences, the longest of which is 14 years,the sentences which are without option of fine run concurrently. The appeal contains 35 grounds of appeal and raised 11 issues upon which it was determined. ISSUES 1.Whether the learned trial judge rightly assumed and exercised territorial jurisdiction and entertained the offences charged in Counts 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,17,
19,21,23 and 25 of the charge preferred against the Appellant. (Distilled from Ground1)

1. Whether the learned trial judge rightly assumed jurisdiction and entertained the offences charged in Counts 1,2,3,6,7,8,9,10,11,
   12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,
   27,28,39,30,31,32,33,343536,37,38,39,40 and 41of the charge and consequently convicted and sentenced the Appellant on counts
   1,2,3,6,7,8,9,10,11,12,13,14,15,16,17,18,19,
   20,,25,27,29,30,31,33 and 36 thereof when the Sections of the written law which created and defined the offences of criminal breach of trust and criminal misappropriation charged in the said Counts were not set out/ stated in the charge.(Distilled from Grounds 3 and 4).
2. Whither the learned trial judge was right when he held that the Appellant is a public servant by virtue of the provisions of Section
   10 of the Panel Code Act ,Part 10 the Schedule to the 1999 Constitution of the Federal Republic of Nigeria (as amended), Exhibit RR1 to RR3 (Defendants Code of Conduct Forms) and Exhibit SS (Zenith International Bank Ltd Account opening forms dated 1st August 2001) for the purpose of establishing one of the ingredients of the offences contained in Counts 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,
   20,21,22,23,24,25,26,27,28,39,30,31,33,and 36 of the information filed against the Appellant (Distilled from Ground 2)
3. Whether the learned trial judge was right when he relied on the Appellant’s claim of being a public servant in Exhibits SS (Zenith International Bank Ltd Account opening forms dated 1st August 2001) and a public officer in Exhibits RR1 to RR2 (Defendant’s Code of Conduct Form) and held that the Appellant is a public servant in arriving at the guilt,conviction and sentencing of the Appellant with respect to offences in counts 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,
   20,25,,27,28,39,30,31, 32,33 and 34 of the charge without having regards to the statutory definition of the Public Officer (Distilled from Ground 33)
4. Whether the Appellant stood at fair trial and consequently afforded a fair hearing, when the trial Court placed on him the burden of proving his innocence, contrary to the constitutional guaranteed presumption of innocence which ought to enure in his favour.(Distilled from Grounds 7, 8, 11, 15, 17, 24,32)
5. Having regard to the penal consequences of a criminal proceeding, the presumption of innocence which enures in favour of the accused person and the impartial role of judex, whether it was right for the learned trial Judge to admit himself to speculation and extraneous materials which did not form part of the Respondent’s case in convicting the Appellant. (Distilled from Grounds 6,9,10,12 &13)
   7.Whether the Respondent’s failure to call vital witnesses in proof of the allegations against the Appellant in Counts 1, 2, 3, 6, 7, & 8 of charge dated 13th July, 2007 did not render the Appellant’s conviction in respect of the said counts of offences unproved (Grounds 18 & 30)
6. Whether the lower Court’s reliance on Exhibits VV1 & VV2, being documentary hearsay, as well as the testimonies of Pw5 & PW 7, being oral hearsay, to convict the Appellant did not render the lower Court’s decision perverse. (Grounds 22,23 & 29)
7. Whether the learned trial judge was right in finding the Appellant guilty of the offences in counts 1,2 ,3,6,8,10,12, 14, 16, 18,20, 27 ,29,30,31 and 36, having regard to the evidence before the Court, Distilled from Grounds 5, 14 & 34)
8. Whether the learned trial Judge wrongly relied on evidence in finding the Appellant guilty of the offences in counts
   1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,
   20,25,,27,28,39,30,31, 33 and 36. (Distilled from Grounds 16, 19, 20, 2125,26,27,28 &31)
9. Whether by allowing himself to be overwhelmed by personal and sentimental reservations, the learned trial Judge judiciously and judicially exercised his discretionary power when he sentenced the Appellant to the maximum terms of imprisonment on every count of offence for which he was convicted.( Ground 35 in the Additional Notice of Appeal).

DECISION

I have calmly read and considered the arguments of both sides . The appellant argument that offences 1 to 17,19, 21, 23 and 25 occurred in Jalingo in Taraba State ,outside the territorial jurisdiction of the trial court is discountenanced because the Supreme Court had resolved same issue on appeal filed by the appellant on same matter. It is noteworthy that the notion that certain Public Funds meant to be used for the security of the State are not accounted for and therefore cannot to be stolen is not correct. Security votes being Government Funds to be used for the security of the State must be accounted for by the recipient .
The recipient accounts for it by showing that every bit of it was used for the purpose it was meant. In the face of the case of the prosecution that the appellant received such funds and diverted same to his personal use, it is no defence for the appellant to say that such funds are not accounted for, so cannot be stolen. Such a defence suggests that the appellant believed that as Governor, the Security Votes were his personal entitlement to be used as he pleased without any responsibility to explain how he used same and that since it is his entitlement, he cannot be said to have stolen same. This belief is completely wrong. ………If the recipient of such funds cannot account for the use of such funds for the purpose it was meant and has not returned same to the Government treasury, then that is a clear case of stealing of public funds.
In our country, Nigeria , there is a pervasive proclivity of public officers to regard or treat Security Votes given to them for the security of the State as their personal entitlement or funds, the expenditure of which they are not accountable to the government that gave them the funds to be used for the public purpose or the citizens for whose security it was meant.
It is glaring from the totality of the forgoing that the trial court’s conviction of the appellant for the offences in Counts 1,2,3,4,5,6,7,8,9,10,11,12,13,14,15,16,17,18,19,
20,25,,27,28,39,30,31, 33 and 36 was based on its belief of the prosecution’s evidence and disbelief of the defence evidence. By this appeal the appellant has invited this court to set aside the convictions on the ground that they are not justified by the evidence before the trial court.
I have held that the trial courts belief of the testimonies of the prosecution witnesses are supported by the evidence before it and that such belief is reasonable. Therefore this court cannot interfere with the trial Court’s belief of the prosecution’s evidence and disbelief of the defence evidence and the interferences of facts arising from such belief………
After convicting the appellant for the offences in counts1,2,3,4,5,6,7,8,9,10,11,12,13,14, 15,16,17,18,19,20,25,,27,28,39,30,31, 33 and 36 and after considering the allocutus of the appellant and before pronouncing the sentence for each offence ,the trial court stated thusly “I am morally outraged with the facts of this case. The citizens of Taraba State elected Reverend Jolly Tevoru Nyame ,a clergyman as Governor on three separate occasions which showed a consistent level of trust in him, Their expectations were so high and as a Reverend ,he must have been seen as an Epitome of Morality, piety Honesty and everything Good…….
This is the first case of its kind where a Governor is found to have committed such impunity . The court must therefore impose a sentence that would hopefully serve as a deterrent to such other public officers, who may be similarly inclined to deep their hands into public Till. Accordingly, this court would be failing in its responsibilities ,if it fails to throw the book at the defendant. Having found the defendant guilty as charged in regard to these counts of the offences under criminal breach of trust ,the court hereby sentenced the defendant, Rev. Jolly Tevoru Nyame to terms of imprisonment in each of these offences as follows. The above considerations of the trial court before it pronounced the sentences for each of the offences it found that the appellant committed substantially comply with the guiding principles prescribed in S. 311(2) and (3) of the Administration of Criminal Justice Act 2015. It is obvious that the trial court did not consider the appropriateness of non custodial sentence as an option to a custodial sentence as required by S.311(2)(c) of ACJA. The trial Court was right to have punished the commission of the offences if criminal breach of trust by Public servant or agent with imprisonment without consideration of the appropriateness of a fine as an option. It has no discretion to make such consideration because S.315 of the Panel Code that provide for the punishment of such an offence requires the trial court to impose both an imprisonment term and fine and does not give the court the discretion to choose to impose a term of imprison or fine but both imprisonment and fine……..
The trial court did not impose the additional punishment of fine it was bound by S.315 Panel Code Act to impose for criminal breach of trust . Accordingly, this court orders that in addition to the term of imprisonment imposed for each count of criminal breach of trust , the appellant shall pay fine of N100m for each of the offences in counts 1,2,6, fine of N50m for the offences in counts 10, 12,14, fine of N10m for each of offences in counts 16, 18,20,27,29,30,31and 33, fine of N5m for the offences in count 36. In the light if above issue No 11 was resolved in favour of the appellant in part.
On the whole the appeal fails, except as regard the sentences imposed by the trial court. Therefore the judgment of the High Court of the Federal Capital Territory in Criminal Case No FCT/ ABJ/ CR/ 82/2007delivered on 30/5/2018 by A.A.I.Banjoko J. is affirmed and upheld except with regards to the sentences imposed therein. The said sentences are set aside and replaced with the following sentences: Counts 1, 2, 6 twelve years imprisonment each and in addition fine of N100m each Count 8, twelve years imprisonment each and in addition fine of N50m ,counts 10, 12, 14, twelve years imprisonment each and in addition fine of N20m , Counts 16, 18, 20, 27, 29,30,31,33, twelve years imprisonment each and in addition fine of N10m each ,count 36 twelve years imprisonment and in addition fine of N5m .
While Count 3,7,9,11,13,15,17,19,21,23,25, one year nine months with no option of fine. Count 4 five years imprisonment and count 5 four years imprisonment without option of fine.
All sentences on each count to run concurrently.

Emmanuel Akomaye Agim
Justice, Court of Appeal

Counsel :
Ahmed Raji (SAN), with Adeola Adedipe Esq,Victor Okwudiri Esq, Peter Nwatu Esq, W.A. Adenran Esq, Abiola Olaitan Esq, Dolapo Kehinde Esq, for Appellant Rotimi Jacobs (SAN), with H.O.P. Ejiga ESq. for the Respondent. (Quote
“Security votes being Government Funds to be used for the security of the State must be accounted for by the recipient .”)