(2018) LPELR-43476(CA)

Transcription

1 GFL MARINE SERVICES LTD v. FRN CITATION: In the Court of Appeal In the Lagos Judicial Division Holden at Lagos ON THURSDAY, 11TH JANUARY, 2018 Suit No: CA/L/1045CB/2016 MOHAMMED LAWAL GARBA TIJJANI ABUBAKAR YARGATA BYENCHIT NIMPAR GFL MARINE SERVICES LTD FEDERAL REPUBLIC OF NIGERIA Before Their Lordships: Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) RATIO DECIDENDI - Respondent(s)

2 1. CRIMINAL LAW AND PROCEDURE - CRIMINAL LIABILITY/RESPONSIBILITY: Liability of a body corporate and its officers under Section 3 (1) of the Miscellaneous Offences Act "In addition, I refer parties to the decision of my learned brother IKYEGH, J.C.A in ADEDAMOLA OGUNGBAIBI vs FEDERAL REPUBLIC OF NIGERIA (Unreported Suit No. CA/L/147CB/2015) delivered on the 14th day of July, 2017 with similar facts as in this case. My Lord amongst other things held thus: "Section 3 (1) of the Miscellaneous Offences Act is for convenience copied below- 'Where an offence under this Act which has been committed by a body corporate is proved to have been committed with the connivance of or to be attributable to any neglect on the part of a director, or manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, he, as well as the body corporate where practicable, shall be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.' The phrase 'connive' and 'conspiracy' are one side of the same coin and entail working together with somebody or others to do something wrong or illegal (Oxford Advanced Learner's Dictionary, 7th Edition 308). Here it can be inferred that the part played by the appellant in the conspiracy network was to sign the charter party agreement, Exhibit N24, on behalf of Hepa Global Energy Ltd. for the latter's vessel to be used in storing the PMS product and dealing with it when the appellant should have known that the vessel did not have the lawful authority or the appropriate licence to store and deal with PMS product." Even though in this case there is no valid existing charter party agreement, the implication of Section 3(1) of the Miscellaneous Offences Act is that the conviction of the Appellant, attributable to the acts taken by the 4th and 5th accused as alter egos of the Appellant, makes both the Appellant as well as the 4th and 5th accused persons liable."per NIMPAR, J.C.A. (Pp. 6-8, Paras. D-A) - read in context

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4 YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Lagos delivered on the 26th day of April, 2016 wherein the Appellant (who was the 3rd accused at the lower Court) along 22 others were tried and found guilty of the 3 counts listed on the charge sheet as follows: COUNT ONE: MV LONG ISLAND, AFA Global Impex Services Limited, GFL Marine Services Ltd, Ala Atubokiki Ibanibo, Wole Ajayi, Adesunloye Alexander Fani Kayode, Captain Daniel Lebile, Michael Mgbanwa, Segun Ekundemi, Johnson Mashebinu, Ndidi Benjamin, Bright Nwaezuoke, Blessing Omoviye, Kayode Bibioye Ireti, Chuks Isiwepkweni, Friday Nchikpa, Peter Bayo, Ubom Amos, Zuopamo Embiowei, Olabamerun Owolemi, Adams Husseini, Ebisingha Timmy, Godwin Oputeh, Ebimie Norwigeh (Still at Large), Olabamerin Damilola Smaft (now at large) on or about the 2nd day of December, 2014 in Lagos within the jurisdiction of the Federal High Court conspired amongst yourselves to commit an offence to wit: dealing in petroleum product without lawful authority or appropriate licence and thereby committed an 1

5 offence contrary to Section 19(6) of the Miscellaneous Offences Act. Cap M17 Laws of the Federation of Nigeria 2004 and punishable under Section 17 of the same Act. COUNT TWO: MV LONG ISLAND, AFA Global Impex Services Limited, GFL Marine Services Ltd, Ala Atubokiki Ibanibo, Wole Ajayi, Adesunloye Alexander Fani Kayode, Captain Daniel Lebile, Michael Mgbanwa, Segun Ekundemi, Johnson Mashebinu, Ndidi Benjamin, Bright Nwaezuoke, Blessing Omoviye, Kayode Bibioye Ireti, Chuks Isiwepkweni, Friday Nchikpa, Peter Bayo, Ubom Amos, Zuopamo Embiowei, Olabamerun Owolemi, Adams Husseini, Ebisingha Timmy, Godwin Oputeh, Ebimie Norwigeh (Still at Large), Olabamerin Damilola Smart (now at large) on or about the 1st day of December, 2014 in Lagos within the jurisdiction of the Federal High Court without lawful authority or appropriate licence dealt with approximately 200 metric tons of petroleum product and thereby committed an offence punishable under Section 17 of the Miscellaneous Offences Act, Cap M17, Laws of the Federation of Nigeria COUNT THREE: MV LONG ISLAND, AFA Global Impex Services Limited, GFL Marine Services Ltd, Ala Atubokiki 2

6 Ibanibo, Wole Ajayi, Adesunloye Alexander Fani Kayode, Captain Daniel Lebile, Michael Mgbanwa, Segun Ekundemi, Johnson Mashebinu, Ndidi Benjamin, Bright Nwaezuoke, Blessing Omoviye, Kayode Bibioye Ireti, Chuks Isiwepkweni, Friday Nchikpa, Peter Bayo, Ubom Amos, Zuopamo Embiowei, Olabamerun Owolemi, Adams Husseini, Ebisingha Timmy, Godwin Oputeh, Ebimie Nonuigeh (Still at Large), Olabamerin Damilola Smart (now at large) on or about the 2nd day of December, 2014 within the jurisdiction of the Federal High Court without lawful authority or appropriate licence stored approximately 200metric tons of petroleum product and thereby committed an offence contrary to Section 4 of the Petroleum Act, Cap P10, Laws of the Federation of Nigeria 2004." Facts leading to this appeal are straight forward. The vessel (1st accused person) is owned by the Appellant, GFL Marine Services Ltd., a company incorporated as a logistics supply company as part of its fleet in achieving its aims and objects of its incorporation. The Appellant entered into a charter party agreement with the 2nd accused (another company, Afa Global Impex Services Ltd, a shipping company). The 3

7 agreement is at pages Vol. II of the Record of Appeal. The Appellant along several others were arrested by the Nigerian Navy for involving themselves in illegal activities, specifically, dealing in petroleum products without licence contrary to the Miscellaneous Offences Act. They were handed over to EFCC which investigated the matter and subsequently arraigned the Appellant along the 22 others before the lower Court. They pleaded not guilty and after due trial, the Court below found all of them guilty and sentenced the 4th -22nd accused persons to 2years imprisonment with an option of a fine of N200, on each count while the 1st accused person (the vessel) and its cargo was forfeited to the Federal Government. The 2nd accused person and the Appellant were sentenced to pay a fine of N200, each on Counts I, II and III. The decision aggrieved the Appellant thus this appeal. The Notice of Appeal was filed on the 3rd of May, 2016 setting out 5 grounds of appeal. The Appellant's Brief settled by L.M. Alozie Esq., is dated 8th May, 2017 filed on the 11th May, It distilled 2 issues for determination as follows: i. Whether the 4

8 Respondent proved the offences as charged in counts 1, 2 and 3 of the charge beyond reasonable doubt against the 1st Accused/Appellant. ii. Whether the order for the forfeiture of the 1st Accused/Appellant (MV Long Island) to the Federal Government was properly made. The Respondent filed its Brief dated 3rd October, 2017 and filed on the 9th October, 2017 and deemed properly filed on the 2/11/2017. It set out 2 issues for determination by the Court thus: a. Whether in the light of the Evidence of PW1, PW2, PW3 and PW4 and Exhibits P1-P60 tendered by the prosecution, it could be said that the prosecution proved the offences alleged against the Appellant beyond reasonable doubt. b. Whether in view of the facts and circumstances of this case, it can be said that the order of forfeiture made by the learned trial judge was not properly made. The Appellant in response to the Respondent's brief filed a Reply Brief filed on the 30th October, 2017 deemed on the 2/11/17. After a careful consideration of the Notice of Appeal, the Record of Appeal and the briefs of learned counsel on both sides, the Court shall adopt the 5

9 issues formulated by the Appellant for determination in this appeal. Doing so shall enable the Court to determine all aspects of the sole issue donated by the Appellant for determination herein. I have in Appeals CA/L/1045C/2016 considered all the above issues and resolved them there. I see no need to repeat same here as the arguments are the same both ways. Nothing new facts to warrant a different consideration, in fact, the learned counsel on both sides just copied arguments across the different appeals without specifically distinguishing the different Appellants. I will not follow them in just copying resolutions or their submissions when reliance can be placed on the judgments already delivered. In addition, I refer parties to the decision of my learned brother IKYEGH, J.C.A in ADEDAMOLA OGUNGBAIBI vs FEDERAL REPUBLIC OF NIGERIA (Unreported Suit No. CA/L/147CB/2015) delivered on the 14th day of July, 2017 with similar facts as in this case. My Lord amongst other things held thus: "Section 3 (1) of the Miscellaneous Offences Act is for convenience copied below- 'Where an offence under this Act which has been committed by a body 6

10 corporate is proved to have been committed with the connivance of or to be attributable to any neglect on the part of a director, or manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, he, as well as the body corporate where practicable, shall be deemed to be guilty of that offence, and shall be liable to be proceeded against and punished accordingly.' The phrase 'connive' and 'conspiracy' are one side of the same coin and entail working together with somebody or others to do something wrong or illegal (Oxford Advanced Learner's Dictionary, 7th Edition 308). Here it can be inferred that the part played by the appellant in the conspiracy network was to sign the charter party agreement, Exhibit N24, on behalf of Hepa Global Energy Ltd. for the latter's vessel to be used in storing the PMS product and dealing with it when the appellant should have known that the vessel did not have the lawful authority or the appropriate licence to store and deal with PMS product." Even though in this case there is no valid existing charter party agreement, the implication of Section 3(1) of the 7

11 Miscellaneous Offences Act is that the conviction of the Appellant, attributable to the acts taken by the 4th and 5th accused as alter egos of the Appellant, makes both the Appellant as well as the 4th and 5th accused persons liable. Having fully considered all the issues in that appeal and there being no new points raised in this appeal which have not been determined in the appeal CA/L/1045C/2016, the issues in this appeal are hereby resolved in the same terms set out in the judgment in the appeal of CA/L/1045C/2016. The appeal is unmeritorious and consequently fails. It is hereby dismissed. The judgment of the Federal High Court delivered on the 26th day of April, 2016 by HON. JUSTICE I. N. BUBA is hereby affirmed. I make no order as to cost. MOHAMMED LAWAL GARBA, J.C.A.: For reasons set out in the lead judgment written by my learned brother, Yargata Byenchit Nimpar JCA. I too find no merit in this appeal and dismiss it accordingly. TIJJANI ABUBAKAR, J.C.A.: l read before now the leading Judgment prepared and rendered by my lord and learned 8

12 Brother, NIMPAR, JCA. I am in agreement with the reasoning and conclusion and adopt the Judgment as my own. I also join in holding that Appellants appeal is devoid of a particle of merit and therefore deserves to be and is hereby dismissed by me. I also affirm the judgment of the lower Court delivered by BUBA J. on the 26th day of April,

13 Appearances: L. M. ALOZIE with him, H. O. OFORMA For Appellant(s) OYEDEPO ROTIMI For Respondent(s)