DEALING WITH PETROLEUM PRODUCTS WITHOUT LICENSE IS AN OFFENCE

 

CASE TITLE: DANJUMA V. FRN (2018) LPELR-45194(CA)

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

HEADING: DEALING WITH PETROLEUM PRODUCTS WITHOUT LICENSE IS AN OFFENCE

LEAD JUDGMENT: MUDASHIRU NASIRU ONIYANGI, J.C.A.

SUMMARY OF JUDGMENT

INTRODUCTION:

This appeal borders on the offence of dealing with petroleum products without license.

FACTS:

This appeal is against the judgment of the Federal High Court Asaba Judicial Division, holding in Asaba Delta State delivered on 19th day of February 2016 in charge FHC/ASB/5C/2014.

The fact that led to the arrest and subsequent arraignment of the Appellant is as follows. On the 26th day of September 2013 at about 10.12 hours one Nelson Ashubudike and his team of the intelligence Department of the Nigeria Security and Civil Defence Corps arrested the Appellant and one SHAIBU OGBAGE at Chipet Filling Station along Asaba Benin express way while discharging petroleum product suspected to be illegally possessed. The Appellant was subsequently arraigned with the other suspect before the Federal High Court Asaba on an initial three counts charge. The Appellant pleaded not guilty to the counts. The three counts charge was amended and an amended charge dated 27/2/2012 was filed. He pleaded not guilty to the three counts charge. This charge was again amended and the amended charge dated 2nd April 2014 was filed charging the Appellant for the offence of dealing with petroleum products without license.

On the 21st May 2014, the Appellant again pleaded not guilty to the amended three counts charge. Thereafter the matter went through a full trial and in the end, the learned trial Judge in his considered judgment discharged and acquitted the Appellant of count one. The Appellant was found guilty and convicted of counts 2 and 3. The Appellant was sentenced to 5 years imprisonment in hard labour or a fine of N2000,000.00 (Two Million Naira Only) in respect of count 2. For count 3, the Appellant was sentenced to 5 years imprisonment in hard labour with no option of fine. The sentences are to run concurrently. 

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES:

The Court determined the appeal on the issue raised by the Appellant and couched as follows:

(a) Whether the trial Court was right to hold that the Appellant (Accused Person) dealt with petroleum product on or about 25th September, 2013 without lawful authority and appropriate license in view of the unambiguous content of Exhibits DF1 and DF2 and the wordings of the charge in count 2 respectively. 

(b) Whether the trial Court properly considered and evaluated the defence of an agent to a known principal as set up by the Appellant before arriving at the conviction and sentencing of the Appellant. 

(c) Whether the trial Court rightly relied on Section 55(2) of the Evidence Act (2011) in admitting Exhibit G. through the PW2 an officer of the Nigerian Security and Civil Defence Corps (NSCDC), Mr. John Odu. If the answered above is no, whether the trial Court’s reliance on the said Exhibit G to convict the Appellant (Accused Person) with dealing on adulterated petroleum product does not occasion miscarriage of justice. 

(d) Whether the judgment of the trial Court was not against the weight of evidence adduced before the Court 

DECISION/HELD:

On the whole, the Court found merit in the appeal and accordingly allowed same. The judgment of the Federal High Court, Asaba Judicial Division, in charge No.FHC/ASB/5C/2014 delivered on 19th day of February 2016 was set aside.  The conviction and sentence of the Appellant was thereby quashed. The Court ordered that the Appellant should be set free forthwith.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF DEALING WITH PETROLEUM PRODUCTS WITHOUT LICENSE – Principles guiding the Court in convicting an accused for the offence of dealing with petroleum products without license

“In the light of the foregoing arguments for and against, the question that readily come to mind is whether or not the Appellant was tried and convicted of an offence not known to law and whether the Appellant has the requisite license to deal in petroleum product. To provide answer to the first segment of the question, both the law under which the Appellant was tried and convicted in count two and the amended charge (count 2) dated 2/4/14 has to be examined. The second amended charge dated 2nd April 2014 which the Appellant was tried, convicted and sentenced in count 2 can be found on page 52 of the record. The plea of the Appellant was taken on 21st May 2014. See page 99 of the record. I hereinunder reproduce count 2 of the amended charge dated 2nd April 2014 to which the Appellant pleaded not guilty, convicted and sentenced. COUNT 2: “That you MUSA DANJUMA (M), SHAIBU OGBAGE (M) on or about 25th September, 2013 at about 17:30 hours at Okwe in Oshimili South Local Government Area of Delta State within the jurisdiction of this Honourable Court did deal in petroleum product and loaded in a truck with Registration No: XR 652 ENU which conveyed 33000 liters of the product without appropriate waybill and license, thereby committed an offence contrary to and punishable under Section 1(17) of the Miscellaneous Offences Act Cap. M17 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007. I hereinunder reproduce Section 1(17) of the Miscellaneous Offences Act, Cap. M17 of the Revised Edition (Laws of Federation of Nigeria) 2007. S. 1(17) “Any person who without lawful authority or appropriate license:- (a) Imports, exports, sell or offer for sale, distribution or otherwise deals with or in any crude oil, petroleum product in Nigeria.” (b) Does any act for which license is required under the petroleum Act shall be guilty of an offence”. A quick look at count two of the charge suggest that the charge alleged that the Appellant was dealing in petroleum product without appropriate waybill and license. Also, upon a sober reading of S. 1(17) of the Miscellaneous Offences Act, it is obvious that the law is against dealing without lawful authority or appropriate license.” ?In my view, the count two is alleging dealing in petroleum product without waybill and license. Whereas the law is targeted against dealing in petroleum product without lawful authority or appropriate license. It is crystal clear and without any ambiguity that the law is basically against dealing in petroleum product without lawful authority or appropriate license. By this a person can only deal in petroleum product if he has the lawful authority to so do or that he is licensed to deal in the product. The law for all intent and purposes is not talking about waybill but appropriate license. This therefore suggest that the count 2 of the amended charge and to which the Appellant pleaded not guilty is not captured in S. 1(17) of the miscellaneous offence Act. What I am saying is that the issue of waybill is not one of the acts contemplated under S.1(17) of the Miscellaneous Offences Act. The pertinent question is whether or not the Appellant is misled by such error. In my view the error here only provided an additional request i.e. absence of waybill. But in the same charge the purport of the charge which is dealing in petroleum product without license or authority is well captured. That is to say that the error does not prejudice the defence or interest of the Appellant. See the finding and conclusion of the Court on page 178 lines 7-13 of the record. Therefore it will not in my view, be sufficient to grant an order quashing the conviction of the Appellant. See the old case of MGBEMENE V. INSPECTOR GENERAL OF POLICE (1963) 1 ALL NCR. 321; OGBODU V. THE STATE (1987) 2 NWLR (Pt.54) 20; EWHARIEME & ORS V. THE STATE (1985) 11 SC. 174. However, this is not to say that where this Court is of the view that the error is sufficient to prejudice the interest of the Appellant it will not hesitate to intervene and make appropriate order in the circumstance. Having said this, the next question is whether or not the Appellant was dealing in petroleum product without license. The finding of the learned trial Judge is that the Appellant was dealing in petroleum product without license. This finding of the Court is based on the evidence of PW1 and PW2 called by the prosecution. The Appellant in his defence called DW1, Peter Chinedu, the Managing Director of Chipet International and Chipet Pure Energy Limited. (See his testimony on pages 140 -146 of the record). He posited that he has the authority and license to deal in petroleum product. Further to this he affirmed that the Appellant is his employee. That is to say that he is the employer of the Appellant and that he was on duty discharging petroleum product of the company at the company’s petrol station when he was arrested. Through this witness Exhibit DF1 and DF2 were tendered and admitted amongst others as the license issued to the company by the Federal Government authorising the company Chipet International Company to deal in petroleum product. The learned trial Judge rejected this piece of evidence after finding that the license does not cover the year 2013 as against the claim of the Appellant and DW1 that the company is duly licensed to deal on petroleum product. The question is whether or not the Appellant has the authority and license to deal in the product? In order to determine this the testimony of Peter Chinedu, Managing Director Chipet International DW1, has to be examined. (See pages 140 – 146 of the record.) In this regard and for purposes of better understanding I reproduce part of his deposition on oath hereinunder. “—–I am Peter Chinedu the Managing Director of Chipet International and Chipet Pure Energy Limited. I am an independent petroleum marketer. I live at No. 16 Peter Chinedu crescent, Federal Housing Estate, Onitsha. I know the accused person. One is my driver and the other a conductor. Chipet deals in petroleum products. In September, 2013 we have license to deal in the product. OKOYE: I seek to tender the license. UBOYI: I have no objection COURT: The petroleum storage and sale license is hereby admitted and marked Exhibit DF1. DW1: I have renewed it. I was issued with a receipt for the renewal. OKOYE: I seek to tender the receipt. UBOYI: I have no objection. COURT: The receipt is hereby admitted and marked as Exhibit DF2.—–” The foregoing shows that DW1, is the employer of the Appellant and that the Appellant was working for him at the time when they were arrested at Chipet petrol station. Let me quickly deal with the relationship of the Appellant and DW1, the managing director of Chipet. From that undisputed and uncontradicted evidence, it is clear that at the time the Appellant was arrested, he was working for a disclosed principal. Chipet International Ltd. and to which DW1 is the managing director. It is trite that where an agent is acting on behalf of a known and disclosed principal he incurred no liability. This is because acts done by the agent is the act of the principal. See the following cases: ANYAORAH V. ANYAORAH (2001) 7 NWLR (Pt. 711) 158; ESSANG V. AUREOL PLASTICS LTD. (2002) 17 NWLR (Pt. 795) 155; AMADIUME V. IBOK (2006) 6 NWLR (Pt. 975) 158. The latin maxim on this is “qui facit per allium, facit per se asam facere indepur” meaning: “he who does an act through another is deemed in law to do it himself”. For the foregoing principle of law and considering the evidence of the Appellant before the trial Court that he is an employee of the Chipet International Co. to which DW1 is the Managing Director, the Appellant in the circumstance ought not be arraigned before any Court after having disclosed his principal and the principal boldly came out to accept the act of the Appellant and that he was working for him. I leave this for now and would revisit it at the appropriate time in this judgment. Now back to the license and receipt tendered as Exhibits DF1 and DF2. A careful look at the Exhibit clearly shows that the Appellant’s employer were licensed to deal in petroleum product and that they have a current and valid and subsisting license to deal in the product. In my view, this is what the Court considered in determining count one and which led to the finding and conclusion of the learned trial Judge discharging and acquitting the Appellant on count one. This ordinarily ought to have been applied to count 2 (two). Rather than doing this the Court made a ‘U’ turn, found the Appellant guilty, convicted and sentenced. A Court should not approbate and reprobate at the same time. See FEDERAL REPUBLIC OF NIGERIA V. IWEKA (2011) 11-12 SC. (Pt. 1) 191. The totality of the foregoing suggest that the learned trial Judge did not give the desired and proper consideration to the evidence of the Appellant, DW1 and Exhibit DF1 and DF2 respectively. If he has done that, he would have come to one and only conclusion that it is not the Appellant that was dealing in petroleum product but Chipet International Company Ltd and Mr. Peter Chinedu DW1, the alter ego of the company. The Appellant is a mere agent of a disclosed principal who at the time of arrest of the Appellant has the appropriate current license (Exhibit DF1 and DF2) to deal in petroleum product.”

Per MUDASHIRU NASIRU ONIYANGI ,J.C.A ( Pp. 13-21, paras. E-F )

 

• EVIDENCE – EVALUATION OF EVIDENCE – Duty of trial judge to evaluate evidence and nature of the duty of an appellate court in reviewing such evaluation on appeal

“It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraise the fact, it is not the business of the Appellate Court to substitute its own views for the view of the trial Court. The Court will only interfere where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its finding are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court. See the case of OBA ADEBAJO MAFIMISEBI & ANOR V. PRINCE MACAULAY EHUWA & ORS. NSCQLR Vol. 29 (2007) 410 at 417. Further to the foregoing, where the complaint centers on assessment or consideration of documentary evidence tendered in the proceeding or non evaluation of the documents tendered the Appellate Court is not foreclosed.”

Per MUDASHIRU NASIRU ONIYANGI ,J.C.A ( Pp. 23-24, para. E )