CORAM

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BRETT, JUSTICE, SUPREME COURT BAIRAMIAN, JUSTICE, SUPREME COURT COKER, JUSTICE, SUPREME COURT LEWIS,

HON. JUSTICE JOHN AFOLABI FABIYI    JUSTICE, SUPREME COURT

HON. JUSTICE SULEIMAN GALADIMA    JUSTICE, SUPREME COURT

HON. JUSTICE BODE RHODES-VIVOUR    JUSTICE, SUPREME COURT

HON. JUSTICE CLARA BATA OGUNBIYI    JUSTICE, SUPREME COURT

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PARTIES

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AMINU MUSA OYEBANJI   APPELLANTS

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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SUMMARY OF FACTS

An agreement was entered between Baminco Nigeria Limited and Associated Commodities and Foodstuff (Nig.) Limited sometime in 1986, wherein the Appellant who was the Managing Director of the former company was approached by the officers of the latter company for assistance in the importation of tyre, tubes and granulated sugar, as they could not secure foreign exchange to procure these goods. Consequently, a total sum of N1, 180,593.75k [One Million, One Hundred and Eighty Thousand, Five Hundred and Ninety Three Naira, Seventy-Five Kobo) was paid in several installments to the Appellant. A letter of credit was issued in favour of the Appellant by the Nigerian Merchant Bank which expired on the 10th day of April, 1987, and the letter of Credit was never renewed. After repeated demands for a refund of the money which the Appellant ignored, a report was lodged with the police which culminated into the Appellant’s arraignment before the Oyo State High Court lbadan. The trial court found him guilty of stealing the sum of N1, 273,093.75 contrary to and punishable under section 390 (9) of the Criminal Code, Cap 30 VOL. ll Laws of Oyo State of Nigeria, 1978. Displeased by the decision of the trial court, the Appellant appealed to the Court of Appeal, Ibadan Judicial Division where the decision of the trial court was affirmed. Further displeased, the Appellant has appealed to the Supreme Court.

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HELD

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Appeal Dismissed.

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ISSUES

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1. Whether the lifting of the veil of Baminco (Nig.) Limited by both the trial Court and the Court below as the plank for the conviction and sentence of the appellant was not right in the circumstances of this case?

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RATIONES DECIDENDI

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COMPANY – PERSONALITY OF A COMPANY

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“It is in Bolton Engineering Co. Ltd V. Graham & Sons (1957) I Q B 759 at 772 – 773 that DENNING L.J brought out clearly the human personification of a company where he stated thus:
“A company may, in many ways, be liken to a human body, It has brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the Centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company and control what it does. The state of mind of the company of those mangers is the state of mind of the company and is treated by law as such.” PER S. GALADIMA, J.S.C

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STEALING – INGREDIENTS THE PROSECUTION MUST PROVE TO SUSTAIN A CHARGE FOR STEALING.

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“To sustain a charge of stealing against the appellant, the prosecutor must prove:
i. That the things stolen is being capable of being stolen:
ii. That the accused has intension of permanently depriving the owner of the things stolen.
iii. That he was dishonest and
iv. That he had unlawfully appropriated the thing stolen to his own use. See Muhammed vs. The State (2000) FWLR (pt.30) 2623 at 2626.” PER S. GALADIMA, J.S.C

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PRINCIPLE OF “LIFTING THE VEIL OF INCORPORATION” –THE PRINCIPLE OF “LIFTING THE VEIL OF INCORPORATION” IS EXPEDIENT FOR THE PURPOSE OF DOING JUSTICE.

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“The principle of “Lifting the Veil of Incorporation” is where it becomes expedient to expose the individual, hiding behind the corporate entity, for purpose of doing justice.”PER C. B. OGUNBIYI, J.S.C

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LIFTING THE VEIL – WHERE THE CONDUCT OF A MEMBER OF A COMPANY IS CRIMINAL AND SUCH IS DONE IN THE NAME OF THE COMPANY, THE LAW WILL LIFT THE VEIL OF THE COMPANY.

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“Where the veil is lifted, the law will go behind the corporate entity so as to reach out to individual member of the company whose conduct or act is criminally reprehensible.”PER S. GALADIMA, J.S.C

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STEALING – DEFINITION OF STEALING- CRIMINAL CODE LAWS OF OYO STATE OF NIGERIA

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“(I) A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person, anything of capable of being stolen, is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is deemed to do so fraudulently if he does so with any of the following interests:
(a) an intent permanently to deprive the owner of the thing of it;
(b)an intent permanently deprive any person who has any special property in the thing of such property;
(c) an intent to use the thing as a pledge or security;
(d) an intent to part with it on a condition as to its return which the person taking or converting it may be unable to perform;
(e) an intent to deal with it in such a manner that it cannot be returned in the condition in which it was at the time of the taking or conversion;
(f) In the case of money, an intent to use it at the will of the person who takes or converts it, although he may intend afterwards to repay the amount to the owner.
(3) The taking or conversion may be fraudulent, although it is effected without secrecy or attempt at concealment.”
(4) In the case of conversion, it is immaterial whether the thing converted is taken for the purpose of conversion or whether it is at the time of the conversion in the possession of the person who converts it It is also immaterial that the person who converts the property is holder of a power of attorney for the disposition of it, or is authorised to dispose of the property.” PER S. GALADIMA, J.S.C

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PERSONALITY OF A COMPANY – A COMPANY HAS A DISTINCT PERSONALITY FROM THAT OF ITS MEMBERS.

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“The separation of the personality of a company and the members are to be maintained. That is to say a company is legally different from its subscribers and directors. See Trenco Ltd v. African Real Estate Ltd 1976 4 SC p. 9.”PER O. RHODES-VIVOUR, J.S.C.

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CASES CITED

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STATUTES REFERRED TO

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Criminal Code, Cap 30 VOL. II Laws of Oyo State of Nigeria, 1978Criminal Code Cap.38 VOL. II Laws of Oyo State 2000

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