Alhaji Mohammed Mamman Vs Federal Republic Of Nigeria (2013)

LAWGLOBAL HUB Lead Judgment Report

BODE RHODES-VIVIOUR, J.S.C.

In an amended twelve count charge filed before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal, the appellant as accused person was charged on counts 1, 9, 10, 11, and 12. He was found guilty on counts 9 and 11 and sentenced on count 9 to N100,000 fine or 2 years imprisonment, and on count 11 to N5,000 fine or 6 months imprisonment.

Dissatisfied with the judgment he appealed. The appeal came before the Court of Appeal, Benin Division. The concluding paragraph of the judgment of that court reads:

“On the whole, for the reasons stated above by me, this appeal succeeds in part and it is hereby allowed appropriately. The conviction and sentence of the appellant pursuant to count 9 of the Amended Charge by the Tribunal are affirmed and confirmed respectively and accordingly. However, the appellant’s conviction and sentence on count 11 are quashed and I hereby order that the said count 11 against the appellant be struck out.”

This appeal is against that judgment. In accordance with the Rules of this court briefs were filed and exchanged. The appellant’s brief was deemed filed on the 15th of February 2012, while the respondent’s brief was deemed filed on the 29th of November 2012.

Learned counsel for the appellant formulated a sole issue for determination. It reads:

Was the Appellate Court right in upholding the interpretation of the Tribunal that section 18(1)(b) of BOFID creates two offences and thereby held appellant guilty for granting unauthorized advances or credit facility in contravention of Exhibit FB45.

On the other side of the fence learned counsel for the respondent formulated two issues for determination of this appeal. They are:

1. Whether the Court of Appeal was right in affirming the decision of the Failed Bank Tribunal in convicting and sentencing the 1st accused on count 9.
2. Whether count 9 predicated on section 18 (1) (b) of Banks and other Financial Institutions Decree No.25 of 1991 (otherwise referred to as BOFID) is bad for duplicity of charges.

I have examined the Record of Appeal and the briefs filed by counsel. The appellant was convicted because he granted unauthorized credit. To my mind the live issue for determination is whether the appellant did in fact grant unauthorized credit. Issue 1 presented by learned counsel for the respondent would easily resolve that issue and incidentally the only live issue. At the hearing of the appeal on the 29th of November 2012 learned counsel for the appellant Mrs. E. A. Uwaifo adopted the appellant brief deemed filed on the 15th of February 2012 and urged this court to allow the appeal.

Learned counsel for the respondent Dr. V.J.O. Azinge adopted the respondent’s brief deemed filed on the 29th of November 2012 and urged this court to dismiss the appeal.

ISSUE 1

Whether the Court of Appeal was right in affirming the decision of the Failed Banks Tribunal in convicting and sentencing the 1st accused person on count 9.

COUNT 9 reads:

“That you Mohammed Kabir MMAMMAN (m) between the 25th day of November, 1993 and 3rd December 1993 at Kano within the jurisdiction of this tribunal, whilst being Relief Manager of Allied Bank of Nigeria PLC, Kano main branch granted unauthorized advances or credit facilities totaling N61,075,000 (Sixty-one million, seventy five thousand Naira only) to your customer, one Alhaji Ibrahim Abubakar Mohammed (m), in violation of the Rules and Regulations of the Bank and thereby committed an offence contrary to Section 18 (1) (b) of the Banks and other Financial Institutions Decree No.25 of 1991”