Loben Investment Co-operative Multipurpose Society Limited V. Federal Republic Of Nigeria (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Lagos State, delivered on 20th July, 2017 by OYEFESO, J., (Mrs.), in Suit No: ID/2520C wherein the Appellant, Loben Multipurpose Society Limited, one Segun Oyekanmi and one Ade Bosede (at large), were arraigned on a 3-Count Charge of Conspiracy to steal, Stealing and Issuance of dishonoured cheques. The said offences being contrary to Sections 516 and 390(9) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003, and Section 1(1)(a) of the Dishonoured Cheque (Offences) Act Cap D11, Laws of the Federation. The learned trial judge, at the conclusion of trial convicted and sentenced the Appellant in respect of the three counts.

The Appellant being dissatisfied with the said judgment filed a Notice of Appeal on 11th of May, 2018 upon an application for extension of time to appeal granted on 10th of May, 2018. The parties thereafter exchanged their respective Briefs of Argument. Appellants brief dated and filed 14th of June, 2018 was settled by his counsel, Wale Adesokan SAN, Adepoju

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S.A Esq., and Ayodeji Ogunlana Esq., all of Adesokan & Co., in which the Appellant formulated five issues for determination in the appeal as follows:

1. Whether the learned trial judge wrongly rejected the air waybill and Exhibit D1 in evidence. (Grounds 9, 10 and 11)
2. Whether the finding of the learned trial Judge that the PW2 was not a member of 2nd Defendant but merely a Financial Investor was justified by the evidence adduced at the trial. (Ground 3 and 6)
3. Whether the evidence of the transactions between PW2 and the Defendants justified the finding by the lower Court of an intention by the Defendants to permanently deprive PW2 of her funds. (Ground 7)
4. Whether the dishonour of the N10 Million cheque issued in favour of the PW2 ought to form the basis of count three of the information in the light of the evidence that PW2 had received the alternative value for the same by December 2012. (Ground 8)
5. Whether the judgment of the lower Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced. (Grounds 1, 2, 4, 5 and 12)

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In the Respondents brief of Argument dated 28th of August, 2018, filed 29th of August, 2018 but deemed properly filed on 5th of December, 2018 and settled by I. O. Daramola, O. Adewunmi, A.M Ocholi and S.T Ola, four issues were formulated thus:

1. Whether the lower Court was not right in convicting the Appellant in respect of the offences he was convicted for at the lower Court and whether the prosecution proved its case beyond reasonable doubt. (Grounds 1, 2, 4, 5, 8 and 12)
2. Whether the learned trial judge wrongly rejected the airway bill and Exhibit D1 in evidence. (Grounds 9,10 and 11)
3. Whether the finding of the learned trial judge that PW2 was not a member of the 2nd Defendant but merely a Financial Investor was not justified by the evidence adduced at the trial. (Grounds 3 and 6)
4. Whether the evidence of the fraudulent Representations of the Appellant adduced at the lower Court does not justify the findings by the lower Court of an intention by the Defendants to permanently deprive the PW2 of her funds. (Ground 7)

SUBMISSIONS OF COUNSEL

Arguing the first issue in the Appellants brief, it is the submission of the Appellants counsel that the trial

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judges rejection of the Exhibit P36 represented by the waybill on the ground of improper certification amounts to the trial Court visiting the inadequacies of its Registry on the Appellant. Counsel relied on the Supreme Courts decision in TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (2011) 17 NWLR (Pt 1276) 240 at 262 paras A-E to submit that the appropriate order to make in such instance is for the trial Court to direct proper certification. Learned counsel further contended that the said rejection of the document that forms the bedrock of the defence of the appellant is a clear departure from Section 14 and 15 of the Evidence Act, 2011. Counsel also submitted that the subsequent rejection of the said airway bill after it has been re-certified and re-tendered is not in line with the decision of this Court in OKECHUKWU UZOMA V. VICTOR ASODIKE (2010) ALL FWLR (Pt 548) 853.

The Appellants counsel also contended the trial Courts rejection of a public document certified by EFCC for the use of the Appellants defence on the ground of it being a computer generated evidence without a certificate. Counsel submitted that the

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trial Court, having been properly supplied with the Supreme Court decision in KUBOR V. DICKSON (2012) LPELR-SC 369 at pages 48-50. paras F-E., discountenanced the Court decision to the effect that public documents are admissible ONLY by certified true copies. Counsel argued further on the trial Courts rejection of the said way bill, that it was not the contention of the parties at the trial, that the defendant has the duty to so affix the stamp CERTIFIED TRUE COPY on the document and was not so held by the lower Court, he relied on BROAD BANK OF NIG LTD V. OLAYIWOLA LAWAL (2005) 3 NWLR (Pt 912) 434 @ 457 paras B-C and NNPC V. AHAMBA (2009) 10 NWLR (Pt 1149) 266@277 to submit that the Court will not penalise a litigant for the mistake of the Courts registry. He further relied on the Supreme Courts decision in TABIK INVESTMENT LTD V. GUARANTY TRUST BANK PLC (Supra) per RHODES-VIVOUR, JSC, to submit further that decision of the trial Court rejecting the document for not been properly certified is rather harsh and does more technical Juctice than a substantial one in violation of the norm of Juctice delivery.