Bolanle Abeke Vs The State (2007)

LAWGLOBAL HUB Lead Judgment Report

A. OGUNTADE, J.S.C

The appellant, Bolanle Abeke, was charged on an information, before the Abeokuta High Court of Ogun State for an offence under Section 1 (1)(b) of the Dishonoured Cheques (Offences) Act No.44 of 1977. It was alleged that the appellant obtained a credit of N3,300.00 (three thousand, three hundred Naira) from one Ganiyu Ajayi by means of Cheque No. UDB 130480, Nigeria-Arab Bank Nigeria Ltd., Odeda and, the said cheque when presented on due date was dishonoured on the ground that the appellant had not sufficient funds in her account to cover the face value of the said cheque.The offence was tried by Popoola J. The prosecution called seven witnesses. The appellant testified in her own defence and called three other witnesses. On 11/10/95, Popoola J. in his well-written and comprehensive judgment found the appellant guilty as charged.

The appellant was sentenced to a two-year term of imprisonment. Dissatisfied with her conviction, the appellant brought an appeal before the Court of Appeal, Ibadan (hereinafter reflected to as ‘the court below’). The court below (coram: Roland, Ibiyeye and Tahai JJ.C.A.) in a unanimous judgment on 04/07/2005 dismissed the appellant’s appeal and affirmed the conviction of and the sentence’ imposed by the trial court. Still dissatisfied, the appellant has come before this court on a final appeal.In the appellant’s brief filed. appellant’s counsel has formulated a solitary issue for determination in the appeal. The said issue reads:-

“Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial court that the prosecution had proved its case beyond reasonable doubt in the circumstance of this case.”

The respondent in its brief agreed with the issue formulated for determination by the appellant. It is necessary to examine the case made against the appellant at the trial court by the prosecution in the consideration of the only issue for determination in this appeal. The case may be summarized thus: On 4/9/81, the appellant sought from P.W.2, a loan of N2,000.00. She wanted to apply the money to execute a contract awarded to her by the Ogun State Ministry of Agriculture.P.W.2 gave the appellant the loan sought from him. A week later. The appellant approached P.W.2 for a further loan of N2,000.OO. P.W.2 gave the appellant N 1,300.00. He however requested that the transaction be documented. The appellant opted to give a post-dated cheque for the total sum of N3,300.00 covering both loans. Being an illiterate, the appellant brought out her cheque book which she requested the P.W.2 to write up for her evidencing the loan grant. The P.W.2 wrote the cheque which the appellant signed and rubber-stamped. The wife of P.W.2 had been present on the two occasions when the appellant came seeking the loan. She testified as P.W.3. The cheque leaf was post-dated to 29/9/81. On that date P.W.2 paid the cheque into his account. The cheque exhibit ‘B’ was returned unpaid. The appellant, notwithstanding the pressure brought on her by P.W.2 to pay the money, did not do so. Rather. she sent emissaries to P.W.2 pleading for time. She wrote exhibits A-A I appealing to P.W.2.

In 1989, some eight years after the loan was granted to the appellant, P.W.2 learnt that the Ogun State Ministry of Agriculture had paid the appellant on the contract. Still, the appellant did not pay up. In frustration, the P.W.2 brought a suit against the appellant for the recovery of the sum of N3,300.00. The appellant, in reaction to the suit by P.W.2, reported to the police that P.W.2 had stolen her cheque for N2,000.00. PW.2 was arrested and prosecuted. P.W.2 was discharged and acquitted. The appellant was thereafter charged for issuing a dud cheque. I stated earlier that the wife of P.W.2 testified as PW.3 and gave evidence as to the events which she had witnessed leading to the issuance of the cheque leaf exhibit ‘B’. P.W4 was a handwriting analyst, who upon a comparison of the specimen signature of the appellant with the signature on the cheque leaf exhibit ‘B’ stated that exhibit ‘B’ in fact bore the signature of the appellant. P.W.S was the accountant at the Nigeria Arab Bank, Odeda where the appellant kept an account. He tendered the statement of account of the appellant for the period 6/2/81 – 29/12/81 as Exhibit ‘H’. Exhibit ‘H’ shows that appellant’s account with the Odeda branch of Nigeria Arab Bank was in the red to the tune of N494.80 with effect from 18/9/81 to 29/ 9/81 when exhibit ‘B’ issued by the appellant was lodged by P.W.2. into his account. PWs. 6 and 7 were the Investigating Police Officers.

The appellant testified in her own defence. She denied issuing the cheque exhibit ‘B’ to P.W.2. She admitted that PW.2 granted her a loan of N1,500.00 out of which she paid back N500.00. She said further that her cheque book was lost in 1981 and she reported the loss to her bank in writing in 1982. In reacting to the solitary issue for determination in this appeal, it is important to bear in mind the findings of fact made by the trial court. This is against the background that, when evidence is found to be incredible by the court of trial, such evidence becomes incapable of sustaining a defence built on it. At pages 44 to 46 of the record, the trial court held:-

“There is evidence before me that the accused signed exhibit B. P.WA testified here as having examined Exhibit B, he compared the signature thereon with the handwriting and signature of exhibit A (A letter of apology handwritten by the accused to P.W.2) as well as exhibits D – DS with comparative table shown on exhibit E which vividly revealed features of similarity and came to the conclusion that the writer of exhibit A (i.e. the accused) is the same as the writer of exhibits D – D5 as well as the signature on exhibit B – (the offending cheque) which he said was even obvious to a lay man to see and compare. I believe the evidence of PW.4. He has done a good job and the explanation even under devastating cross-examination was clear and straight forward – maintaining a steady stand and unshaken. This in turn confirmed PW.2 whose evidence I also accept and believe.

It is noted that this PW.4 – the expert was not contradicted, and was not cross-examined as to the accused not signing exhibit B, and to me his credibility remains untainted due to failure to elicit any evidence adverse to the opinion of PW.4, which is a basis to believe the said PW.4 See: M. I. A. & sons Ltd. v. FHA (1991) 8 NWLR (Pt.209) 295, 298 HOLDING 7 p.313 paras. E – H.

Besides the evidence of the Handwriting Expert P.W.4, I have myself examined the signature on the said cheque – exhibit B, with the letter and signature on exhibit A – Letter hand written by the accused as well as the specimen signatures on exhibits D – D5 and the comparative able in exhibit A, B, D, E, thereon and have compared them as well as exhibit E with the disputed signature on exhibit B and I have formed my opinion that they were all written and signed by the accused, which I believe I have power to do, being an option open to me, assuming I am not bound by the evidence of the expert witness (PW.4) I am reinforced in this belief by the decision in Dr.Aina v. M. A. Jinadu & Anor. (1992) 4 NWLR (Pt.233) 91, 98 HOLDING 18p.107 paras. F – G – plus also the fact that the accused in one breath said she lodged a written report, she next said, oral report but, that exhibit L was issued to her in replacement. P.W.5 or D.W.4, her own witness, testified that exhibit L i.e. 104-010 series having nothing to do with Exhibits B, as ‘104’ series were meant for debtors – i.e. those on Overdraft and cheques issued thereunder could never go into the Current Account 101 -289 whereas the impression the accused gave, was that she was issued exhibit L when she reported the loss of exhibit B – which she later found in her house after 8 years. I hold the strong view also, that exhibit L having no connection or relevance with exhibit B, it is irrelevant in this case.

The accused admitted signing portions marked ‘B’ ‘D’ ‘E’ on exhibit E ,which incidentally are the signatures on exhibit A, exhibit B and exhibits D – D5 – what an irony – her sins have found her out. In Exhibit E the accused admitted not reporting any loss of any cheque leaf either to the Bank or the police but in her testimony she first said she replied in writing, later still, that it was orally. Exhibit E is inconsistent with her testimony. In cases like this, the trial court is entitled not only to reject the earlier extra judicial statement but also not to act upon the evidence in court- which will be treated as unreliable, and in the place of both the earlier statement and such evidence,

the court will instead rely on the evidence adduced by the prosecution, and the witness (i.e. the accused here) treated as unreliable – but both the statement and her testimony must be assessed and evaluated by the court together with other relevant evidence in order to reach a just decision – all or which I have done in this case. See: Egboghonome v. State (1993) 7 NWLR (Pt.306) 383 388-391 HOLDINGS 4,5,6 “The court below in its judgment at pages 71 to 72 of the record affirmed the findings of the trial court in these words:- “It is common ground that the appellant issued exhibit B in favour of the P.W.2. It is also common ground that exhibit B was returned to the P.W.2 (the drawer of exhibit B) unpaid. The implication of that was that the cheque issued in favour of the P.W.2 was dishonoured for reason of insufficiency of funds to the appellant’s credit.

No useful purpose will be served by considering the denial of the appellant as regards issuing exhibit B to the P.W.2. There is sumptuous evidence albeit uncontroversial that the appellant issued exhibit B. See Ferguson v. Commissioner For Works & Planning Lagos State (1999) 4 NWLR (Pt.638) 315 at 328: Chukwu v. Diala (1999) 6 NWLR (Pt.608) 674 at 681 and Boshali v. Allied Commercial Exporters Ltd. (1961) 2 SCNLR 322. It is trite that when evidence of a party to a suit is not debunked or challenged by the opposite party which had the opportunity to do so, the trial court or tribunal seized of the proceedings ought to accept and act on it. The wholeness of the appellant’s denial is amply supported by the evidence of the P.W.2, the P.W.3 and the PW.4 who are respectively the drawee of the dishonoured cheque, his wife and handwriting analyst who confirmed the fact of issuing exhibit Band that the signature on exhibit B was that of the appellant.”

Before us in this court, the main plank of the argument of appellant’s counsel was that exhibit ‘B’, the dishonored cheque, should not be viewed as a medium of payment by the appellant to P.W.2 but rather as merely a documentation of the loan transactions between PW.2 and the appellant. In other words, counsel argued that exhibit ‘B’ could not be regarded as being issued “to obtain credit”. At page 7 of the appellant’s brief, it was argued thus: