Mr. Adeoti Adeyemi V. Commissioner Of Police (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MUSA DATTIJO MUHAMMAD, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the decision of the Zamfara State High Court sitting in its appellate jurisdiction delivered on the 22nd day of May, 2008 affirming the conviction but reducing the sentence imposed on the Appellant by the trial Chief Magistrate Court (III) Gusau, Zamfara State in case No.GS/341/C/2003. The facts of the case that brought about the appeal are summarized below.

The Appellant and Alhaji Buzu Mohammed PWIII the complainant, were good friends. It is the prosecution’s case that on loosing his job, the Appellant had requested PW III to assist him with his certificate of occupancy to enable him, the Appellant, obtain goods from a certain company. PWIII obliged the Appellant with his certificate of occupancy No.GS/P/0466 for same to be deposited with the company as security for the supply of omo and other related goods to the Appellant. Instead of depositing the certificate of occupancy with the particular company, it is the prosecution’s further case, that the Appellant fraudulently obtained a loan facility from the then Intercity Bank PLC Gusau using PW III’s certificate as collateral. Appellant’s failure to repay the loan resulted in a suit by the Bank against the Appellant and PWIII at the Zamfara State High Court for the recovery of the loan sum. On the 15th day of November 2002 PWIII lodged a complaint alleging that Appellant had cheated him. Appellant was arraigned before the Chief Magistrate Court Gusau and charged with the offences of cheating and forgery contrary to section 322 and 364 of the Penal Code respectively.

The prosecution called five witnesses and tendered a number of documents the crucial ones being Exhibit C, Application for consent to mortgage purportedly written by PWIII, Exhibit D the certified true copy of certificate of occupancy No GUS/P/0466, Exhibit F International Passport issued to PWIII, Exhibit G2 consent letter to Mortgage Ex. D, and Exhibit G5, the tripatrite deed of legal mortgage in respect of the property covered by Exhibit D and for the loan granted the Appellant.

The Appellant pleaded not guilty to the charges, testified in his defence and called two witnesses. Exhibits H and I, the writ of summons taken out by the Bank against the Appellant and the complainant and the valuation and survey report dated 04/10/97 in respect of the property covered by Exhibit D, the certificate of occupancy No GUS/P/0466, respectively, were tendered and admitted in the course of Appellant’s defence.

The learned trial Chief Magistrate in a well reasoned judgment dated 12th August 2007 found the case against the Appellant proved beyond reasonable doubt and convicted him of cheating contrary to Section 324 of the Penal Code. Appellant was sentenced to a fine of N 15,000 or three years imprisonment in default. He was also ordered to return to PWIII “Exhibit D”, his certificate of occupancy No.GUS/P/04/66.

Dissatisfied with the conviction and sentence, the Appellant appealed to the Zamfara State High Court which in an equally well considered decision dated 12th May 2008 affirmed the conviction and order of return of the certificate of occupancy to PWIII. The High Court however varied the N15,000 fine and the three years in default thereof with a N3,000 fine and two years imprisonment in default instead.

Further aggrieved by this decision, the Appellant has by a notice of appeal dated 12th August 2008, appealed against same to this court on four grounds.

Parties have filed and exchanged briefs of argument as required by the rules of this court. Appellant has at pages 4-5 of his brief distilled three issues from the four grounds in his notice as arising for the determination of the appeal.

The issues read:-

(I) Whether from the totality of the evidence in the printed record, the court below was right in affirming the conviction of the Appellant for the offence of cheating.

(II) Whether in the face of the various relevant documentary evidence particularly G 2 – G5 H and I, the court below was right in affirming the findings of fact of the trial court which was a result of improper evaluation and appraisal of the evidence adduced /by the prosecution.

(III) Whether on the evidence before the court, the court below was not wrong in holding that the signature of the complainant was fraudulently forged.

Learned Respondent counsel has adopted the issues distilled by the Appellant. It is glaring from these issues that the first issue which subsumes the two others is very sufficient in the determination of the appeal. The appeal will accordingly be determined on the basis of the first issue formulated by the Appellant.