Mufutau Olaniyi Abiodun V. Federal Republic Of Nigeria (2008)

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HELEN MORONKEJI OGUNWUMIJU, J.C.A

This is an appeal against the judgment of the Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Tribunal Lagos Zone II, Lagos delivered by Hon. Justice M. A. Ope-Agbe as Chairman on 3rd July 1998. The Appellant was the 1st Accused on a two count charge. The first count was that he fraudulently granted unauthorised and unsecured credit facilities to several customers of Nigeria-Arab Bank Ltd Odeda Branch between 1992-1993 to the aggregate tune of N15,598.782.09 (Five Million, Five Hundred and Ninety Eight Thousand, Seven Hundred and Eighty-Two Naira, Nine kobo) contrary and punishable under S.18(1) (B) of the Banks and Other Financial Institutions Decree No. 25 of 1991 read in conjunction with S.3(1) (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994. The second count was that the Appellant with intent to mislead the management of the bank falsified, altered the current balances of the customers of the branch and the CBN account of the branch contrary and punishable under S. 435(2) of the Criminal Code read together with S. 3(1) (D) of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994.

At the trial, the prosecution called five witnesses and the Appellant called a witness DW2 and gave evidence as DW1.

The Appellant was discharged and acquitted on count 2 but convicted on count I, hence this appeal.

The Appellant’s counsel, Chief Imadegbelo SAN identified 2 issues for determination. They are stated below:-

(1) Whether the Tribunal had the jurisdiction to try and convict the Appellant.

(2) Whether the prosecution proved its case beyond reasonable doubt against the Appellant.

The Respondent’s counsel Mr. G.M. Oguntade also agreed to proffer arguments on the issues as formulated by the Appellant’s counsel.

However, the Respondent’s brief contained some objections against the grounds of appeal. The usual practice recognized by the rules of court for raising a preliminary objection to the competence of an appeal is by filing a notice of preliminary objection under Or. 10 r 1 of the Court of Appeal Rules 2007. The objection can then be moved before the hearing of the substantive appeal and the arguments of the Respondents by way of objection can be incorporated into the Respondent’s brief. See MIKPEN TIZA v. IORAKPEN BEGHA (2005) 5 SCNJ 168; DADA v. DOSUNMU (2006) 9 SCNJ 31.

However in this case since the Appellant has not objected to the method used by the Respondent, he is deemed to have waived any irregularity in bringing the objections to the grounds of appeal. The Respondent’s counsel challenged ground I as being incompetent being nebulous and utterly incomprehensible. Appellant’s counsel replied that once the issue of jurisdiction is raised, it must be considered by the Appellate Court. Both counsel cited NDUBA v. APPIO (1993) 5 NWLR Pt. 292 Pg.201. Mr. Oguntade also cited OBOMHENSE v. ERHAHON (1993) 7 NWLR Pt. 303 Pg. 37.

Ground I complained against is set out below:-

“The learned Trial Judge Tribunal has no jurisdiction to entertain the charge in view of its proceedings procedure that curtailed the Accused person’s rights vested by law at the time the alleged offence was committed”

I agree with Mr. Oguntade that generally no ground which is vague or general in terms and which discloses no reasonable ground of appeal should be permitted. See OBOMHENSE v. ERHAHON supra.

However, a close look at the above ground of appeal even though it is so patently inelegantly drafted and without particulars, discloses that there is a complaint against the jurisdiction of the Tribunal. Where a ground of appeal is defective in form provided there is a clear complaint it would not be struck out in the interest of justice. See AIGBOBAHI v. AIFUWA (2006) 2 SCNJ 61.