Olusegun Egunjobi V. Federal Republic Of Nigeria (2012)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C

This is an appeal against the judgment of the Court of Appeal, Calabar Division (‘the court below’ for short) delivered on 26th April, 2001. Therein, the appellant’s appeal against the judgment of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal holden at Calabar (‘the trial Tribunal’ for short) delivered on 24th March, 1999 was allowed in part as the appellant’s conviction in respect of counts 1 and 2 was upheld while he was discharged and acquitted in respect of counts 7 and 9 contained in the charge sheet.

For a proper appreciation of the issues canvassed in this appeal, it is apt to assemble the relevant facts with due emphasis on the appellant’s complaints in respect of his conviction and sentence in the stated counts 1 and 2.

The 2nd Accused/Appellant was on the 16th of November, 1999 arraigned with three others before the trial Tribunal. They were arraigned and tried together for various offences in a Nine (9) count charge. For the purpose of this appeal, the particulars of counts 1 and 2, which are of moment, read as follows:-

COUNT 1.:

That you Samuel B. Apata and you Olusegun Egunjobi, being the Branch Manager and the branch Accountant respectively of Nigeria-Arab Bank Limited (now Assurance Bank Limited) Broad Street Branch, Lagos and you Otta Akhibi, being the Managing Director of Axtro Film Limited customer of the Nigeria-Arab Bank Limited (now Assurance Bank Limited), Broad Street Branch, Lagos operating Account No. 1310116474-2 between July, 1994 and December, 1995 at Lagos, conspired to commit felony to wit granted various credit facilities totalling =N=45,341,466.35K in favour of AXTRO FILM LIMITED without lawful authority and in contravention of the rules and regulations of the Nigeria-Arab Bank Limited (now Assurance Bank Limited) and thereby committed an offence punishable under section 516 of the Criminal Code, Cap. 77 Laws of the Federal Republic of Nigeria 1990 read in conjunction with section 3 (1) (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (as amended).

COUNT 2:

That you Samuel B Apata and you, Olusegun Egunjobi, being the Manager and the Branch Accountant respectively, of the Broad Street Branch of Nigeria-Arab Bank Limited (now Assurance Bank Limited), between July, 1994 and December 1995 at Lagos, granted various credit facilities totalling =N=45,341,466.35K in favour of AXTRO FILM LIMITED without lawful authority and in contravention of rules and regulations of Nigeria-Arab Bank Limited (now Assurance Bank Limited) and thereby committed an offence contrary to section 18 (1) (b) and punishable under section 18 (2) of the Banks and other Financial Institutions Decree No. 25 of 1991 read in conjunction with section 3 (1) (c ) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1 994 (as amended).

On 16/11/1998, the pleas of each of the accused persons were taken. The appellant pleaded not guilty to the five counts against him; counts 1 and 2 inclusive. To sustain the charge, the prosecution called six witnesses and tendered a large chunk of documentary exhibits. The 1st accused and the 2nd accused/appellant testified in their defence.

The facts as assembled by the appellant’s counsel and adopted by the respondent’s counsel with which I am at one with both of them are as follows- The appellant was engaged as an officer of Nigeria-Arab Bank Limited on 10th April, 1989. He worked in various branches of the Bank and was posted from Daleko Branch, Isolo, Lagos to Broad Street Branch of the Bank as an Accountant in June, 1994.

There, he met Samuel B. Apata, the 1st accused as the Manager. The 1st accused became Principal Manager in 1996. Otta Akhibi (3rd Accused) was the Managing Director of Axtro Films Limited (4th Accused) which was a customer of the Branch where it maintained a current account No. 3101164726. The 3rd accused’s company (the 4th Accused) was by a letter dated 5th July, 1994 granted through the Bank a Six Years Term Loan by the National Economic Reconstruction Fund (NERFUND). The loan was in the sum of $1,276,680.00 (One Million, Two Hundred and Seventy-Six Thousand, Six Hundred and Eighty United States Dollars only) and =N=2, 212,000.00 (Two Million, Two Hundred and Twelve Thousand Naira Only) which was for the importation and installation of machinery for the manufacture and production of the required plant and machinery.

The case of the prosecution was that the 1st accused and the appellant as the Branch Manager and Branch Accountant respectively, granted overdraft credit facilities to the tune of =N=45,341,466.35K to the 3rd accused’s company, the 4th accused, which was unsecured and in a breach of the rule and regulations contained in the Bank’s Operation Manual as amended from time to time by the Head Office Circulars. The prosecution maintained that the cheque presented by the 3rd accused person in purported part payment of the said overdraft after much pressures was dishonoured for lack of funds.

The appellant in his defence admitted that the account in question was overdrawn through cheques signed by the 1st accused some of which were counter-signed by him while other officers of the Branch counter-signed the other cheques. He maintained that he had no power to grant overdraft on any account and that by counter-signing some of the cheques, he was merely doing so as part of his schedule of duties and in obedience to the instruction given to him by the 1st accused person. He maintained that some other cheques forming part of the withdrawal instruments were not counter-signed by him but by other officers who were not charged by the respondent. He admitted seeing the Bank’s Operation Manual but denied knowledge of the Head Office Circulars which were directed to the Branch Manager.

At the conclusion of the trial, counsel on both sides submitted written addresses to the Trial Tribunal which in its reserved judgment delivered on 24th March, 1999 rejected the defence of the 1st accused and the appellant. It found them guilty on counts 1, 2, 7 and 9. Each of them was sentenced to 5 years imprisonment on counts 1, 7 and 9 with sentences to run concurrently and 3 years imprisonment in respect of count 2. Sentences were also dished out to the 3rd and 4th accused persons in abstentia.