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Home » Nigerian Cases » Supreme Court » Olusegun Egunjobi V. Federal Republic Of Nigeria (2012) LLJR-SC

Olusegun Egunjobi V. Federal Republic Of Nigeria (2012) LLJR-SC

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.

The appellant herein felt dissatisfied and appealed to the court below which heard the appeal and handed out it’s judgment on 26th April, 2001. It set aside the conviction and sentence of the appellant in counts 7 and 9 and affirmed the convictions on counts 1 and 2. The sentences passed on the appellant, in counts 1 and 2 by the trial Tribunal were reduced to a fine of =N=20,000.00 or six months term of imprisonment in count 1 and a fine of =N=50,000.00 or 18 months imprisonment in count 2. The fines were made cumulative and the prison terms, concurrent. The appellant was ordered to be released from prison having served over 18 months in prison custody.

The appellant still felt dissatisfied with the stance of the court below and appealed to this court vide a Notice of Appeal which contained three grounds of appeal.

On 4th October, 2012, the appeal was heard by this Court. Learned counsel to the appellant adopted and relied on the appellant’s brief of argument filed on 8th July, 2011 and appellant’s reply brief filed on 28th August, 2012 both of which were deemed filed on 04/10/2012. He made oral submissions and urged that the appeal be allowed.

Learned counsel for the respondent also adopted and relied on the respondent’s brief filed on 31/05/2012 but deemed filed on 04/10/2012. He equally made oral submissions in amplification and urged that the appeal be dismissed.

See also  Chief J.J. Enwezor V. Central Bank Of Nigeria (1976) LLJR-SC

From the three grounds of appeal filed by the appellant two issues were formulated for determination and same were adopted by the learned counsel to the respondent without much ado. The two issues for determination by consensus of both sides read as follows:-

“4.01 Whether considering the law and the circumstances of this case, the learned Justices of the Court of Appeal were justified in holding that the Failed Bank Tribunal had jurisdiction to try the accused/appellant on counts 1 and 2 of the charge against the appellant (Ground 1)

4.02 Whether upon a proper evaluation and consideration of the evidence at the trial court and the concurrent findings by the Court of Appeal, the learned Justices of the Court of Appeal were justified in affirming the conviction of the appellant on counts 1 and 2 of the charge against the appellant (Grounds 2 and 3).”

Arguing issue 1, learned counsel for the appellant submitted that the Justices of the court below erred in law when they held that the trial Tribunal had jurisdiction to try the appellant on counts 1 and 2 of the charge. He maintained that it is settled, that it is the charge before the court that determines the jurisdiction of the court or Tribunal to entertain the charges. He cited the cases of Akinfolarin v. Akinfolarin (1994) 4 SCNJ 30 at 43; Ajaka Izenkwe & Ors. v. Nnadozie (1953) 14 WACA 361 AT 363; Adeyemi v. Opeyori (1976) 9-10 SC. 31.

Learned counsel submitted that a court or Tribunal can only be competent if, among other things, the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction. He cited the cases of Madukolu v. Nkemdilim (1961) N.S.C.C. (Vol. 2) 374 at 379; Tukur v. Taraba State (1997) 6 SCNJ 81.

Learned counsel further submitted that the issue of jurisdiction which is defined by statute is so fundamental and radical that it forms the foundation of adjudication as any judgment or proceeding, however well conducted without jurisdiction is a nullity. He cited Katto v. CBN (1991) 9 N.W.L.R (Pt. 214) 126.

Learned counsel asserted that the issue of jurisdiction can be raised at any time by a party even on appeal before the apex court for the first time. He cited Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296; Jeric Nig.) Ltd. v. U.B.N Plc. (2000) 15 NWLR (Pt. 691) 447 at 457.

Learned counsel for the respondent agreed with the Submissions made on behalf of the appellant that it is the charge before the court that determines the jurisdiction of the court to entertain the same. He also concurred with the submission that a court or Tribunal can only be competent if, among other things, the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction.

He maintained that it is trite that the issue of jurisdiction is so fundamental that it forms the foundation of adjudication.

Jurisdiction is simply defined as ‘a court’s power to decide a case or issue a decree’. It is basic that it is the charge before the court which determines the jurisdiction of the court to entertain same. This is as clearly pronounced by this court in Adeyemi v. Opeyori (supra) cited by the learned counsel to the appellant.

Let me reiterate the points that for a court or Tribunal to be competent to entertain a case, the suit must be initiated by due process of the applicable law, before a panel that is properly constituted and there is no feature in the case which prevents the court from exercising its jurisdiction.

This is as pronounced by this court decades ago in Madukolu v. Nkemdilim (supra) at page 379 and restated in Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508.

The issue of jurisdiction is very fundamental and radical. It should be determined at the earliest opportunity when it is raised. It forms the foundation or bedrock of adjudication and where a court lacks jurisdiction, there is want of competence to try the matter. If a court has no jurisdiction to hear and determine a case, the proceedings remain a nullity ab initio no matter how well conducted and decided. This is because a defect in competence is not only intrinsic, but extrinsic to the entire process of adjudication. See Labiyi v. Anretiola (1992) 8 NWLR (pt. 358) 129 at 169; Onagoruwa v. The State (1992) 2 NWLR (Pt. 221) 33 at 42; Katto v. CBN (supra). Akegbejo v. Ataga (1998) 1 NWLR (pt. 534) 459; Ogundipe v. Akinloye (2000) 10 NWLR (Pt. 775) 312.

Point relating to jurisdiction can be raised at any time by a party even on appeal before this court. It can be raised by the court itself but parties must be afforded the chance to address on same before a decision is taken. The cases of Bronik Motors Ltd. v. Wema Bank Ltd. (supra) and Jeric (Nig.) Ltd. v. U.B.N. Plc (supra), both cited by the appellant’s counsel, are of moment here. See: also Oloriode v. Oyebi (1984) 1 SCNLR 390, Ezomo v. Oyakhire (1985) 1 NWLR (Pt. 2) 195.

Let me now move to the real issue in respect of the jurisdiction of the trial Tribunal which the appellant has challenged. Learned counsel observed that the appellant was charged in counts 1 and 2 with offences under the Criminal Code Act, Cap. 77 Laws of the Federation 1990 and the Banks and other Financial Institution Decree No. 25 of 1991 (now Banks and Other Financial Institutions Act, Cap B2, LFN, 2004). Learned counsel observed that in order to arraign the appellant before the trial Tribunal, the charges were read along with section 3 (1) (c ) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994 (now Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2, LFN 2004).

Learned counsel further submitted that it is section 3 of Decree No. 18 of 1994 that clothes the trial Tribunal with the garb of jurisdiction to entertain the charge against the appellant. He submitted that for the trial Tribunal to have the power to entertain Count 1 under Section 3 (1) (c) of Decree No. 18 of 1994, the offence charged must be cognisable under the Banks and Other Financial Institutions Decree No.25 of 1991 (now CapB2, LFN 2004).

Learned counsel submitted that the offence of conspiracy to commit a felony under Section 516 of the Criminal Code, not being an offence under Decree No. of 1991, the trial Tribunal lacked jurisdiction to entertain it and the court below erred when it held that the trial Tribunal had jurisdiction to try the appellant on Count 1.

On behalf of the respondent, learned counsel observed that the criminal jurisdiction of the Tribunal is as specified in Section 3 (1) (b) (c) and (d) of Decree No. 18 of 1994.

He maintained that the offence in Count 1 constitutes an offence by virtue of Section 3 (1) (d) of the Decree. He felt that the offence of conspiracy under Section 516 of the Criminal Code was within the jurisdiction of the Tribunal as an existing offence under another enactment. He relied on the decision of this court in Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 392.

The jurisdiction of the Tribunal as established by Decree No. 18 of 1994 is specified in section 3 (1) (b) (c) and (d) which provides as follows:-

“3 (1) The Tribunal shall have power to –

(a) ………………………….

(b) try the offences specified in Part 111 of the Decree;

(c) try the offences specified in the Banks and Other Financial Institutions Decree 1991 and the

Nigeria Deposit Insurance Corporation Decree 1988 and;

(d) try other offences relating to the business or operation of a bank under any enactment.”

See also  Saka Ibrahim & Anor V. The State (1986) LLJR-SC

The court below, rightly in my view, found that the jurisdiction of the tribunal may be classified under two headings viz:

  1. Jurisdiction to try newly created offences under the Decree i.e. those specified under Part 111 of the Decree.
  2. Jurisdiction over existing offences created under other enactments.

With respect to 2 above, the court below got it right when it felt that the Tribunal has the jurisdiction to try such offences created under other enactments regardless of the time they were committed. In effect, Count 1 of the charge was preferred based on an existing offence under another enactment, to wit Criminal Code Act. The Tribunal, no doubt, was vested with the toga of jurisdiction to try Count 1 of the charge. To find otherwise will not be in tandem with the dictate of the law as envisaged by the Law Maker.

It is not the business of the court to create an escape route for the appellant as strenuously urged on his behalf. In respect of Count 2, learned counsel for the appellant contended that he cannot be tried under the count since section 3 (1) (c) of Decree No. 18 of 1994 has no retrospective effect to accommodate an offence committed between July, 1994 and December, 1995. Learned counsel observed that courts frown at enactments that have retrospective effect. He cited Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377 at 406 and Afolabi v. Governor of Oyo State (1985) 2 NWLR (Pt. 9) 734.

Learned counsel referred to Section 3(8) of the 1999 Constitution and maintained that statutes which overreach the citizen’s right of access to court are subject to very strict interpretation. He cited Rabiu v. The State (1950) 8 – 11 SC 130 at 149.

Learned counsel further submitted that Section 3 (1) (c) of Decree No. 18 of 1994 (as amended) contravenes Section 36 (8) of the 1999 Constitution and by virtue of Section 1(3) of same, is null and void to the extent of the inconsistency. He cited FRN v: Ifeagwu (2003) 15 NWLR (Pt. 847) 113; Sofekun v. Akinyemi (1950) 5-7 SC (Reprint) 1.

Learned counsel for the respondent maintained that Count 2 is not based on Section 3 (1) (c) of Decree No. 18 of 1994 and that it was preferred under the Banks and Other Financial Institutions Decree No.25 of 1991. He opined that the Tribunal cannot be divested of jurisdiction which is ordinarily imbued in it. Learned counsel again referred to Onwudiwe v. FRN (supra) at page 427.

The court below pronounced, rightly in my view, that Count 2, amongst others, was preferred based on offence under an existing enactment to wit, Banks and other Financial Institutions Decree No. 25 of 1991 which was already in force before July 1994 and December 1995 when the appellant was alleged to have committed the offence for which he was charged under Count 2.

The appellant tried to cling to fair hearing principle under Section 36 (8) of the 1999 Constitution. As stated earlier on, the Decree vests the Tribunal with the requisite power to enforce other existing penal statutes. That resulted in the appellant being charged under Decree No. 25 of 1991 which was promulgated before the appellant was charged. I cannot fathom any violation of Section 36 (8) of the 1999 Constitution being touted on behalf of the appellant as the act or omission of the appellant which resulted in Count 2 was in respect of an existing penal enactment. See: Onwudiwe v. FRN (supra) at page 427.

In short, I resolve issue 1 in favour of the respondent. I sustain the stand taken by the court below without any equivocation.

Issue 2, put briefly, is whether the learned Justices of the court below were justified in affirming the conviction of the appellant on Counts 1 and 2 of the charge.

Learned counsel for the appellant observed that this court does not make it a practice to interfere with the concurrent findings of fact by the two lower courts except where the findings are manifestly perverse or wrongly applied to the circumstances of the case or where the conclusion reached was wrong. He cited the cases of Musa v. The State (2009) 15 NWLR (pt. 1165) 467 at 488-490; Almu v. The State (2009) 10 NWLR (pt. 1148) 31 at 53 and Amachi v. Chinda (2009) 10 NWLR (pt. 1148) 107 at 13.

Learned counsel submitted that the court below ought not to have affirmed the findings of the trial Tribunal in respect of Counts 1 and 2. He felt that the court below did not properly review the findings of fact accordingly. Learned counsel for the respondent submitted that the court below properly and extensively reviewed the findings of fact of the trial Tribunal before it affirmed same.

Generally, an appellate court should not ordinarily substitute its own views of fact for those of the trial court; except where wrongly applied to the circumstance of the case or the conclusion reached was perverse or manifestly wrong. This is because ascription of probative value to the evidence of witnesses is pre-eminently the business of the trial court which saw and heard the witnesses. An appeal court will not interfere with same unless for compelling reasons. See: Ebba v. Ogodo (1984) 1 SCNLR 372; Balogun v. Agboola (1974) 1 ALL NLR (Pt. 2) 66; Ogbechie v. Onochie (1998) 1 NWLR (Pt. 470) 370; as well as Musa v. The State (supra) and Almu v. The State (supra) cited by the learned counsel for the appellant.

Learned counsel felt that the trial Tribunal and the court below placed undue reliance on the confessional statement of the appellant; to wit Exhibit C; the testimonies of PW2, PW3, Pw4 and PW5 and the counter-signing of most of Exhibits G-G180 in arriving at their decision in convicting the appellant in Counts 1 and 2. Learned counsel submitted that there is nothing that can be said to be confessional in Exhibit ‘C’ and that the appellant maintained that he counter-signed most of the cheques in question in the ordinary course of his official duties. Learned counsel maintained that same negatived any mens rea necessary for the proving of the offence of conspiracy under Count 1 as there was no common intention on the part of the appellant and any person whatever to prosecute any unlawful purpose. He cited the case of Mbang v. The State (2009) 12 SC (Pt. 111) 193 at 211- 214.

Learned counsel for the respondent maintained that the evidence adduced by PW2, PW3, PW4 and PW5 corroborated the confession made by the appellant in Exhibit ‘C’. He asserted that the counter-signing of most of Exhibits G-G180 by the appellant wrongly along with the 1st accused constituted the actus reus which established conspiracy.

I wish to express it pointedly here that conspiracy is often hatched in utmost secrecy. To unravel same, the circumstance of the matter should be adequately considered. About four decades ago, this court per G.B.A Coker, JSC (of blessed memory) pronounced as follows in Patrick Njovens v. The State (1973) 1 NMLR 331-

“When it is proposed to give evidence of happenings inside hell it is only a matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed, it would be preposterous to look for such evidence in other directions.”

The court below, in treating the issue, found that most of the cheques – Exhibits G-G180 which facilitated the undue huge credit facility in the sum of =N=45,341, 466.35 made to the 4th accused were signed by the 1st accused and counter-signed by the appellant. The court below found that it was not necessary to lead direct evidence to establish the agreement of the accused persons to grant the overdraft facilities as the cheques-Exhibits G-G180 most of which contain the signatures of the accused persons (appellant’s own inclusive) constitute the overt act or actus reus which established the agreement. See: Paul Onochie v. The Republic (1966) NMLR 307. The appellant did not deny counter-signing the cheques. The court below observed that the appellant testified at page 193 of the record thus:-

See also  Jack Afiuwa Ekpoke & Anor V. Douglas Usilo & Ors. (1978) LLJR-SC

“I counter-signed majority of Exhibits G-G180 except a few number of five to ten in the course of my normal duties.”

The court below rejected the appellant’s defence as been untenable. It was obvious that in the absence of his counter-signature, majority of those cheques could not have been paid. The court below referred to the appellant’s answers to questions as recorded on page 199 of the record which read as follows:-

Question: As a banker and as counter-signing officer, before you append your signature to any cheque already signed by the 1st accused are you supposed to take any step

Answer: Yes, My Lord, because I will confirm if the signature is not forged. I will check the balance in the account.

Question: Why do you have to check the balance in the Account

Answer: To check if there is sufficient fund to pay the cheque. I will go to the Manager (sic) whether he actually authorised the payment.

If he says yes, I will ask him if there is authority. He would answer yes or no.

Question: If he answers No, what happens

Answer: If he answers that there is no authority, I will not counter-sign the cheque.

The court below found that there was overwhelming evidence to sustain the conviction of the appellant in count 1 of the charge. From the circumstance of the matter as carefully considered by the court below, I have no cause to interfere with the balanced appraisal made. I affirm the position taken by the court below and resolve the point touching on conspiracy against the appellant and in favour of the respondent.

On Count 2, learned counsel for the appellant maintained that the prosecution failed to establish the offence. He submitted that the ingredients that must be established by cogent evidence for the prosecution to succeed on Count 2 are:-

  1. That loans or credit facility were granted to the 4th accused by the 2nd accused in the sum involved.
  2. That the grant of the loan or credit facility was unauthorized and unsecured.
  3. That in granting the loan or credit facility, the 2nd accused contravened rules and regulations of the Bank.

Learned counsel cited the case of FRN v. Sheriff (1998) 2 F.B.T.LR 109 at 128 – 129 and submitted that the above ingredients must be proved conjunctively and not disjunctively. Learned counsel maintained that the appellant did not approve any credit facility to the 4th accused. He asserted that other officials who like the appellant, counter-signed a few of the cheques along with the first accused were not charged, and touted a point of discrimination against the appellant. He urged that the appellant be discharged and acquitted.

Learned counsel for the respondent submitted that the 1st accused admittedly granted the unauthorized facilities but he was aided and abetted by the appellant who is equally guilty by virtue of Section 7 ( c) of the Criminal Code Act Cap 77 Laws of the Nigeria 1990. Learned counsel submitted that it is common knowledge that without the counter-signature of the appellant on most of the cheques Exhibits G-G180 the various sums could not have been withdrawn merely on the signature of the 1st accused person.

The response made by the learned counsel for the respondent is clearly of moment here. As stated by the court below, it is common knowledge that without the appellant’s counter- signature on most of the cheques-Exhibits G-G180, the sums therein stated could not have been withdrawn merely on the signature of the 1st accused alone. Although it was his schedule of duties to counter-sign cheques signed by the Manager he was not a robot.

Let me state it further that he was not a ‘Zombie’.

Admittedly, the 1st accused was the person granting the unauthorized facilities contrary to section 18 (1) (b) of BOFID No. 25 of 1991, but in doing so he was aided and abetted by the appellant who is equally guilty of the offence by virtue of Section 7 (c) of the Criminal Code Act, Cap 77 Laws of Nigeria, 1990.

The court below further found that the documents Exhibits L5, A, A2 and J2 referred to by learned counsel to the appellant cannot by any stretch of the imagination be evidence of the authority of the Head Office of the Bank for the over-draft facilities.

The stance taken by the court below is without blemish.

The appellant did not show that he took proper steps before counter-signing most of the cheques-Exhibits G-G180 which led to the colossal unauthorized and unsecured facilities to the 4th accused. If he had taken proper steps by refusing to counter-sign the vast majority of those cheques, the story would have been different. The appellant’s contention that the evidence of PW2 and PW3 raise doubts as to the role played by him rests on quick sand. It has no foundation. The 1st accused and the appellant herein know the rules contained in Exhibits J and H series which they flouted and granted unauthorized facilities to the 4th accused.

The point of discrimination raised on behalf of the appellant when it was maintained that others who counter-signed cheques like the appellant were not prosecuted is a non-issue. It has to do with public policy. The Attorney-General is in charge of his official duties and it is presumed that he knows what to do in any given situation without any undue prompting. In this respect, I was not taken in by the ploy embarked upon by the appellant who should dance to the tune dictated by him.

Without much ado, I am at one with the stance taken by the trial Tribunal and the court below. With respect to the two counts for which the appellant was convicted and sentenced, the appellant failed to exculpate himself. He failed to extricate himself; in the main. I resolve issue 2 against the appellant and in favour of the respondent as well.

This is clearly a case where the trial Tribunal and the court below made concurrent findings of fact on virtually all the issues that were seriously canvassed. They also considered the applicable laws properly in an admirable fashion. This court will not interfere as there are no reasons shown to justify same. See: Kale v. Coker (1982) 12 SC 252; Musa v. The State (supra) and Almu v. The State (supra).

On the whole, I come to the conclusion that the appeal lacks merit and it is hereby dismissed. The conviction in respect of counts 1 and 2 and the reduced sentence made by the court below are hereby affirmed. Chief Philip Umeh, learned counsel for the respondent urged that the appeal be dismissed with substantial costs. This is the first time I will read such a thing in a brief of argument dealing with a criminal matter. Learned counsel should know better. The rules of the court did not touch on same. It is unheard of and should not be repeated.


SC.44/2010

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