Oreoluwa Onakoya Vs Federal Republic Of Nigeria (2002)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

The accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to the following charge:

“That you Oreoluwa Sylvester Adedeji Onakoya (male) while being a director of Savannah Bank of Nigeria Plc in lagos, between 20th may, 1996 and 28th may, 1996 did commit a felony to wit, you approved the granting and granted credit facility of N14m (fourteen million naira) to one Alhaji Gajimi Ibrahim, a customer of the maiduguri branch of the Savannah Bank of Nigeria Plc without lawful authority and in violation of lending rules and regulations in force at the time in Savannah Bank of Nigeria Plc, particularly memorandum 119. You thereby committed an offence contrary to sections 19(1)(a)(b) & (c) of the failed banks (recovery of debts) and financial malpractices in banks decree no.18 of 1994 as amended (herein after referred to as the decree) and punishable under section 20(1)(a) of the same decree.”

During trial at the tribunal, the prosecution called seven witnesses while the accused testified in his own defence and called one other witness. Thereafter counsel filed and exchanged written addresses which were adopted at the hearing and judgment reserved. In a considered judgment delivered on the 2nd day of february, 1999, the learned trial Judge after a review of both oral and documentary evidence before the tribunal found the accused guilty and convicted him as charged. He was sentenced to three months imprisonment. Aggrieved by the decision of the tribunal, the accused now appellant, appealed to the Court of Appeal holden at lagos. In a unanimous judgment delivered on the 11th day of july, 2000, the appeal was dismissed. Still dissatisfied with the judgment of the Court of Appeal, the appellant has further appealed to this court. In obedience to the rules of court, the parties filed and exchanged briefs of argument. These were adopted and relied upon during oral argument at the hearing.

Learned counsel for the appellant, Professor A. B. Kasunmu, S.A.N, has formulated three issues in the appellant’s brief for the determination of this court. The issues read as follows-

(1) Was the Court of Appeal right in holding that the trial court was right in coming to the conclusion that the case against the appellant was established beyond reasonable doubt based on the evidence before the trial court

(2) Was the Court of Appeal right in confirming the interpretation of paragraph 3 of exhibits C1, C2, D and H by the trial court to the effect that the endorsement by the appellant on the exhibits was confirmation of an earlier oral approval of credit facility granted to the customer on the 24th of may, 1996

(3) Was the Court of Appeal right in holding that even though the charge against the appellant was not properly drafted, his conviction could still stand when this would infact amount to him being convicted for an offence for which he was never charged

Before delving into these issues, I think it will be proper to state the facts of the case albeit briefly, as follows –

The case for the prosecution is that the appellant who was then an executive director of Savannah Bank of Nigeria Plc, in charge of operations was alleged to have approved the granting of an overdraft facility of N14 million in favour of one Alhaji Gajimi Ibrahim (PW 6), a customer of the maiduguri branch of the bank. It was the prosecution’s case that P.W.6 travelled to Lagos where he met the appellant in his office and requested for the overdraft facility. It was alleged that the appellant gave oral approval of the facility and thereafter telephoned P.W3 and PW4, the area manager in kano and the branch manager in maiduguri respectively, asking that the overdraft facility be granted against security to be lodged by P.W 6. Later P.W3 was said to have reduced into writing his discussion with the appellant and faxed same to him in lagos for a written confirmation. It was the case of the prosecution that the appellant had no power to lend any amount as there was an embargo on lending by the bank at the time under its credit policy memorandum 119. On the other hand, the appellant maintained that although P.W.6 visited him in lagos and made a request for an overdraft facility, no specific amount was discussed as he was unable to communicate with PW6 due to language barrier. That he directed PW6 to his branch and that it was PW3 and P.W4 who later communicated to him on telephone the request made by P.W6, and which request he asked to be put in writing to him. This was done via a fax memo dated 24th may, 1996 from P.W.3 to the appellant. The appellant endorsed an approval on the fax message and returned same to P.W.3. There was then the issue of whether the fax message from P.W3 to the appellant was a request for N14 (fourteen) million or N1.4 (one point four) million, and secondly whether the endorsement of the appellant on the fax message sent by him on 27th may, 1996 was for a written confirmation of the overdraft he was alleged to have given orally on 24th may, 1996.

Finally the appellant said his authority to lend was conferred by a board resolution and that he had a lending limit of N1 million (unsecured and N2.5 million (secured)). That in the instant case he approved the sum of N1.4 (one point four) million overdraft facility for P.W.6 and directed that security be obtained for this facility. It was his case that P.W.3 and P.W.4 conspired with P.W.6 to give an overdraft facility of N14 Million to PW.6 and that the disbursement was infact made before he approved any sum at all to P.W.6. As stated above, the learned trial Judge reviewed the evidence before the tribunal, believed the prosecution witnesses and disbelieved the appellant who was consequently convicted as “charged.” His appeal to the Court of Appeal was dismissed and he is now before this court. I shall now proceed to deal with the three issues submitted for resolution in the appellant’s brief reproduced above. Issues (1) and (3) will be taken together while issue (2) will be treated separately.

Issues (1) & (3)

The two issues question the propriety or validity of the charge against the appellant and whether or not the lower courts were right in holding that the case against him was established beyond reasonable doubt.

As for the charge, Professor Kasunmu, S.A.N submitted that section 19 of decree no. 18 of 1994 under which the appellant was charged created four distinct offences as follows –