Mukhtar Yusuf Gwadabe V. Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
This is an appeal against the judgment of the Kano State High Court delivered on 9/10/2012 by Hon. Justice Dije Abdu Aboki, in which the Appellant was found guilty on a two count charge of criminal breach of trust punishable under Section 312 of the Penal Code and the issuance of a dishonored cheque, punishable under Section 1(1) (b) (i) of the Dishonoured Cheques (Offences) Act, 2004. He was sentenced to two years imprisonment or the payment of a fine of N200, 000 for the first offence and six months imprisonment or the payment of a fine of N50,000 for the second offence, the sentences to run concurrently.
In addition, the Appellant was to pay compensation to PW2 of the sum of N76million and, in default, to serve five years imprisonment. He paid the fine of N200,000. Dissatisfied, however, with his conviction and sentence, he filed a Notice of Appeal to this Court on 13/1/13, subsequently amended by leave of the Court. The Amended Notice of Appeal, containing 16 grounds of appeal, was filed on 7 /2/14.
?The facts leading to this appeal are that the Respondent, through the agency
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of the Economic and Financial Crimes Commission (EFCC) prosecuted the Appellant in the Court below, presenting three prosecution witnesses. The case of the prosecution is that PW2, Nura Ammani, a foreign exchange dealer based in Kaduna, contacted the Appellant, also in the same trade, based in Kano, for the supply of one Million US Dollars. The Appellant agreed to supply the dollars at the rate of N152 to one dollar, for the total sum of N152 Million Naira. The Appellant came down to meet with PW2, who issued a draft of N152 Million, which the Appellant lodged in his account at Intercontinental Bank, Kano. The Appellant only supplied $500,000 (Five Hundred Thousand Dollars) promising to send the balance when he returns to Kano. He, however, did not send the balance, claiming that the dollars were not readily available. Following demands from PW2, the Appellant, after a period of three months, met with PW2 in Kaduna and issued him with a cheque for the Naira Balance of N76 Million (Exhibit A). He also wrote a letter of undertaking, dated 31/7/09 (Exhibit B) promising to refund the said sum on or before 30th August 2009. The cheque, on presentment, was, however,
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dishonoured. PW2 sent a petition to the EFCC office in Abuja, who directed same to their Kano office.
The Appellant testified in his defence, as DW1, and called an additional witness, a fellow Bureau de Change operator, operating from the same office as him. The Appellant in his evidence agreed that he was given the sum of N152 Million for the purchase of $1 Million. He alleged that the Appellant instructed him to transfer the said sum to his (PW2) account, CGC Nig Ltd, Bank of China, Paris Branch. The Appellant transferred half of the money to one Umar Abubakar of Galaha Investment who sent $500,000 to CGC account in Paris. He (Appellant) used the balance to buy dollars, which he sent to Dubai, giving instructions for it to be wired to CGC Nig Ltd, PW2’s client’s account. He alleged that PW2 confirmed his customer’s receipt of the said sum and that a copy of the transfer was sent to PW2 by email. On being informed by PW2 that his customer did not receive the balance, he (Appellant) contacted Umar Abubakar Galaha, who requested for time to get the dollars, which he said was scarce. When the dollars were not forthcoming, PW2 requested for a refund of the
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Naira equivalent, which Umar Abubakar agreed to, but defaulted. He thence went to PW2 in Kaduna with apologies. PW2 requested that he write an undertaking, which he did (Exhibit B). He also wrote a cheque (Exhibit A), requesting that PW2 present the cheque only after Umar Abubakar confirms that he has paid the money into the Appellant’s account. PW2 agreed to wait for a week and if the money was not deposited, would take legal action.
The trial Judge, in his judgment, held the case of the prosecution proved. He found the account of the transaction presented by the Appellant that payment was to be effected through transfer to the account of a company called CGC Nig Ltd, contradictory.
Briefs of arguments, in accordance with the rules of this Court, were filed. The Appellant’s Brief, settled by S.J Gani Esq of S.J, Gani & Co, is dated 06/03/2014 and deemed as properly filed, with leave of this Court, on 3/12/2014. The Respondent’s Brief, settled by M.S Abubakar Esq, Deputy Chief Legal Officer, Legal and Prosecution Dept, EFCC Kano Zonal Office, dated 26/05/2015, was deemed properly filed by this Court on 1/12/2015.
Learned counsel to the
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Appellant formulated 8 issues for the Court’s determination, to wit:
1. Whether from the evidence adduced in this case the prosecution proved the offence of criminal breach of trust against the Appellant to warrant his conviction and sentence by the trial Court.
2. Whether considering the facts in this case the learned trial judge was right when he held that he has jurisdiction to try the Appellant for the offence of dishonored cheque.
3. Whether considering the facts of this case the learned trial judge was right when he found the Appellant guilty of the offences of issuance of dishonored cheque.
4. Whether the trial judge was right when he held that the $1million was intended to be given to the complainant immediately and that half was indeed so given,
5. Whether the learned trial judge was right by admitting Exhibits f1, f2, f3 and N in evidence,
6. Whether the trial judge was right when he held that there is no evidence that the sum of N76 million is being withheld by Umar Galaha.
7. Whether there is evidence in this case that the Appellant and the PW2 made effort to recover the money from Umar Galaha.
8. Whether the
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learned trial judge was right when he held that Exhibit G has very little probative value.
The Respondent’s Counsel distilled two issues for the Court?s determination, namely :
1. Whether the prosecution had proved the offence of criminal breach of trust against the Appellant beyond reasonable doubt.
2. Having regard to the evidence adduced in this case, whether the trial Court had jurisdiction to try the Appellant for the offence of issuance of dishonoured cheque and if so, whether the prosecution had proved the said offence against him beyond reasonable doubt.
I find the issues raised by the Appellant’s Counsel to be prolix and unnecessarily repetitious. lt is never the number of issues formulated and argued by the Appellant that guarantees the success of his appeal. Rather, it is the relevance of the issues and the potency of the arguments thereon which put the Appellant at a better stead. An Appellant’s arguments come through more forcefully and with disarming clarity if they are neither repetitive nor verbose. The better approach is to formulate a single issue to cover a number of grounds. Economy of words is advised in the
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formulation of issues and, succinctness, the overriding index. see Roda v FRN (2015) 10 NWLR Part 1468 Page 427 at 461-462 para G-B per M.D. Muhammad JSC.
I shall, in consequence, adopt the issues for determination formulated by the Respondent’s Counsel, as they succinctly encapsulate the salient issues, with the addition of issue 5 raised by the Appellant, as the 1st issue. The issues raised by the Appellant shall be considered under these 3 issues, as follows:
1. Whether the learned trial judge was right by admitting Exhibits F1, F2, F3 and N, in evidence.
2, Whether the prosecution had proved the offence of criminal breach of trust against the Appellant beyond reasonable doubt.
3. Having regard to the evidence adduced in this case, whether the trial Court had jurisdiction to try the Appellant for the offence of issuance of dishonoured cheque and if so, whether the prosecution had proved the said offence against him beyond reasonable doubt.
The 1st issue for determination is:
Whether the learned trial judge was right by admitting Exhibits FI, F2, F3 and N, in evidence
The Appellant’s Counsel has argued that the trial Court
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was in error to have admitted the said exhibits, being original copies from the EFCC, an official body, and which, by Section 102 of the Evidence Act 2011, are only admissible by production of certified true copies.
I consider it unnecessary to go into the merits of this issue and the Respondent’s submissions in opposition, as it is trite law that a party seeking to raise fresh issues, which, by counsel?s admission, were not raised in the Court below, must seek the leave of this Court. An issue which was not raised, argued and pronounced upon by a trial Court cannot, I hold, be validly raised as a ground of appeal or as an issue for determination before the appellate Court. Such an issue or argument made, is not competent, I hold. See Idufueko v Pfizer Products Ltd (2014) 12 NWLR Part 1420 Page 96 at 122 Para A per Galadima JSC (lead); Compagnie Generale De Geophysique (Nig) Ltd v Aminu (2015) 7 NWLR Part 1459 page 577 at 591 para G per Rhodes-Vivour JSC.
The 2nd issue for determination, is:
Whether the Prosecution had proved the offence of criminal breach of trust against the Appellant beyond reasonable doubt.
?Learned Counsel to the
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appellant has submitted that it is an established principle of our criminal law that in criminal cases the burden of proof lies on the prosecution and never shifts, and that the standard of proof is beyond reasonable doubt.
He submitted that the Appellant was charged with the offence of Criminal Breach of Trust under Section 311 of the Penal Code. lt is trite, he said, that in a charge of Criminal Breach of Trust, the prosecution must prove beyond reasonable doubt that:
1. The accused was entrusted with property
2. The accused misappropriated it or converted it to his own use or in violation of any direction or contract and
3. He did so dishonestly.
Citing the cases of Ugbaka v. State (1994) 8 NWLR Part 364 568 at 585- 586 para H-A and l.G Tirah v. C.O.P (1973-75) NNLR 143 at 149, Counsel conceded that the Prosecution had proved the 1st requirement, that the Appellant was entrusted with money. To warrant conviction for Criminal Breach of Trust, however, the Prosecution must further prove misappropriation and dishonesty, meaning that the relevant intention constituting dishonesty is an essential ingredient of the offence.
?He
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contended that the trial judge was in error to have inferred dishonesty from the manner of withdrawals of the funds by the Appellant from his account. Even if it is conceded that the various withdrawals show misappropriation, the prosecution must go further to prove the dishonest intention of the Appellant, which was not done. Citing State v Ogunbanjo (2001) 1 SCNJ 86 at 103 on circumstantial evidence, he submitted that the circumstantial evidence relied upon, as alleged by the trial Judge, should be cogent and unequivocal, leading to the irresistible conclusion of the guilt of the Appellant. This charge was accordingly not proved, he submitted.
In response, the Respondent’s Counsel contended that the trial Judge, who had the opportunity of first hand evaluation of evidence, assessment and credibility of the witnesses, found that the prosecution had adduced overwhelming evidence of the commission of the offence by the Appellant. The facts, he said, support this finding. The 2nd ingredient of the offence, he submitted, concerns the actus reus and not the mens rea, as misconceived by the Appellant’s Counsel. lt is at the stage of determining the 3rd
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ingredient that the honesty or otherwise of the Appellant’s conduct comes into play. He urged the Court to uphold the verdict of the lower Court. He also cited Ugbaka v. State (1994) 8 NWLR Part 364 568 at 585-586 Para H-A; I.G Tirah v. C.O.P (1973-75) NNLR 143 at 149; Ajiboye v State (1994) 8 NWLR Part 364 Page 587.
?As rightly submitted by the Appellant’s Counsel, the burden of proof in criminal cases, by Section 135 of the Evidence Act 2011, is on the prosecution and is proof beyond reasonable doubt.
It was held by the Supreme Court per Tobi JSC in the case of Ani v State (2009) 16 NWLR Part 1168 Page 443 at 457-458 Para F-B as follows:-
“The burden of proof of an accused person committing an offence is on the prosecution and it is beyond reasonable doubt. Section 138 of the Evidence Act (now Section 135 of 2011) provides that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 141 of the Evidence Act, on the person
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who asserts it, whether the commission of such act is or is not directly in issue on the Act?.
ln Abeke v State (2007) 9 NWLR Part 1040 Page 411 at 429 Para C-D, it was held, per Tobi JSC (of blessed memory), that:
“Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.?
Section 311 of the Penal Code provides:-
“Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of the mode in which such trust is to be
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discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.?
Section 312 of the Penal Code provides that to constitute this offence, the prosecution must lead evidence to prove the following facts:
a. That the accused was entrusted with property or dominion over it,
b. That he misappropriated it or converted it to his own use or used it or disposed of it.
c. That he did so in violation of:
(1) Any direction of law presenting the mode in which such trust is to be discharged.
(2)Any legal contract express or implied which he had made concerning the trust, or
(3)That he intentionally allowed some other persons to do as above.
d. That he acted dishonestly.
In the case cited by the Appellant’s Counsel of Ugbaka v State (1994) 8 NWLR Part 364 Page 568 at 585-586 para H-B, this Court, giving the requisites of this offence, held, per Opene JCA, that:
“ln a charge of the offence of criminal breach of trust, it is not only sufficient for the prosecution to show that the Appellant was
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entrusted with property or dominion over it, they must establish that he either misappropriated it or converted it to his own use or used it or that he disposed of it.”
In the instant case, the lower Court reviewed the evidence of the parties. lt considered Exhibit D, the Statement of Account of the Appellant, which confirmed the payment of N152 Million into the Appellant’s account on 12th February 2009. lt also noted that only the sum of N76,750,000 was withdrawn the following day. The Court further observed that “the other half of the money paid in by PW2 were (sic) withdrawn in piecemeal (sic) over a period of time.” Having held that the 1st ingredient was established, she posed the following poser:
“The 2nd and 3rd ingredients of the offence is whether there is evidence of misappropriation of the money by the accused or disposing of it in violation of any legal contract made in relation to the money and that this was done dishonestly,”
Subsequent to a review of the legal submissions of both Counsel, the lower Court considered the evidence and the pleadings of the parties. It observed that the Statement on Oath of the Appellant differed from
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his Statement of Defence as regard the manner of transaction. lt alluded to the conflict in the Appellant’s account of the transaction by his processes filed in the lower Court. lt pointed out the conflict in the case before it and his Statement on Oath and Statement of Defence in a prior case filed by PW2 to recover the money in question.
The Court thereafter held:
‘The prosecution in this case tendered Exhibit Hl-H3 which are the writ of summons, the statement of defence and the accused’s statement on oath in respect of the Court case filed by PW2 to recover the money in question before a High Court in Kaduna. In the Statement of Defence filed by the accused in that case the accused stated that the payment of $500,000 to the pw2’s account was done through Umar Abubakar Galaha who in turn effected the transfer through one Musa Jega. And that the whole sum of N152 Million was given to Umar Abubakar so as to source the whole one million dollars and that Umar Abubakar?s agent Musa Jega transferred only half of the money to PW2’s client. This same averment in the statement of defence was in his statement on oath dated 22/4/10 attached to the
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statement of defence.
Furthermore?.the two affidavits attached to a summons to admit to bail ?.at the High Court in Kaduna …also deposed that the whole sum of N152 Million was given to Umar Abubakar to supply the dollars and only $500,000 was supplied by him……the accused now sang a different tune and claims the sum given to Umar Abubakar was N76 Million as opposed to what he earlier claimed and of course this is when he was faced with the stark reality of what is contained in Exhibit D his Statement of Account. And although a lie by an accused is not evidence of guilt however where a person has earlier stated on oath what is a radical departure from what he now claims, the evidence of that person must be taken with a pinch of salt and cannot be found to be credible….Also other than one or two, the various withdrawals of N76 Million made by the accused were not explained by him, The manner of those withdrawals do not point to anything other than that the accused was disposing of the money for which the Pw2 entrusted him with. Thus if the accused had sourced the $500,000 through Umar Galaha it only means that the N76 Million paid to
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him (Umar Galaha) was the naira equivalent and this clearly disproves his claim that Umar Galaha was unable to refund the money”
The trial Judge, holding that the element of dishonesty is usually proved by circumstantial evidence, held that the act of the Appellant in using the money of PW2 “for purpose other than what the money was meant for …depicts the intent to cause wrongful loss to the PW2 which loss is the direct result of his act. The mere fact that the accused stated that he intends to repay PW2 his money cannot and does not disprove the evidence of his criminal intent in converting PW2’s money to his own use,”
Agreeing that the law is that the prosecution in a criminal trial has the burden to prove all the ingredients of the offence in question, once evidence is led, it held, the onus is on the Appellant to disprove the evidence to create reasonable doubt, which, it held, had not been done.
It concluded on the first count:
‘The evidence of the accused in this case having earlier found same to be unreliable in view of their material contradiction (sic) has not in any way created any doubt in my mind on the evidence adduced in
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proof of the offence of criminal breach of trust of the sum of N76 Million?.
The duties of a trial Judge are well settled. As held by the supreme Court in the case of Ogundalu v. Macjob (2015) 8 NWLR part 1460 page 96 at 116-117 Para F-A per Rhodes-Vivour JSC “it is the duty of the trial judge to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation.
Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence, Consequently where this is done the Appeal Court should always be reluctant to differ from the trial judge’s finding. lt is only where the trial Court failed to evaluate such evidence properly that an appellate Court can re-evaluate evidence”.
For an appellate Court to upset the decision of the lower Court or reevaluate the same, the decision must have been
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perverse. The decision of a Court is perverse when it ignores the facts or evidence before it, which lapse, when considered as a whole, constitutes a miscarriage of justice.
A perverse decision is one in which the decision did not draw from the evidence on record or it is consequent upon a wrong application of the law to correctly ascertained facts. In addition, the decision of the Court is said to be perverse where the decision is bedeviled by the Court’s consideration of irrelevant facts or the exclusion of relevant facts which lapse results in a miscarriage of justice. See Abegunde v Ondo State House of Assembly (2015) 8 NWLR Part 1461 Page 314 at 343-344 Para H-D, 346 G-H per M.D. Muhammad JSC; James v INEC (2015) 12 NWLR Part 1474 Page 538 at 602 Para C-D per M.D, Muhammad JSC; Oleksandr v Lonestar Drilling Co. Ltd (2015) 9 NWLR Part 1464 Page 337 at 375 Para B-C per Kekere-Ekun JSC.
Where the Court of trial, however, unquestionably and justifiably evaluates the evidence before it and justifiably appraises the facts, it is not the business of the Court of Appeal to substitute its own view for those of the trial Court – Guardian Newspapers Ltd v
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Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para C-D per Rhodes Vivour JSC.
In the instant case, the trial Judge set out the ingredients of the offence. He meticulously considered the evidence before him, justifiably appraising the facts. He applied the law to the facts of the case in holding the Appellant guilty of the offence of criminal breach of trust. There is no necessity, I hold, for this Court to intervene to re- evaluate these facts. The Court’s decision has not been shown to be perverse and I see no reason to disturb the Court’s finding that the Prosecution had proved the offence of criminal breach of trust against the Appellant beyond reasonable doubt. I resolve the 2nd issue for determination against the Appellant.
The 3rd issue for determination is:
Having regard to the evidence adduced in this case, whether the trial Court had jurisdiction to try the Appellant for the offence of issuance of dishonored cheque and if so, whether the prosecution had proved the said offence against him beyond reasonable doubt.
Learned Counsel to the Appellant contends that from the facts of the case, there was no commission by the Appellant of
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any offence under the Dishonoured Cheques Act 2004. In addition, even if any offence was committed, it is the Kaduna State High Court that has jurisdiction to try the Appellant and not the Kano State High Court. Counsel further contended that contrary to the Act, not only was the cheque not presented within the period specified, at the time he issued the cheque, he believed that the cheque would be honoured when presented.
Responding, learned Counsel to the Respondent submitted that the single most important element of the offence of issuance of a dishonoured cheque is neither the issuance of the cheque nor its presentation for payment but the insufficiency/total lack of funds in the account of the drawer. Funds in an account are held or presumed to be held in the branch where the accused is domiciled. Confirmation of availability or otherwise of funds in the account is done by the said branch. In the instant case, the account was domiciled in Kano, which brings the case within the jurisdiction of Kano State. There is also nothing to show from the records that PW2 presented the cheque for payment in Kaduna. In any event, the Appellant, subsequent to the
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issuance of the cheque entered Kano State, where he was eventually arrested and prosecuted.
On the question whether the prosecution had proved beyond reasonable doubt the offence of issuance of a dishonoured cheque Counsel commended the authority of Abeke v State (2007) 10 QCCR 61 to the Court on the implications of issuance of a cheque.
The trial Judge, on the matter of the jurisdiction of the Court to try the offence, held the submission of the prosecution to be well founded.
He held
“The fact that the cheque in question was drawn from an account in Kano in my view clothes this Court with jurisdiction to try the offence and I so hold?”
Sections 1 and 3 of the Dishonoured Cheques (Offences) Act 2004 provides as follows:
1(1) Any person who-
a. obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or
b. obtains credit for himself or any other person,
by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of
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the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall-
(i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and
(ii) in the case of a body corporate, be sentenced to a fine of not less than N5,000.
3 A person shall not be guilty of an offence under this section if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in Subsection (1) of this section.
The Appellant has relied on Section 3 above as exculpating him of the offence.
It was the case of the Appellant and his witness that on giving the the cheque to PW2, the Appellant requested PW2 not to cash it until “Umar” sent the money to him. lt was the Appellant’s belief that the cheque would be honoured.
The evidence of PW2 was however to the contrary. His evidence is that ?I presented the cheque after 2 days as the accused instructed”.
?On the assertion by the Appellant’s Counsel that
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when giving the cheque to PW2 he had told him to await his call before presenting the cheque, which call would come when Umar Galaha pays into the Appellant’s account, the trial Judge held that this submission cannot avail the Appellant, as the Court had found that the money given to Umar Galaha was the one outstanding. This submission could thus not be true.
He held:
‘Therefore, there is no evidence before this Court that the sum of N76 Million i.e. half of the money paid into the accused’s account by PW2 is withheld by Umar Galaha”
I again cannot fault the trial Judge in so holding for, as held in the case of Abeke v State supra, per Mukhtar JSC at page 434 para E-G, as he then was:
“lt is the prerogative of a trial judge who sees and listens to witnesses to choose which to believe and ascribe probative value to his or her evidence. lt is not the place of an appellate Court to evaluate evidence, which has already been evaluated by a trial Court which has not been shown to be perverse, and the position of the law is very clear on this. An appellate Court will not interfere with findings, based on such evaluation unless it is found to be
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erroneous.?
The evaluation of the trial Judge I do not find to be erroneous or perverse. There is thus no reason to interfere with this finding.
The argument of the Appellant that the cheque was not presented within the three months stipulated in Section 1 of the Act cannot, I hold, avail the Appellant, as the date on the cheque is 26/5/09. The evidence of PW2, under cross examination is that ?I presented the cheque after two days as the accused instructed?. There was no rebuttal evidence on the date of presentment of the cheque. Section 1 of the Act presents no protection to the Appellant, I hold.
The Appellant again argues that the venue of trial should have been the High Court of Kaduna State instead of the High Court of Kano State, thus depriving the lower Court of jurisdiction to entertain the case.
On the issue of jurisdiction, it was held in the case of State v Okoye (2007) 16 NWLR Part 1061 Page 607 at 660 Para C-E per Adekeye JCA (as he then was),reading the lead judgment, as follows:
“Where a person is alleged to have committed an offence, if the initial elements of the alleged offence occurred in one state
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and the subsequent elements occurred elsewhere, the State where the initial elements of the offence occurred can try the offender, as if the subsequent elements also occurred within that State. This was even stretched further by the Supreme Court in the case of Njovens v The State (supra) relied upon by the appellant. In that if the offender afterwards enters the State where the subsequent elements occurred, he is by such entry triable in that State.
The facts of the case in Njovens v The State are that the appellants were charged and convicted by the Kwara State High Court with the offences of abatement and dishonestly receiving stolen property under the penal Code. The appellants knew of a plan to rob a bank in Bacita, Kwara State. The robbery was planned in lbadan. The robbery took place as planned in Kwara State and the money stolen was divided amongst the appellants and the robbers. On appeal against the conviction, it was argued that the trial Court erred in trying the appellants in Kwara State under the provisions of the Penal Code. The appellate Court held that the appellants were properly tried in Kwara state. It stated that the offence of
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abatement although the initial element of the offence took place in lbadan, the subsequent elements of the offence took place in Bacita, Kwara State. Since the appellants were arrested and brought to Kwara State they had entered Kwara State.
Therefore they were properly tried in Kwara State. Counsel argued that the entry of the appellants into Kwara State was involuntary as they were arrested and brought to Kwara State therefore they did not enter the State as to confer jurisdiction on the Court in Kwara State.
It was submitted that “enters” in Section 4(2)(b) of the Penal Code should be construed as voluntary entry. The Court rejected this submission and held that entry could be voluntary or involuntary. What is essential is that the offender is within the State.”
See Patrick Njovens v The State (1973) 1 NMLR Page 331 at Page 345 and Adeniji v State (2001) 13 NWLR Part 730 Page 375 at 392 ? 393 Para H-A.
The trial Court, responding to the submissions on the objections as to venue, held:
“On his part, the prosecution contended that the account on which the cheque was drawn is domiciled in Kano which gives jurisdiction to this
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Court to try the offence. The submission of the prosecution is well founded. The fact that the cheque in question was drawn from on account in Kano in my view clothes this Court with jurisdiction to try the offence and I so hold.”
In the instant case, the account upon which the cheque was drawn was domiciled in Kano, thus clothing the lower Court with jurisdiction to try the offence, I hold. In any event, by the authorities above, whether the offence took place in Kano or not, the entry of the Appellant into Kano, clothed the Kano State High Court with jurisdiction to try the offence. I also resolve the 2nd issue for determination against the Appellant.
It is a settled principle of law that where a trial Court has carried out its assignment satisfactorily, an appeal Court shall be left with no option but to affirm such a decision. See Ali v State (2015) 10 NWLR Part 1466 Page 1 at 31 Para D-H per Ogunbiyi JSC; Sule Anyegwu v Onuche (2009) 3 NWLR Part 1129 Page 659 at 674 para F-G per I.T. Muhammad JSC.
The trial Court, having carried out its assignment satisfactorily and all the issues for determination having been resolved against the
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Appellant, this Court has no option than to affirm the decision of the High Court of Kano state, delivered on 9/10/12 by Hon. Justice Dije Abdu Aboki of the Kano State High Court in Suit No: K/EFCC 12/2011.
This appeal is accordingly dismissed.
Other Citations: (2016)LCN/8868(CA)
