Benjamin Udeozor Osondu V. Federal Republic of Nigeria (2000)
LawGlobal-Hub Lead Judgment Report
EDOZIE, J.C.A.
The appellant, Benjamin Udeozor Osondu, was on 20th July, 1998 arraigned before the defunct Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal, Kano Zone II (hereinafter referred to as the Failed Banks Tribunal simplicitier) on allegations contained in an 8 count charges which as subsequently amended read as follows:-
“Count 1:
That you Benjamin Udeozor Osondu between the 2nd July, 1996 and the 5th August, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal conspired with persons unknown to commit a felony to wit, stealing the sum of $951,070.69 American Dollars, the property of PASCO (Panama) S.A and depositing it in diverse accounts at Citizens International Bank Limited, Diamond Bank Limited and Chartered Bank Limited in Lagos and thereby committed an of offence contrary to section 516 of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Count 2:
That you Benjamin Udeozor Osondu between the 28th June, 1996 and the 1st August, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and other Financial Malpractices in Banks Tribunal conspired with persons unknown to forge documents to wit, letters of instructions purporting to emanate from Emmanuel Oti and addressed to Credit Suisse Geneva and thereby committed an offence contrary to section 516 of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Court 3:
That you Benjamin Udeozor Osondu between the 2nd July, 1996 and the 5th August, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal stole the sum of $951,070.69 American Dollars, property of PASCO (Panama) S.A. which Naira equivalent you deposited in diverse accounts at Citizens International Bank Limited, Diamond Bank Limited and Chartered Bank Limited in Lagos and thereby committed an offence contrary to section 390(9) of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Count 4:
That you Benjamin Udeozor Osondu between the 28th June, 1996 and 1st August, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal forged documents to wit letters of instruction purporting to emanate from Emmanuel Oti and addressed to Credit Suisse Geneva and thereby committed an offence contrary to section 467(2)(h) of the Criminal Code Cap 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Court 5:
That you Benjamin Udeozor Osondu between the 28th June, 1996 and 5th August, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal knowingly and fraudulently uttered false documents, to wit, letters of instruction purporting to emanate from Emmanuel Oti, the sole signatory of the account of PASCO(panama) S.A. at Credit Suisse Geneva intending thereby to induce the said bank to accept as genuine the purported letters of instructions and to transfer sums amounting to $951,070.69 American Dollars from the accounts of PASCO (Panama) SA which amount you obtained fraudulently and deposited the Naira equivalent into diverse accounts at Citizens International Bank Limited, Diamond Bank Limited and Chartered Bank Limited and thereby committed an offence contrary to section 468 of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Count 6:
That you Benjamin Udeozor Osondu between the 4th February, 1996 and the 27th July, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal knowingly and fraudulently uttered false document to wit, Diamond Bank Limited and Chartered Bank Limited current account opening forms purporting them to be made by Bob-Manuel Modebe and Jerome Osita Eseka respectively, intending thereby to induce the said hanks to accept as a genuine transaction and to lodge and conceal from detection the sum of $95l,070.69 American Dollars or its Naira equivalent fraudulently obtained by you from the account of PASCO (Panama) S.A. at Suisse Credit Geneva and thereby committed an offence contrary to section 468 of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 as amended.
Count 7:
That you Benjamin Udeozor Osondu between the 12th February, 1996 and 22nd July, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal forged documents, to wit, letters of set-off addressed to Diamond Bank Limited and Chartered Bank Limited and thereby committed an offence contrary to section 467(2)(h) of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990 read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree of 1994 as amended.
Count 8:
That you Benjamin Udeozor Osondu between the 22nd February, 1996 and 22nd July, 1996 at Lagos within the jurisdiction of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal forged documents, to wit, current account opening mandate addressed to Diamond Bank Limited and Chartered Bank Limited and thereby committed an offence contrary to section 467(2)(m) of the Criminal Code, Cap. 77, Laws of the Federation of Nigeria read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree of 1994 as amended”.
The appellant pleaded not guilty to each of the above counts and in the trial that ensued the prosecution called a total of 8 witnesses and tendered several documentary exhibits. As borne out from the evidence, the facts upon which the charges are grounded may be summarised briefly as follows: The subject matter of the charge is the fraudulent withdrawal of money from a foreign bank, that is, Credit Suisse Geneva in Switzerland. The money which was in foreign currency was withdrawn from that bank from the account held by a Panamanian registered company known as PASCO (Panama) S.A. whose president and owner is a Nigerian by name Chief Emmanuel Oti (PW6) and who also is the sole operator of or signatory to the said account.
According to the prosecution, the appellant approached one Yusuf Ibrahim (PW2) and solicited for banking accounts held in foreign country representing to the said Yusuf Ibrahim that he had a brother in London who wished to transfer substantial amount of foreign currency to such account for remittance to Nigeria.
As PW2 had no such account, he approached his business colleague, Tasiu Musa Abubakar (PW3) who procured two foreign account numbers from Bieta Bala (PW4) and Abubakar Abdullahi (PW5). These accounts were held in banks in Jakarta (Indonesia) and Hong Kong respectively by PW4 and PW5 jointly with others. On various dates viz: 28/6/96, 10/7/96 and 1/8/96 the Credit Suisse Switzerland Bank (Swiss Bank for short) received letters of instructions Exhibits A7, A9 and A11 purporting to emanate from Chief Emmanuel Oti directing the transfer of the sums of $250,000, $400,000 and $300,000 American Dollars respectively from the accounts of PASCO (Panama) SA to the foreign account numbers of PW4 and PW5. The instructions were carried out. On the information by the appellant to PW2 vide telex advices, Exhibits 12 and 13 that the transfers had been effected and confirmation to that effect by PW4 and PW5, the latter, that is PW4 and PW5 then arranged to pay the equivalent amount in Naira in Nigeria of the money transferred upon an agreed exchange rate to the appellant through PW2 and PW3 who after deducting their commission paid over the balance of the proceeds to the appellant who in turn lodged the money in his several accounts with Citizens International Bank Limited Agidingbi branch, Ikeja, Lagos and from those accounts various sums were transferred to Diamond Bank Limited and Chartered Bank Limited, both in Lagos. The fraud came to light when Chief Emmanuel Oti of No. 40 Norman Williams Street, S.W. Ikoyi, Lagos called at the Swiss Bank in Geneva on 14th August, 1996 to transact business and was told that the business could not be transacted due to lack of funds in his account from which there had been several withdrawals. He was alarmed at the information and upon being shown the letters of instructions viz: Exhibits 7, 9, 11 and similar other documents, he denied their authorship. Thereafter, by his counsel, Mr. Clement Akpamgbo, SAN he lodged a report to Nigerian Deposit Insurance Corporation (NDIC) which in turn referred the matter to the Police for investigation. In the course of the investigation, the police located and arrested the appellant who made several statements. In his first statement to the Police dated 22nd March, 1997, he described himself as a marketing executive with his address at No. 17B, Ramat Crescent, Ogudu GRA, Lagos. The thrust of his defence was that it was one Charlie whose surname was not mentioned who masterminded the fraud and that although he procured the foreign account numbers in Jakarta and Hong Kong, he only came to realise the nature of the transactions when the said Charlie revealed to him that the money that was being transferred was from somebody’s account. The appellant stated that the said
Charlie was from Warri but was at one time a student of the Institute of Management and Technology, Enugu. He said that it was he, Charlie who collected the greater part of the proceeds of transfer leaving only 30% to the appellant as commission. All efforts by the Police to establish the identity of Charlie and locate his whereabouts proved abortive.
At the conclusion of the case for the prosecution, the defence made a no case submission and on its being overruled, the defence rested its case on the prosecution’s case and declined to give or call any evidence. Thereupon, the Failed Banks Tribunal Chairman, Donli J., in a reserved judgment delivered on 10th November, 1998 convicted the appellant on all the eight counts of the charge and sentenced him to ten years imprisonment in respect of each of counts 1 to 3, and 5 years imprisonment in respect of each of counts 4 to 8. The sentences were to run concurrently. In addition, the Tribunal made an order that all the movable and immovable property of the appellant be forfeited to the Government and transferred to Emmanuel Oti (PW6).
Dissatisfied with that judgment, the appellant by his counsel, lodged an appeal to the defunct Special Appeal Tribunal upon four grounds of appeal. Briefs of arguments were made on both sides. Consequent upon the provision of section 7(1) of the Tribunals (Certain Consequential Amendments, etc) Decree, No. 62 1999 which confers on the Court of Appeal the jurisdiction to hear an appeal from a person convicted under the said Decree, the appellant’s appeal was referred to this court for determination.
On the 9th May, 2000 when the appeal was heard, counsel on both sides adopted their briefs of argument with oral submissions in amplification thereof. In the appellant’s brief of argument, the following two issues were identified for the determination of the appeal:-
”2.01 Whether the 8 count charge as laid against the appellant and the evidence adduced in support of the charge are within the purview of section 3(1)(d) of the Failed Banks Decree No. 18 of 1994 as amended, such that would enable the Failed Banks Tribunal to exercise jurisdiction to hear and determine the matter.
2.02 Whether from the evidence led, the prosecution proved the guilt of the appellant beyond reasonable doubt on the 8 counts charge as laid”.
Similar issues were identified in the respondent’s brief thus:-
“3.1 Did the offences alleged against the appellant at the Failed Banks Tribunal relate to the business and operation of a bank so as to vest jurisdiction in the Failed Banks Tribunal to hear and determine the said allegations contained in the charge?
3.2 Is the judgment of the Tribunal unreasonable, unwarranted and unsupportable having regard to the evidence adduced before the Tribunal in proof of the charges brought against the appellant?”
In regard to the first issue for determination in the appellant’s brief, it was contended in the said brief that the Failed Banks Tribunal was without jurisdiction to hear and determine the 8 counts charge preferred against the appellant on the ground that the subject matter of the charge was purely a criminal matter between the appellant and Emmanuel Oti and not a matter arising from the business or operation of a bank. The 8 counts of the charge it was argued, relate to offences under the Criminal Code and that none of this is aimed by the appellant at depriving or diminishing the bank depositor’s money to justify the assumption of jurisdiction by the Failed Banks Tribunal. It was also reiterated that from the evidence before the tribunal, it was manifest that the case was not one of financial malpractice in banks, or management of the funds of a bank in any manner but the conversion or stealing of money belonging to Mr. Emmanuel Oti. Reference was made to section 3(1)(d) of Decree No. 18 of 1994 as amended. It was submitted that the section did not create an offence, rather it provides for the criminal jurisdiction of the Failed Banks Tribunal to try offences committed in the course of the business or operation of a bank. It was further submitted that from the counts of the charge as laid and the evidence adduced in support thereof, it cannot be said, however remotely, that the offences with which the appellant was charged concerned the business or operation of a bank and therefore that the tribunal chairman was in error to have found to the contrary. In support of the above submissions, learned counsel cited and relied on the case of FRN v. Abubakar (1997) FTLR 129. He also cited the following additional authority, unreported judgment of the Lagos Division of this court in appeal No.CA/L/118/98: Andrew Macaulay v. Reiffeison Zental Bank of Australia delivered on 15/3/99 to contend that since no bank in Nigeria was involved in the transaction that led to the trial of the appellant, the Failed Banks Tribunal lacked the jurisdiction to try him. Also referred to are the cases of African Newspapers of Nigeria v. Fed. Republic of Nigeria Ltd. (1985) 2 NWLR (Pt. 6) 137; (1985) All NLR 168 at pp. 183-184; Alh. Mandara v. Attorney-General of Federation (1984) 1 SCNLR 311, (1984) All NLR 219 and Federal Ministry of Internal Affairs & Ors. v. Shugaba (1982) 3 NCLR 915 in which it was submitted that section 7(2) of the Federal Revenue Court Act, 1973 was construed restrictively as it related to matters arising from the revenue of the Federation. It was urged that section 3(d) of the Failed Banks Decree No. 18 of 1994 be so restrictively construed so that the words “other offences” appearing in that section should be limited to the business or operation of a bank.
In reply to the appellant’s submission on issue one above, learned counsel for the respondent submitted in his brief that the decision of the Failed Banks Tribunal that the offences alleged against appellant in counts 1 to 8 of the charge relate to the business or operation of a bank and thus fall within the jurisdiction of the tribunal is well founded in law. In support of this stand, counsel relied on section 3(1)( d) of the Decree No. 18 -1994 and the cases of FRN v. Michael Odebode (1997) 2 FBTLR 37 at Pp. 150-151 and FRN v. Mallam S. Bello Abubakar (supra).
He argued that there is no justification whatever in seeking, as appellant’s counsel has done to limit the category of offences relating to the business or operation of a bank to only where it is a transfer from another bank without the intervention of third parties or where depositor’s money is diminished because (i) such limitation is not contained in the Decree 18 of 1994 and (ii) because indeed there are offences in respect of which no loss has occurred and yet the offences are regarded as having been committed.
The bone of contention is whether or not the Failed Banks Tribunal had the jurisdiction to entertain the counts of the charge the subject-matter of this appeal. Jurisdiction, it is said is a fundamental issue, for it is settled law that once a court does not have the jurisdiction to entertain a matter, the proceedings thereon no matter how well conducted will not confer on it a jurisdiction it never had.
It is equally the law that neither consent nor acquiescence can confer jurisdiction where none existed. See Onyema & Ors v. Oputa & Ors. (1987) 3 NWLR (Pt. 60) 259; Attorney-General of the Federation & Ors v Sode & Ors (1990) 1 NWLR (Pt.128) 500; Madukolu & Ors v Nkemdilim (1962) 1 All NLR 587; (1962) 2 SCNLR 341 and Ishola v. Ajiboye (1994) 6 NWLR(Pt. 352) 506. The Failed Banks Tribunal, the jurisdiction of which is under consideration is a creature of statute and to its enabling law must one turn to ascertain the scope or extent of its jurisdiction. In so doing, it must be borne in mind that according to the canons of statutory interpretation, the golden rule of interpretation of statutes is that the words must prima facie be given their ordinary meaning. In other words, where the words used in an enactment are plain on the face of it, their literal meaning should be given to them. See Niger Progress Ltd. v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68, Amokeodo v. I.G.P (1999) 6 NWLR (Pt. 607) 467 at 488.
It is a principle of interpretation of legislation that headings which are given to a section or group of sections of a statute cannot be relied upon to construe the plain words of the section or sections unless such words are found to be ambiguous. See Ondo State University v. Folayan (1994) 7 NWLR (Pt.354) 1 at 23.
It is common ground by counsel on both sides that the jurisdiction of the Failed Banks Tribunal in relation to the subject-matter of the charge against the appellant is as spelt out in subsection 3(1)(d) of Decree No. 18 of 1994. The subsection enacts:-
“3 (1) The Tribunal shall have power to:-
(a) …
(b) …
(c) …
(d) try other offences relating to the business or operation of a bank under any enactment.”
(Italics for emphasis)
It is not disputed that the appellant was charged with offences under the Criminal Code, Cap. 77, Laws of the Federation of Nigeria, 1990. What is in contention is whether those offences relate to the business or operation of a bank within the meaning and intendment of section 3(1)(d) of the Failed Banks Decree No. 18 of 1994. In Black’s Law Dictionary, 6th Edition at p. 146, “the business of banking” which words, in my view, are interchangeable with the “business of a bank” is defined thus:-
“The business of banking as defined by law and custom, consists in the issue of notes payable on demand intended to circulate as money when the banks are banks of issue; in receiving deposits payable on demand; in discounting commercial paper, making loans of money on collateral security; buying and selling bills of exchange, negotiating loans and dealing in negotiable securities issued by the government, state and national and municipal and other corporations. Mercantile Bank v. New York 121 US 138, 156 7 S. Ct 826, 30 LEd. 895”.
(Italics for emphasis)
The said Black’s Law Dictionary (supra) on page 1092 defines “operation” thus:
“Exertion of power; the process of operating or mode of action; an effect brought about in accordance with a definite plan, action; activity…”
From the above definitions, it seems clear that the business of a bank includes receiving deposits from customers, which deposits are payable on demand through cheques or letters of instruction, while the operation of a bank means the way or manner a bank operates or carries out its function such as by maintaining current, deposit and savings accounts and keeping of accounts of its transactions etc.
The offences for which the appellant was tried in the 8 counts charge are conspiracy, stealing, forgery and uttering of documents in respect of the fraudulent transfer of money from the Swiss Bank and the subsequent deposit of the proceeds in Citizens International Bank Limited, Diamond Bank Limited and Chartered Bank Limited in Lagos. It cannot be seriously contended that those offences do not relate to the business or operation of a bank.
In the case of FRN v. Mallam S. Bello Abubakar (supra) to which learned counsel on both sides have drawn my attention, the appellant who at the material time was the Managing Director and Chief Executive of Gamji Bank Plc was charged with offences under various sections of the Criminal Code of Lagos State in connection with dishonest transfer of his employer’s money to his personal account in a bank in London. He was tried by the Failed Banks Tribunal, Lagos zone. In an appeal to the Special Appeal Tribunal against his conviction, it was argued on his behalf that the Failed Banks Tribunal had no jurisdiction to entertain the charges against him on the ground that as ‘banking’ falls within the exclusive list in the 1979 Constitution, no State of the Federation had the legislative competence to enact a law with respect to offences relating to ‘bank’ or ‘banking’. In reaction to that submission, the Special Appeal Tribunal opined at p. 150 of the report as follows:-
“It is pertinent to note here that section 3(1)(d) of the Decree does not say that the tribunal shall have power to try ‘other offences relating to banks and banking’ but other offences relating to the business of or operation of a bank…
However, in the business or operation of a bank, offences may be committed by the director of the bank with respect to the books which a bank keeps. Such offences do not necessarily contravene the laws relating to banks and banking. But they have to do with something arising from the business or operation of a bank. Such offences may be stealing of money of the bank, fraudulent false accounting and false entries in the books of the bank…”
This interpretation is in accord with the conclusion I have reached to the effect that the offences with which the appellant in the instant case was charged fall within the ambit of section 3(1)(d) of the Failed Banks Decree No. 18, 1994 as amended.
Learned counsel to the appellant appears to have relied on the interpretation in the said case of FRN v. Mallam S. Bello Abubakar (supra) to submit that jurisdiction of the Failed Banks Tribunal will not arise if transfer were not from a bank abroad to a bank in Nigeria without the intervention of third parties. It was also contended that jurisdiction of the said tribunal was limited to cases where a bank is the victim or complainant of an offence, or the offences had the effect of diminishing the depositor’s money in the bank. With much respect to the learned counsel to the appellant, such limitations are not contained in section 3(1)(d) of Decree No. 18 of 1994 as amended.
It is a cardinal principle in the interpretation of a statute that words are not imported into a statute which are not there. See Awolowo v. Shagari (1979) 6-9 SC 51 at 90-96; Aqua Ltd v. Ondo State Sports Council (1988) 4 NWLR (Pt. 91) 622 at 641-642 and Fasakin v. Fasakin (1994) NWLR (Pt. 340) 597 at 617.
I am clearly of the view that the contention of the appellant’s counsel are not well founded. The additional authorities he referred to at the oral hearing of the appeal appear to me irrelevant and inapplicable to the facts of the case.
Before I conclude my judgment on the issue under consideration, I wish to refer to paragraph 4.20 at page 6 of the appellant’s brief with the following statement:-
“4.20. It is clear beyond doubt that the lower tribunal made an order for the recovery of Chief Emmanuel Oti’s money who is neither a bank nor a failed bank and such an order, with respect, is wrong in law and without jurisdiction”.
My short reply is that the order of the tribunal under attack was not a ground of appeal nor was it raised in any of the issues for determination. Arguments in a brief are based on issues formulated as derived from the grounds of appeal and therefore any argument not related to any issue so formulated cannot be entertained.I will therefore discountenance the point raised with respect to the order of the tribunal in question. On the whole, it is my judgment that the Failed Banks Tribunal had the requisite statutory jurisdiction to entertain the 8 count charge the subject matter of this appeal. I will therefore resolve the first issue for determination under consideration against the appellant and in favour of the respondent.
The second issue for determination in the appellant’s brief which embraces the corresponding issue in the respondent’s brief poses the question whether from the evidence led, the prosecution proved the guilt of the appellant beyond reasonable doubt in the 8 counts charge as laid.
In regard to the charge for conspiracy to steal in count 1 and conspiracy to forge letters of instruction Exhibits 7, 9 and 11 as laid in count 2, the substance of the appellant’s complaint is that there is no evidence that he was a party to a design with persons known or unknown to steal the amount stated in count 1 or forge the letters of instructions Exhibits 7, 9 and 11 as alleged in count 2. It was contended that since the prosecution successfully rebutted the appellant’s statement that he was acting in concert with one Charlie and the tribunal found as a fact that the said Charlie did not exist, the tribunal was in error to have held that the appellant must have conspired with the officers of Credit Suisse (Swiss Bank). Counsel referred to the cases of Erim v. The State (1994) 5 NWLR (pt. 346) 522 and Oladejo v. The State (1994) 6 NWLR (Pt.348) 101 at 106 to submit that in the absence of proof that the appellant acted in concert with another, the convictions under counts 1 and 2 are unsustainable. Counsel further alluded to the cases of Queen v. Wilcox (1961) 2 SCNLR 296, (1961) 1 All NLR 658; Muhammadu Duruminiya v. COP (1961) NNLR 70 to contend that the tribunal having found that Charlie alleged to have acted in concert with appellant did not exist, it was wrong for it to embark on private investigation outside the court to hold that the appellant had conspired with the officials of the Credit Suisse Bank since according to the prosecution Police investigation did not extend to that bank.
In answer to the above submissions, it was contended in the respondent’s brief that the evidence that the appellant was acting with some person or persons unknown to the prosecution was overwhelming and that the existence of conspiracy is generally a matter of inference to be deduced from certain criminal acts of the parties concerned done in pursuance of an apparent criminal purpose in common between them. The case of Daboh v. The State (1977) 5 SC 197 was alluded to.
Conspiracy is an agreement of two or more persons to do an act which it is an offence to agree to do. See Haruna v. The State (1972) 8-9 SC 174.
The crime of conspiracy is completely committed at all, the moment two or more have agreed that they will do at one or at some future time certain things. Direct evidence of an agreement is not indispensable as it is open to the trial court to infer compliancy from the fact of doing things towards a common end. See Paul Onochie v. The Republic (1966) NMLR 307.
In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other but the criminal design alleged must be common to all. Indeed, one conspirator may be in one town and the other in another town and they may never have seen each other but there would be acts on both sides which would lead the jury or the Judge sitting alone to the inference. See R. v. Meyrick & Anor (1930) 21 Cr. Appeal R. 94; Queen v. Esege (1962) 1 SCNLR 189, (1962) 1 All NLR 110; Oyediran v. Republic (1967) NMLR 122; Erim v. State (supra).
In this case, the evidence adduced by the prosecution showed that the appellant solicited for foreign banking account numbers from PW2 to whom he represented that he had a brother in London who wanted to remit money to Nigeria through the foreign account. PW4 and PW5 furnished foreign account numbers held in Jakarta and Hong Kong banks. The foreign account numbers appeared in the letters of instructions Exhs. A7, A9 and A11 addressed for the attention of Mr. Klaus Scharft and purporting to emanate from Emmanuel Oti (PW6) directing the Credit Suisse Bank, Geneva to transfer funds from the account of PASCO (Panama) S.A. to the foreign accounts in Jakarta and Hong Kong furnished by PW4 and PW5. The said letters of instructions Exhibits A7, A9 and all contained the account number of PASCO (Panama) S.A. account in Credit Suisse Bank Geneva and were despatched to that bank from Lagos according to the DHL shipment bills. The Exhibits, that is A7, A9 and all bore signatures which resemble but are different from those on the mandate of PASCO (Panama) S.A. with Credit Suisse Bank (Exhibits. C1-C19).1t is further in evidence that after the transfer of funds by the Suisse Bank, the appellant was sent a telex advice Exhibits 12 and 13 indicating that the transfer had been effected. He presented Exhibits 12 and 13 through PW2 to PW4 and PW5 and upon confirmation that their foreign accounts had been credited, the Naira equivalent of the money so credited was paid over to the appellant less, commission. In its appraisal of the evidence, the tribunal at p.26 lines 34 et seq of the judgment record reasoned thus:-
“The identity of those who worked with the accused is clearly inferable that the unknown persons were within Credit Suisse Bank itself and elsewhere for the reason that an International Bank of that repute should have seen by the naked looking of Exhibits C1 – C19 that the signatures were not the same with the signatures of Exhibits A7, A9, all and all the others shown to me in this case. I therefore hold that the accused never knew PW6 before the date of the hearing of this case and that the conspirators are unknown but may be within the Credit Suisse Bank itself”.
One pertinent question that needs to be answered is how did the account number of PASCO (Panama) S.A. in Credit Suisse Bank Geneva and the name of Mr. Klaus Scharft find their way into Exhibits A7, A9, all which originated from Lagos. Chief Emmanuel Oti (PW6) the sole signatory to that account in his evidence at p.67 lines 23, 27-29 acknowledged that he did not know his account number in Geneva and that such non-disclosure of an account number to an account holder was peculiar with Swiss bank accounts. It is reasonable to infer that it is the officials of the Credit Suisse Bank in Geneva who have access to the accounts of its customers who must have supplied the account number in question and the name of Mr. Klaus Scharft to their co-conspirators in Lagos. I am therefore inclined to agree with the tribunal that some officials in the Credit Suisse Bank were involved in the fraudulent transfers not necessarily from the point of view that they acted on Exhibits A7, A9 and A11 which might have done negligently but because the inference is irresistible that they made the account number of PASCO (Panama) S.A. in the Credit Suisse Bank available for use in the perpetration of fraud. It also seems to me that Exhibits 12 and 13 which ought to have been received by Chief Emmanuel Oti (PW6) at his No. 40 Norman William St. Ikoyi address was intercepted by unknown person and diverted to the appellant. The contention by appellant’s counsel that because the person Charlie mentioned by the appellant in his statement to the Police was found not to exist, conspiracy could not be established is not tenable. The counts of the charge were not framed on the basis that the appellant conspired with the said Charlie. It is equally preposterous to contend as the appellant’s counsel had done that because the Police investigation did not extend to the Credit Suisse Bank, the tribunal could not have found that some of the officials of the bank acted in concert in the fraudulent transfers. This is so because direct evidence is not indispensable to establish conspiracy. It can be proved circumstantially. All the relevant pieces of evidence were available for the necessary inference to be drawn.
With respect to the 3rd count of the charge alleging that the appellant stole the sum of $951,070.69 US Dollars property of PASCO (Panama) S.A., it was submitted in the appellant’s brief that the prosecution failed to prove the appellant’s guilt beyond reasonable doubt since there was no evidence as to who initiated Exhibits A7, A9 and Anor who transmitted them by DHL. In response counsel to the respondent contended in his brief that the evidence was overwhelming that the appellant acting in concert with others not known committed the offence and was rightly convicted. I am entirely in agreement with the learned counsel for the respondent that there is a strong body of evidence to sustain the conviction on count 3. There was the unchallenged evidence accepted by the tribunal to the effect that on the strength of Exhibits A7, A9 and all a total of $950,000 US Dollars was transferred from the account of PASCO (panama) S.A. in Credit Suisse Bank Geneva to bank accounts in Jakarta and Hong Kong held by PW4 and PW5 jointly with others under a pre-arrangement with the appellant to whom was paid, less commission, the Naira equivalent of the proceeds which were deposited in the appellant’s accounts with Citizens Bank, Diamond Bank and Chartered Bank. The appellant himself admitted that much except that he asserted that Charlie took a greater part of the money, an assertion which is demonstrably false. By fraudulently converting to his own use money belonging to PASCO (Panama) S.A. the appellant was guilty of stealing and was rightly convicted.
Counts 4 and 5 deal respectively with the offences of forgery and uttering of Exhibits A7, A9 and all. Learned counsel to the appellant referred to the cases of Awobotu v. State (1976) 5 SC 49 and Alake v. State (1991) 7 NWLR (Pt.205) 567 on the ingredients of the offence of forgery as provided for under section 467 of the Criminal Code. He then submitted that from the totality of the evidence led by the prosecution the offence was not proved beyond reasonable doubt as there was no evidence as to who made Exhibits A7, A9 and all. Counsel referred to the evidence of Emmanuel Oti (PW6) where he stated that the Police in Geneva did the signature analysis of the exhibits in question but that the result of the analysis was not before the tribunal. Counsel invoked the provisions of section 149(d) of the Evidence Act to submit that the only reason why the result was not tendered was that if produced it would be unfavourable to the prosecution. In regard to count 5, it was also submitted that there was no evidence as to who uttered Exhibits A7, A9 and all. Counsel cited the case of Alake v. State (supra) in support of the view that the prosecution failed to prove beyond reasonable doubt the offences alleged in count 5. Responding to the foregoing submissions, learned counsel to the respondent urged that the prosecution proved its case on both counts beyond reasonable doubt.
I agree with counsel for the appellant that a document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim,
I also agree with him that the offence of uttering is committed when a person knowingly and fraudulently utters a false document or writing or a counterfeit seal See Smart v. State (1974) II SC 173; Awabotu v, State (1976) 5 SC 49, Alake v. State (1991) 7 NWLR (Pt. 205) 567.
Like other offences, forgery and uttering may be proved by direct or circumstantial evidence of the latter, it has been said that it is evidence of surrounding circumstances which by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial: R. v. Taylor, Weaver and Donovan (1930) 21 Cr. App, R, 20, In the case in hand, the tribunal in convicting the appellant on count 4 had this to say at p.45 of the judgment records:-
“Agreed that there was no direct evidence that the accused made Exhibits A7, A9 and A11 there were circumstances that proved the accused conspired with unknown persons to commit the offence of stealing the sums stated therein in Exhibits A7, A9 and A11 and the law attributes the action of any of them including the person who forged Exhibits A7, A9 and A11 to the action of the accused. As stated in the case of Okarie v. Queen (supra), the two men or as in this case the accused and the unknown persons were hands in glove in the commission of the stealing of the various sums on Exhibits A7, A9, A11 and the forgeries committed, the action of the unknown conspirator who forged exhibits A7, A9 and A11 became the action of the accused who now denied the forgeries. He, the accused is equally guilty of the offence as charged under s. 467(2)(b) of the Criminal Code”.
That finding is impeccable and cannot be faulted, The record of proceedings shows that based on the evidence of PW6 that he did not make Exhibits A7, A9 and all and the visual examination of the signatures in those exhibits and the mandate or admitted signature and writing of PW6 on Exhibits C1 – C19 the tribunal reached the conclusion that Exhibits A7, A9 and A11 were forged. It does not appear there is any dispute about that finding. The pith of the complaint of the appellant is that there is no evidence that he made those Exhibits – A7, A9 and A 11, It will be recalled that it was the appellant who through PW2 sought foreign bank account numbers for use in transferring money to Nigeria, PW4 and PW5 supplied to him their foreign account numbers in Jakarta and Hong Kong banks.
These account numbers were inserted in Exhibits A7, A9 and A11. Who else other than the appellant could have entered the foreign account numbers in those exhibits? After the Credit Suisse Bank had complied with the directives in Exhibits A7, A9 and A11, the appellant was sent telex advices Exhibits A12 and A13 to confirm the remittance, If he was not the one who despatched Exhibits A7, A9 and A11 why were Exhibits A12 and A13 sent to him? Upon PW4 and PW5 being satisfied that their bank accounts in Jakarta and Hong Kong had been credited with the amount of money remitted by the Credit Suisse Bank, they paid the appellant the naira equivalent less commission. In my humble view, the circumstantial evidence is overwhelming and pointed irresistibly to the fact that it was the appellant himself who forged and uttered Exhibits A7, A9 and A11 or that he procured someone to forge and utter them and in either case he is guilty of committing those offences by virtue of section 7 of the Criminal Code. It is the law that where document was shown to be used as an intermediate step in a scheme of fraud in which an accused person was involved, then if it is shown that such document was false and was presented or uttered by an accused in order to gain advantage an irresistible inference exists that either the accused forged the document with his own hand or procured someone to commit the forgery. See George Abel Scott v. The King 13 WACA 25; Pearce Henshaw v. Commissioner of Police (1963) 7 ENLR 120 at 122. As it is obvious that it was the appellant who uttered the forged documents Exhibits A7, A9 and A11 and derived benefit therefrom it goes without saying that he forged those documents or procured someone to do so.
The failure by the prosecution to call a handwriting expert to show that by comparing the appellant’s admitted writing and signature in his written statement to the Police Exhibit A1 and the disputed signatures on Exhibits A7, A9 and A11 to show that appellant is the author of the Latter is not fatal to the prosecution’s case because even if there was such evidence which is negative, from the special circumstances of this case it will still open to the court to draw the inference that the appellant procured someone else to forge and utter Exhibits A7, A9 and A11. It is therefore my view that the convictions of the appellant in counts 4 and 5 are in order.
At the time the appellant collected the proceeds of the fraudulent transfers, it would appear that he had accounts only with the Citizens International Bank into which the money was deposited. Apparently, being apprehensive of the suspicion the magnitude of the account would raise, the appellant then proceeded to open accounts with the Diamond Bank and Chartered Bank and to conceal his identity in the name of Bob-Manuel Modebe and Jerome Osita Eseka respectively.
In opening these accounts, the appellant had to complete some bank forms. It is alleged that in so doing, he committed certain offences the subject-matter of counts, 6, 7 and 8 of the charge. In count 6 the appellant was charged with uttering Diamond Bank Ltd and Chartered Bank Ltd Current Account opening forms purporting them to be made by Bob-Manuel Modebe and Jerome Osita Eseka. In count 7 the charge was for forging of documents, to wit, letters of set-off addressed to Diamond bank Ltd and Chartered Bank Ltd. Count 8 was for forgery of account opening mandate addressed to Diamond Bank Ltd and Chartered Bank Ltd.
Before considering the submissions of counsel on the convictions of the appellant on those counts, that is, counts 6, 7 and 8, I wish to observe that the counts as framed are duplicitous. The forgery of one document in respect to one bank or uttering of it to that bank constitutes a separate and distinct offence. By lumping in one count the forgeries of two documents in respect to two different banks makes the counts bad for duplicity. So too is the counts for uttering two separate documents to two different banks. See R. v. Nta & Ors (1946) 12 WACA 54; Okeke v.Commissioner of Police (1948) 12 WACA 363.
It is however the law that duplicity in a charge or count does not vitiate a trial where no miscarriage of justice occurs. Ogenyi v. Inspector General of Police: (Ijoma v. Queen) (1962) 2 SCNLR 157. The foregoing is merely by way of an observation as the question of duplicity of the counts was neither raised in the tribunal nor in this court.
As noted earlier, counts 6, 7 and 8 of the charge relate to the documents used by the appellant in opening accounts in the Diamond and Chartered banks.
These documents are Exhibits G9, H12, B1 and B2. Exhibit G9 is a “Reference Form” of Diamond Bank dated 13/2/96. In it, the appellant wrote in the space for “Name of Applicant” the name Bob-Manuel Modebe with a passport photograph of himself pasted on that name. And in the space provided for ‘Referee’ he filled his real name Benjamin O. Udeozor. In the case of the Chartered Bank, the appellant also completed a “Reference Form” dated 22/7/96 Exhibit H2. Therein, he wrote the name of J. O. Eseka in the space provided for ‘Applicant’ with his passport photograph fixed to it and inserted his real name Ben O. Udeozor in the blank space for “Referee”. Exhibit B1 is the letter of set-off from Diamond Bank signed by Bob-Manuel Modebe and witnessed by the appellant Ben O. Udeozor.
In Exhibit B2, the letter of set-off from Chartered Bank it was signed by J. O. Eseka and witnessed by the appellant. The appellant appeared before the banks in question to complete the forms. The main plank of the appellant’s appeal against his convictions on counts 6, 7 and 8 of the charge is that the documents alleged to be forged in those counts were not in fact forged. Learned counsel argued that the appellant presented the documents as having been made by himself stressing that the fact that he did so under false names did not mean that the documents were purportedly made by fictitious persons. The case of Odu v. State (1965) 1 All NLR 25 at 29 was called in aid. The contention of the respondent’s counsel is that the appellant falsely represented that he and Bob-Manuel Modebe or Jerome Osita Eseka were different persons whereas, he the appellant was the one masquerading in those names and as a result the documents are forgeries.
As the counts of charge under consideration relate to the offences of forgery and uttering, it is necessary to refer to sections 465, 468 and 464(c) of the Criminal Code. The sections provide inter alia, as follows:-
“465. A person who makes a false document or writing knowing it to be false, and with intent that it may in any way be used or acted upon as genuine to the prejudice of any person, …, is said to forge the document or writing”
“468. Any person who knowingly and fraudulently utters a false document same kind and is liable to the same punishment as if he had forged the thing in question”.
“464. A document or writing is said to be false:
(a) …
(b)…
(c) if the whole or some material part of the document or writing purports to be made by or on behalf of some person who does not, in fact, exist”.
As can be seen from sections 465 and 468 of the Criminal Code, one of the essential ingredients of the offence of forgery or uttering is the falsity of the document allegedly forged or uttered and by section 464 a document is said to be false if the whole or some material part of the document purports to be made by or on behalf of some person who does not in fact exist. The narrow issue raised in the appeal against the convictions in counts 6, 7 and 8 of the charge is whether the bank forms (Exhibits G9, H12, B1 and B2) made by the appellant in the names of Bob Manuel or Jerome Osita Eseka were false documents. A similar issue arose for consideration by the Supreme Court in the Case of Odu v. State (supra). In that case of Odu v. State (supra), the appellant appeared in person at the Bank of West Africa, Uyo, gave his name as Bassey Etor and said he wished to open a savings bank account. He completed a specimen signature card in the name of Bassey Etor and also paying-in-slip for a cheque for E4,885(pounds). In convicting him for the forgery of those documents the trial Judge stated that the case “came within the principle of the cases in which it has been held that the use of a pretended name of a fictitious person amounts to forgery” and referred to Anne Lewis’ case 1754 Foster’s Crown cases 116. In allowing the appeal against his conviction, the Supreme Court per Brett, J.S.C. at pp. 131, 132 held:-
“Under section 465 of the Code, forgery consists of making a false document or writing, knowing it to be false and with the necessary intent, and section 464 defines a false document or writing as including one in which “the whole or any material part purports to be made by or on behalf of some person who does not in fact exist”. In this case, the appellant presented the two documents as having been made by himself and the fact that he did so under a false name does not mean the documents purported to be made by some person who did not exist. The officials of the Bank of West Africa at Uyo know that the person with whom they were dealing was the appellant, even if they did not know his true name, and the document did not purport to be made by or on behalf of anyone but the appellant”.
The Supreme Court referred to its earlier decision in R. v. Domingo (1963) 1 All NLR 81, (1963) SCNLR and in distinguishing it from Odu’s case held at p.132:-
“Albert Omowale Domingo was convicted of forging two applications for registration under the Registration of Business Names Ordinance by signing them in fictitious names. He never dealt personally with the Registrar Business Names as the person who was being registered as the person doing business under the registered name and the whole transaction was a sham. Having opened a bank account in the name of DAOT Stationery Supply Agency, he was convicted of forging a specimen signature card bearing the signatures of Akinola Olatunji Domingo and A. James and a mandate authorising A. James to operate the account. A. James was a fictitious person. The bank knew that Albert Omowale Domingo was the person opening the account but there was evidence which the Judge accepted, that if it had known that the names A. O. Domingo and A. James belonged to the same person, it would not have permitted the account to be opened. There was no similar evidence in the present case and the distinction between Domingo’s case and the present one lies in the fact that in the present case a known person assumed a false name in order to conceal his true identity whereas in Domingo’s case the persons with whom the registrar and the bank officials believed they were dealing or agreeing to deal were no more than characters in a work of fiction” .
As can be seen from the above extracts, there was in the signature card a representation that A. O. Domingo and A. James were two separate persons just as in the instant case there was also a representation in Exhibits G9, H12, B1 and B2 that the appellant Benjamin O. Udeozor and Bob-Manuel Modebe or J. O. Eseka were different persons. But unlike in the Domingo s case there was no evidence from the Diamond Bank and Chartered Bank that if they had known the representation to be false they would not have permitted the accounts to be opened. I am therefore inclined to agree with the learned counsel to the respondent that the facts of the instant case are more consistent with the principles in Odu’s case (supra). I am of the view that the documents in question are not false documents and the appellant could not have been convicted for forgery and uttering them.
In answer to the question posed in the second issue for determination, it is my view that the prosecution proved the guilt of the appellant beyond reasonable doubt in counts 1, 2, 3, 4 and 5 but failed to do so in respect of counts 6, 7 and 8 of the charge.
On the whole, this appeal is partially allowed. The convictions and sentences in counts 1, 2, 3, 4 and 5 are affirmed. The convictions and sentences in counts 6, 7 and 8 are set aside. The appellant is discharged and acquitted in counts 6, 7 and 8.
Other Citations: (2000)LCN/0858(CA)
