Dr. Edwin Udemegbunam Onwudiwe V.federal Republic Of Nigeria (2006)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
This is an appeal against the judgment of the Court of Appeal Lagos Division delivered on the 15/1/2003 whereby the appellant’s appeal against his convictions and sentences by the failed Bank’s Tribunal Zone IV Lagos, Edokpayi J (as he then was) was dismissed. The appellant and one other were arraigned before the Failed Banks Tribunal Zone IV, Lagos. The appellant was specifically concerned in the amended charge with the following counts:-
“Count 1
That you, Dr. Edwin Udemegbunam Onwudiwe and you, Joe Billy Ekwunife while being the chairman and Managing Director/Chief Executive respectively of Ivory Merchant Bank Ltd. on or about the 23/8/1994 at Lagos conspired together to fraudulently convert the proceeds of a Crystal Bank of Africa Ltd. Bank certified cheque No. 66114 issued in favour of Ivory Merchant Bank Ltd. for the sum of N16.56 million to the use and benefit of Dr. Edwin Udemegbunam Onwudiwe and thereby committed an offence punishable under section 516 of the criminal code Act (cap 77 LFN 1990) read in conjunction with section 3(1)(d) of the Failed Banks (Recovery of Debts) and financial malpractices in Banks decree No.18 of 1994.
Counts 3
That you, Dr. Edwin Udemegbunam Onwudiwe while being the Chairman of Ivory merchant Bank Ltd. on or about the 23/8/1994 at Lagos stole by fraudulently converting to your own use and benefit the proceeds of a Crystal Bank of Africa Ltd. certified cheque No. 66114 issued in favour of Ivory Merchant Bank Ltd in the sum of N16.56 million, and thereby committed an offence punishable under section 390(7) of the Criminal Code Act read in conjunction with section 3(1)(d) of Decree No.18 of 1994.
Count 5
That you, Dr. Edwin Udemegbunam Onwudiwe while being the chairman of Ivory merchant Bank Ltd. on or about the 23/8/1994 at Lagos with intent to defraud falsely represented to partnership investment company Ltd. that Ivory Merchant Ltd. had the sum of 345,000 US Dollars available for sale and thereby induced partnership investment company Ltd. to deliver to you Crystal Bank of Africa Ltd. Certified cheque No. 66114 for the sum of N16.5 million issued in favour of Ivory Merchant Bank Ltd, the proceeds of which you dishonestly obtained and appropriated to your own use and benefit, and thereby committed an offence under section 419 of the Criminal Code Act read together with section 3(1)(d) of Decree 18 of 1994.
Count 6
That you, Dr. Edwin Udegbunam Onwudiwe while being the Chairman/Director of Ivory Merchant Bank Ltd. on or about the 29/7/1994 at Lagos, failed to take all reasonable steps to secure compliance by Ivory Merchant Bank Ltd. with the requirement of the Banks and other Financial Institutions Decree No.25 of 1991 by permitting to be outstanding in your account No.211703008 operated at Ivory Merchant Bank Ltd unsecured advances/loans/credit facilities amounting to N2,853,189.33, without prior approval in writing of the Central Bank of Nigeria, and thereby committed an offence contrary to section 20(2)(a) of the Banks and other Financial Institutions Decree No.25 of 1991 and punishable under section 46(a) of the same Decree read together with section 3(1)(c) of Decree No. 18 of 1994.
Count 7
That you, Dr. Edwin Udemegbunam Onwudiwe and you, Joe Billy Ekwunife while being the chairman and the Managing Director/Chief Executive respectively of Ivory Merchant Bank Ltd. on or about the 23/8/1994 at Lagos conspired together to engage in unlawful activity and corruptly enriched the first accused Dr. Edwin Udemegbunam Onwudiwe by fraudulently converting the proceeds of Crystal Bank of Africa Ltd. bank certified cheque No. 66114 issue in favour of Ivory Merchant Bank Ltd. in the sum of N16.56 million to the use and benefit of the 1st accused, thereby committed an offence contrary to section 1(2)(d) of the Recovery of Public Property (Special Military Tribunals) Act Cap.389 LFN 1990 and punishable under section 13(1) of the said Act as amended by the Recovery of Public Property (Special Military Tribunal) Amendment Decree No.33 of 1991, and read together with section 3(1)(d) of Decree No.18 of 1994.
Count 8
That you, Dr. Edwin Udemegbunam Onwudiwe while being the chairman of Ivory Merchant Bank Ltd. on or about the 24/8/1994 at Lagos did corruptly enrich yourself and engage in unlawful activity by converting the proceeds of the said bank certified cheque No. 66114 issued in favour of Ivory Merchant Bank Ltd, to your own use and benefit, and thereby committed an offence punishable under Section 13(1)(a) of Recovery of Public Property (Special Military Tribunals) Act Cap 389, LFN 1990 as amended by the Recovery of Public Property (Special Military Tribunals) Amendment Decree 1991 and read together with section 3(1)(d) of Decree No.18 of 1994.”
The appellant pleaded not guilty to the counts concerning him which I have reproduced above. To establish their case the prosecution called eight witnesses and the appellant testified and called four other witnesses. At the end of the trial and in its judgment, on 11/11/1998 the tribunal found the appellant guilty on counts 3, 5, 6 and 8, and the tribunal imposed the following sentences against the appellant:
“Count 3
1st accused/convict is sentenced to N50,000 as fine, or in the alternative to 18 months imprisonment with hard labour.
Count 5
The 1st accused/convict is hereby sentenced to 2 years imprisonment without the option of a fine.
Count 6
No sentence is imposed.
Count 8
No sentence is imposed.
The sentences passed are hereby ordered to run concurrently from today.
The appellant felt unhappy with the decision and appealed to the Court of Appeal. The amended Notice of Appeal contained 16 grounds of appeal out of which the appellant submitted thirteen issues arising for the determination of the appeal.
The Court of Appeal rightly in my view after considering the verbosity and the prolixity of the issues formulated by the parties narrowed the real issue in controversy to 5 and these are:
“1. Whether the lower tribunal has jurisdiction to entertain the offences set out in counts 3, 5 and 8 of the charge which respectively relate to theft, obtaining money by false pretences and corrupt enrichment.
- Whether the prosecution established the offences of 404 receiving money by false pretences, corrupt enrichment and stealing.
- Whether the appellant is a public officer within the meaning of Recovery of Public Property (Special Military Tribunal) Decree.
- Whether the entire proceedings together with the judgment and order of the lower tribunal are null and void.
- Whether the sentences imposed on the appellant are not excessive.”
After the consideration of the submissions of counsel and the briefs, the Court of Appeal, in its judgment delivered on the 15/1/2003, found in favour of the appellant on issue No.3, but in the main, found no merit in the appeal and the appeal was accordingly dismissed and the conviction and sentences imposed by the tribunal were affirmed. This now, is a further appeal by the appellant to this court. The notice of appeal contains four grounds of appeal and bereft of their particulars, they read as follows:
“1. The learned justices of the Court of Appeal erred in law when they held that “the instant case, the subject matter of the case in the trial tribunal was patently within the embrace of the different legislations which conferred jurisdiction to try the different offences for which the appellant was convicted.
- The learned justices of the Court of Appeal erred in law when they “arrived at the conclusion that the convictions and sentences based on the offences of stealing, obtaining by false pretences and corrupt enrichment were valid when the established facts cannot amount to stealing or obtaining by false pretences or corrupt enrichment in law.”
- The learned justices of the Court of Appeal erred in law when they affirmed the judgment of the failed banks tribunal convicting the appellant for the offence of failing to take reasonable steps to secure compliance by Ivory Merchant Bank Ltd. with the requirements of banks and other financial institutions Decree No.25 of 1991 (now Act) Under Section 20(6) and punishable under section 46(a) of the same Decree, as charged in Count 6 of the (information) charge.”
- The learned justices of the Court of Appeal erred in law in confirming the order of the Failed Banks Tribunal confiscating the appellant’s assets and properties under section 20 of Decree No.18 of 1994 as amended.”
The reliefs sought by the appellant from this court is for (1) an order setting aside the conviction and sentence of the appellant and to enter instead an order of discharge and acquittal of the appellant in respect of counts 3, 5, 6 and 8 (2) an order releasing the confiscated assets and properties of the appellant to him.
Before the examination of the issues submitted for the determination of the appeal, it is convenient at this stage to set out the back ground facts of the case.
The facts put shortly are that: On or about the 16th of August 1994, the appellant who was at the material time, the chairman of Ivory Merchant Bank Ltd. had a meeting with one Mrs. Nkechi Justina Nwaogu, an ex-banker who was the Managing Director of a company called Liberal Investment Limited, the said meeting took place at a restaurant called Ndafia Restaurant, 39, Milverton Road, Aba. The said Mrs. Nkechi Justina Nwaogu who testified as P.W.1 told the trial tribunal, that the appellant told her that he was in Aba to look for a buyer for some foreign exchange belonging to the bank in an offshore account. That the bank has one million US Dollars for sale but that what was available for immediate disposal was the sum of $345,000.00 US Dollars and that the bank wanted to conduct the transaction discreetly without attracting publicity as the bank was trying to shore up its revenue base. They agreed that the sum of N16.56 million was the equivalent of the 345,000 US Dollars, the bank wanted to sell. It was further agreed that if P.W.1 could find a buyer for the dollars she would be entitled to brokerage fees. The appellant denied in his evidence that he was representing the Ivory Merchant Bank Ltd. in the matter of the sale of the foreign exchange. He insisted he was acting in his private capacity, and the transaction had nothing to do with the bank. P.W.1 initially located an Indian business man in Lagos who was willing to buy the foreign exchange. The Indian made a bank draft for the sum of N16.56 million being the agreed naira equivalent and gave a photocopy of the draft to P.W.1 insisting that the original would only be released after the foreign exchange is credited to his account abroad. The appellant refused and insisted on an immediate payment of the Naira equivalent in the sum of N16.56 million. Thereafter, P.W.1 approached Partnership Investment Limited who accepted to pay for the dollars immediately as requested by the appellant. They raised a bank draft issued by CRYSTAL BANK OF AFRICA LTD. in the sum of N16.56 million in the name of IVORY MERCHANT BANK LTD. The said draft was “crossed and marked, Not Negotiable Account Payee Only.” PW.1 testified further that it was the appellant who requested that the draft be in the name of the Ivory Merchant Bank Ltd and that all the parties were under the impression that they were dealing with the Ivory Merchant Bank Ltd. On the 23/8/1994, P.W.1 and an official of the Partnership Investment Ltd. visited the premises of the Ivory Merchant Bank Ltd. and there handed to the appellant the draft exhibit C. Although exhibit C was in name of Ivory Merchant Bank and was crossed and marked “Not Negotiable, Account Payee only” yet it was paid into the private account of the appellant with Ivory Merchant Bank which then had a debit balance.
The appellant paid the said draft exhibit C into his private account together with a letter to the bank indicating how he wanted the said money disbursed. The appellant withdrew the rest of the money from the account and left a debit balance. On the 5/9/1994, when Partnership investment Limited still did not receive the foreign exchange, it demanded a receipt from the appellant, the appellant obliged by issuing exhibit G. On the 19/10/994, the appellant in purported refund of the principal amount of N16.56 million plus interest issued a cheque to the aforesaid company, but the cheque was dishonoured. Investigations carried out by the Central Bank of Nigeria, Nigeria Deposit Insurance Cooperation and the Directors of Ivory Merchant Bank Ltd. on the petition of Partnership Investment Ltd. when they failed to get the foreign exchange or the refund of their money and interest, revealed that the appellant was dubiously acting alone in the transaction. The Ivory Merchant Bank Ltd. refused to accept responsibility for the refund and or the fraud.
Partnership Investment Limited went to Court and obtained judgment in the sum of N21 million against both the appellant and Ivory Merchant Bank Ltd. The Company levied execution by way of garnishee proceedings and thereby forced Ivory Merchant Bank Ltd to refund to it the sum of N16.56 million. Following the bad publicity which was generated by this scandalous transaction, Ivory Merchant Bank Ltd. became distressed and eventually went into liquidation leaving the depositors of the bank in financial losses. Now, in his brief for the appellant, the learned counsel has identified formulated and submitted to this court the following issues arising for the determination of the appeal:
- Whether the Court of Appeal was right in holding that the subject matter of the charge brought before the Failed Bank Tribunal was within the jurisdiction of the failed Bank Tribunal.
- Whether the court of Appeal was right when it arrived at the conclusion that the offences of stealing, obtaining by false pretences and corrupt enrichment and failing to secure compliance with section 20(6) of Banks And Other Financial Institutions Decree No.25 was established at the Tribunal.
- Whether the Court of Appeal was right in confirming the Order of the Tribunal confiscating the appellant’s assets and properties.”
The Learned Counsel for the respondent formulated similar issues for the determination of the appeal. I shall now deal with the issues serially as they appear in the appellant’s brief.
Issue 1
The main complaint in this issue is that the subject matter of the criminal charges was not within the jurisdiction of the Failed Banks Tribunal and by virtue of the decisions in Eyorokoromo v. The State (1979) 6/9 SC 3 as approved in Adeoye v. The State (1999) 6 NWLR (Pt.605) 74 at 87 if the submission is upheld, the trial in this matter is a nullity. See Republic of Nigeria v. Lord Chief Ifegwu (2003) 15 NWLR (Pt.842) 113 and Nasiru v. Commissioner of Police (1980) 12 NSCC 42. Where a charge was framed by a Court which has no jurisdiction to try the matter, it was decided that no matter how well the trial was conducted, the trial was a nullity, see Omale v. Commissioner of Police (1969) NMLR 125, Sule Buba v. Commissioner of Police (1974) NMLR 139; see Eze v. Federal Republic of Nigeria (1987) NSCC Vol. 18 244, (1987) 1 NWLR (Pt.51) 506. See also Emu v. State (1980) 2 NCR 297.
It is submitted that in the instant case the appellant was charged with the offences set out and punishable under the provisions of the Criminal Code Act Cap 77 of Laws of the Federation and in order to arraign the appellant before the Failed Banks Tribunal, the charges were read along and together with section 3(1)(d) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994. It is submitted that, there was no evidence that the appellant was a banker or that the transaction was a banking business and consequently the tribunal had no jurisdiction on the charge on count No.6. It is again submitted that since the alleged offences were said to have been committed on the 23/8/1994, the Failed Banks Tribunal was not in existence at the time the offences were alleged to have been committed, the Tribunal has no jurisdiction to entertain the charge. The Tribunal was established under Decree No.18 of 1994 on the 9/11/1994. See FRN v. Ifegwu supra. See also Section 35(3) of 1979 Constitution. See also Sofekun v. Akinyemi (1980) 57 SC.; 1980 NSCC Vol. 12 page 175 at 187.
It is again argued that the appellant has suffered a grave miscarriage of justice when the Failed Banks Decree No.18 of 1994 was made to be retrospective in its effect and the right of the appellant to a fair trial in the ordinary courts of the land was denied him. It is further stressed that no statute can be construed or constructed to have retrospective operation unless the language of the statute plainly requires such construction and Decree No.18 of 1994 manifestly was not intended to be retrospective in its operation and application. It is again stressed that the appellant has suffered miscarriage of justice when he was subjected to the draconian and rigid provisions which contains even a presumption of guilt. It is further argued that the Court of Appeal misdirected itself in its appraisal of the evidence and its findings of fact that the appellant approached P.W.1 to source for a buyer of the dollars belonging to the Ivory Merchant Bank. It is submitted that the trial court found no proof and that the negotiations did not take place in the premises of Ivory Merchant Bank Ltd. and that the trial Court has found as a fact that the transaction for which the Crystal Bank cheque for N16.56 million was paid to the appellant was a private business transaction and did not concern the bank. It is again argued that the appellant was not a staff of the Ivory Merchant Bank and the cheque was merely received by the bank in the ordinary course of its business and it merely cleared the cheque and disbursed its proceeds on the instruction of the owner, the appellant. The sum total of these is that no offence particularly in Counts 3 and 8 were committed in the course of the operation of the Ivory Merchant Bank and therefore no stealing was established under Count 3. It was the same evidence used to acquit the 2nd accused, which was used to convict the appellant in counts 3 and 5. See Akpan & others v. The State (2002) 12 NWLR (Pt.780) 189 at 240.
It is again submitted that the Failed Banks Tribunal had no jurisdiction to entertain the complaint in Count 8. Learned Counsel referred to the cases of Epereokun & Others v. University of Lagos (1986) 4 NWLR (Pt.34) 162 at 184, Schroder and Company v. Major and Co. Nig. Ltd. (1989) 2 NWLR (Pt.1) 1 at 13. It is finally submitted that the Banks and other Financial Institutions Decree (BOFID) No.25 of 1991 only provided for offences relating to banks and banking business, the alleged offence in count 6 was not proved at all.
The learned counsel for the respondent on the other hand submit that both the trial Tribunal and the Court of Appeal were right in holding that the trial Tribunal had the jurisdiction to entertain the matter under section 3(1)(d) of the Failed Banks Decree No.18 of 1994. Learned Counsel referred to the case of Akwule v. The Queen (1963) NSCC 157. The appellant was tried and convicted on the offences created by the Criminal Code and the Decrees which the tribunal had jurisdiction to try under section 3(1)(d) of Decree No.18 of 1994.
Similarly, the tribunal had the Jurisdiction to try and convict for unjust enrichment both under the Criminal Code, and Recovery of Public Property (Special Military Tribunals) Act Cap 389 as amended by Decree No.33 of 1991.
It is again submitted that the appellant was not tried for offences created at the time of the alleged commission of the offences, he was tried for offences under Criminal Code Act and Recovery of Public Property Decree. He was not tried under the offences created by Decree No.18 of 1994. The Decree merely established the Tribunal to try the offences but did not specifically create the offences for which the appellant was charged and convicted. The other offences for which the appellant was tried were created by BOFID No.25 of 1991. The appellant committed these offences for which he was arraigned in August 1994 long after the enactments had come into existence. Section 3(1)(d) of Decree No.18 of 1994 however specifically gave the tribunals the jurisdiction to try the offences created by other enactments in so far as the transaction had something to do with the business or operation of a bank.
Now, as mentioned above both the tribunal and Court of Appeal dealt at length with the issue of the jurisdiction of the tribunal to deal with the counts brought against the appellant. In the first issue the appellant has again raised the issue of the Jurisdiction of the tribunal to adjudicate on the matter brought before it. It was argued that the appellant was arraigned for offences created under criminal Code of stealing, obtaining by false pretences and unjust enrichment. In my view the offences do not relate to banks and banking but clearly relate to the business and operation of a bank. See Akwule v. Queen supra. The transaction leading to the charges arose out of the operation of the business of the Ivory Merchant Bank and it clearly falls within the provision of section 3(1) of Decree No.18 of 1994. For the sake of clarity I reproduce section 3.
“3(1) The tribunal shall have power to
(a) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(b) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(c) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
(d) try other offences relating to the business or operation of a Bank under any enactment
(emphasis mine)
It was not disputed that the appellant was the Chairman of Ivory Merchant Bank Ltd. at the time material for the commission of the offences for which he was charged and convicted. It was also not in dispute that he as chairman according to PW.1 though he denied it, approached her and solicited her assistance for the sale of US 345,000, Dollars belonging to the bank, in its offshore account. The purpose of sale of dollars was to “shore up” the capital base of Ivory Merchant Bank. It was also to be done secretly to avoid publicity. Eventually, PW.1 found a buyer and both the buyer and P.W.1 were convinced that the appellant was acting on behalf of the bank. When the deal was finally struck a bank draft was issued to the Ivory Merchant Bank and was marked “Not negotiable and account payee only.” The appellant abused his position and caused the crossed aforesaid bank draft to be paid into his personal account and thereafter used the proceeds for his own use. All these transactions were carried out in the cause of banking business or operation. The Court of Appeal was correct when it held in its judgment at page 431 of the record thus:-
“It is obvious from the foregoing that the acts of the appellant were criminal in fact and indeed. A close look at counts 3, 4, 5, 6, 7, 8 and 9 of the charges on which the appellant was arraigned were brought and convicted under section 390(7) of the Criminal Code Act, Section 20(1)(a) of Failed Banks (Recovery of Debts and Financial Malpractices in Banks) Decree No.18 of 1994, Section 1 (29)(d) of Recovery of Public Property Nigerian Weekly Law Reports 17 July, 2006 (Musdapher, J.S.C.) (Special Military Tribunals) Act Cap 389 as amended xxxxxxxxx by Decree No.33 of 1991. All the enumerated laws were exact at the time of the transaction in issue. Each of those Counts stated that the enabling Legislation is read along with section 3(1)(d) of Decree No.18 of 1994. The question is: Did the inclusion of section 3(1)(d) of Decree No.18 of 1994 mean that the appellant was tried and convicted under it I am of the view that the reference to that provision of Decree No.18 of 1994 is to stress on the fact that the Failed Banks Tribunal in trying offenders in Financial Institutions under any other enactments such as those already mentioned should be satisfied that those offences relate to business or operation of the bank xxxxxxxxx.”
In effect, the provision confers jurisdiction and power on the tribunal to try other offences not specified in the Decree. There is no doubt that where a court or tribunal has no jurisdiction to adjudicate on a matter the trial and conviction by the tribunal lacking jurisdiction is a nullity no matter how well the trial was conducted. But in the instant case, the subject matter before the tribunal was patently within its jurisdiction under the different legislation when the offences were committed in the course of business or operation of a bank by virtue of section 3(1)(d) of Decree No.18 of 1994. In my view, the fact that the procedure under the Tribunal differs from the procedure under the High Court exercising criminal jurisdiction is of no moment. There was no doubt that the legislation was promulgated under the Military rule for the purposes of dealing with the malpractices prevalent at the time. Special courts were set up to deal with such issues and the issue of miscarriage of justice or that the appellant was made to suffer draconian criminal procedure is irrelevant. The facts are very clear, the appellant with animus furandi dubiously induced Partnership investment Ltd. to part with the sum of N16.56 million. He falsely represented to them that Ivory Merchant Bank had 345,000 US Dollars to sell. The purchase price was in a form of a draft crossed and marked “not negotiable and account payee only” in the name of Ivory Merchant Bank, yet the appellant was able to abuse his office as chairman of Ivory Merchant Bank to pay the draft into his personal account and immediately use the money himself. This conduct at the end of the day prejudicially affected Ivory Merchant Bank leading to its liquidation. In my view, the tribunal had the jurisdiction to try the appellant. I accordingly resolve issue No.1 against the appellant.
Issue 2
The gravamen of this issue is that the ingredients of the offences convicted were not proved by the evidence adduced at the trial and the Court of Appeal was wrong to have affirmed the convictions. It is submitted that the fundamental element in charge of stealing under section 390(7) of the Criminal Code is that the accused is an officer of the company or body corporate where article is stolen. It is argued that the charge in count 3 was that the appellant fraudulently converted the proceeds of a cheque issued in favour of Ivory Merchant Bank Ltd. while the evidence revealed that the money belonged to Partnership Investment Company Ltd. and not the Ivory Merchant Bank Ltd. It is argued that the appellant even gave a receipt to Partnership Investment Company for the money and that there was no evidence that the appellant fraudulently converted the money, Partnership Investment Company willingly and voluntarily handed the cheque to the appellant. Learned Counsel rely on the cases of Edo and Another v. Commissioner of Police (1962) All NLR (Pt.1) 92, (1962) 1 SCNLR 162; Smart v. The State (1974) All NLR 373. It is further argued that in a charge of obtaining by false pretences, it must be shown the existence and the nature of the false pretence. It is submitted that vital witnesses who took part in the transaction were not called to throw more light into what actually took place. Learned counsel referred to the cases of State v. Godfrey Ajie (2000) 11 NWLR (Pt.678) 434; Akono v. The Nigerian Army (2000) 14 NWLR (Pt.687) 318; Nwokedi v. Commissioner of Police Vol.11 NSCC 127; Ubani v. State (2003) 18 NWLR (Pt.851) 224.
It is further submitted that the charge on count 8 was defective because it did not state what provision of the law the appellant offended. It is submitted that the appellant in the instant case was only charged and convicted under a punishment section and not under the definition section. It is argued that the appellant was misled vide Abacha v. State (2002) II NWLR (Pt.779) 437; F.R.N. v. Ifegwu (2003) 15 NWLR (Pt.842) 113 at 214. It is again submitted that the offence under section 20(2)(a) of BOFID for which appellant was charged and convicted, can only be committed by a bank, in this case the Ivory Merchant Bank and not the appellant. The appellant was convicted for an offence not known to law.
The learned counsel for the respondent on the other hand, argued that both courts were right in holding that the appellant was properly convicted for the offences of stealing, obtaining by false pretences, corrupt enrichment and obtaining unauthorised credit as defined in the Criminal Code and the other enactments. It is submitted that on the accepted facts, even if, as claimed by the appellant that he was not acting on behalf of Ivory Merchant Bank, but in his own behalf, there was false pretences, when he represented to P.W1 and to Partnership Investment Co. Ltd. that he had 345,000 US Dollar for sale. It was not in doubt that at the time of the representation neither the appellant nor the bank had any dollars for sale. Learned Counsel referred to Alake & Anor v. The State (1991) 7 NWLR (Pt.205) 567 in support of the proof of obtaining by false pretences. The appellant’s claim that he was duped by Dr. Lacey was not believed by the lower courts for obvious reasons as P.W.6 Mr. Ahmed Fari Yusuf a police officer testified “My investigation showed that one Dr. Lacey referred to by the 1st accused in his statement in exhibit 1A was a faceless person as he did not exist.”
On the question of stealing and intention to defraud, it is submitted that evidence was abound, that neither the appellant nor the bank had any dollars to sell when he made the victim to part with N16.5 million naira. The draft was in the name of Ivory Merchant Bank Ltd. and was crossed and marked “Not negotiable, account payee only”. Yet the appellant caused the draft to be paid into his personal account and quickly issued a covering letter directing how he wanted the proceeds disbursed and within 24 hours the appellant had withdrawn N9.5 million. The article stolen was money and it was capable and was indeed stolen as it was not made in favour of the appellant but in favour of Ivory Merchant Bank. It is again submitted that evidence was abound that the appellant unlawfully and fraudulently caused the owners to part with their money. An offence under section 390 (7) of the Criminal Code read along with section 3(1)(d) of Decree No.18 has been committed by the appellant. See Ekuma, Ogunte & Anor v. Commissioner of Police (1963) All NLR 290, (1963) 2 SCNLR 205; Adewusi v. The Queen (1963) All NLR 322, (1963) 2 SCNLR 245.
It is again argued that the appellant was equally lightly convicted of the offence of Corrupt enrichment under the provisions of section 13(1)(a) of the Recovery of Public Property [Special Military Tribunals] Act Cap 389, LFN 1990 as amended by Decree No.33 of 1991 read along with section 3(1)(d) of Failed Banks Decree No.18 of 1994. By the latter amendment, it was not necessary that an accused person be a public officer, the offence can be committed by a private person such as the appellant who was Chairman of Ivory Merchant Bank Ltd. There was no dispute that the appellant corruptly enriched himself in the transaction.
It is further argued that by paying the draft into his account, the appellant as the Director and Chairman of the bank without collateral and without written approval of the Central Bank of Nigeria, settled the debit balance in his personal account through the unlawful conversion of the draft for which he was not the beneficiary. Now, this second issue, essentially deals and relates to the findings of fact i.e. whether, the appellant was rightly convicted for the offences of stealing, obtaining by false pretences, corrupt enrichment and obtaining credit by unlawful means on the evidence adduced. It is evident that these are concurrent findings of fact by the two lower courts and to upturn a concurrent and consistent finding of fact by appeal court, an appellant has an up hill task. There must be exceptional circumstances. See Sobakin v. The State (1981) 3-4 SC 31. The rationale for the view that concurrent findings of facts in two lower courts ought to be invariably accepted is that the courts are presumed to have considered all the facts necessary for their coming to such findings. Thus, findings of facts made by High Court in a trial and affirmed on appeal by the Court of Appeal cannot be reopened in this court in the absence of special circumstances. Unless it is shown that there exists the violation of some principle of law or of procedure and must be such an erroneous proposition of law or of procedure, that if such proposition be corrected the finding cannot stand. The Supreme Court may only interfere with the concurrent findings of facts where the circumstances are such that the findings of fact are patently erroneous and would amount to a travesty of justice to allow the findings to stand.
I have myself examined the evidence and have come to the inevitable conclusion, that the prosecution established beyond any dispute that the appellant fraudulently represented to the victims that the bank of which he was the Chairman, had American dollars to sell. He so fraudulently induced the victims to issue a crossed draft in the name of the bank with the security “not negotiable and account payee only” added to it. The appellant abused his position and caused the cheque to be paid into his personal account and he converted the proceeds to his own use. But in my view these facts glaringly reveal the offences for which the appellant was convicted. I also find no merit in the complaints in issue No.2. I resolve it against the appellant.
Issue No.3
This issue is concerned with the validity of the sentences imposed on the appellant, particularly the issue of confiscation of the appellant’s properties as affirmed by the Court of Appeal. It is submitted that the lower courts acted erroneously and also contrary to section 25 of the Interpretation Act when the appellant was sentenced and punished twice under the provisions of sections 390(7) and section 419 of the Criminal Code, by imprisonment and forfeiture. It is submitted that none of the above sections provides for forfeiture as a form of punishment after conviction. The court of Appeal acted in error when it confirmed the order of forfeiture made by the learned trial Judge. Learned Counsel referred to the case of Akosa v. Commissioner of Police 13 WACA 43. It is argued that the sentence of fine and imprisonment under the Criminal Code was sufficient and the order of forfeiture amount to double punishment. It is again argued that since the appellant was not convicted under the provisions of section 19 of Decree No.18 of 1994, the provisions of section 20 thereof cannot be invoked to order forfeiture. See Mohammedu Tsofoli v. Commissioner of Police (1971) All NLR 338. The order for forfeiture ought to be set aside since there was no statutory justification for it.
Now, there is no doubt that the Tribunal had the jurisdiction to order confiscation of property where an accused was found guilty of an offence under section 20 of Decree No.18 of 1994 which also sets out the penalties for conviction under Cap 389 of 1990 LFN as amended. Section 20(5) of Decree No.18 provides:
“5. Where by reason of the confiscation or voluntary surrender of property, under this section, there is full or substantial recovery of the amount involved in the offence, the tribunal may, if it deems it equitable, reduce or decline to impose the penalty specified in subsection (1) of this section.”
It was because of the voluntary surrender made by the appellant that the tribunal was very lenient to him while passing the sentence. Learned trial Judge as shown above in this judgment declined to pass any sentence on counts 6 and 8 even though the appellant was found guilty thereof. The Tribunal rightly in my view held:
“xxxxxxxx I shall, however, mitigate the sentences passed on the 1st accused/convict having regard to the voluntary surrender of his hospitals at No.9 Anoko Street, Owerri, Imo State and that No.28 Ekulu Layout, Enugu in Enugu State, both of which have just been confiscated to Ivory Merchant Bank Ltd. xxxxx”
In my view, there was no double punishment. As a matter of fact the Tribunal did not impose any sentence on the appellant on counts 6 and 8 for which the appellant was convicted. The Tribunal did not do so in view of the discretion it has under section 20(5) recited above.
It was indeed on the application of his lawyer during allocotus, that the solicitor voluntarily on behalf of the appellant surrendered the properties to the victim of the crime Ivory Merchant Bank Ltd which bank was forced to pay the N16.56 million to Partnership Investment Ltd. As mentioned above, there was no double punishment and I also accordingly find no merit in this complaint, I resolve the issue against the appellant.
In the result, all the issues having been resolved against the appellant, this appeal fails and is dismissed by me. I also affirm the convictions and sentences imposed as affirmed by the Court below.
SC.41/2003
