Mufutau Olaniyi Abiodun V. Federal Republic Of Nigeria (2008)
LawGlobal-Hub Lead Judgment Report
HELEN MORONKEJI OGUNWUMIJU, J.C.A
This is an appeal against the judgment of the Failed Banks (Recovery of Debt) and Financial Malpractices in Banks Tribunal Lagos Zone II, Lagos delivered by Hon. Justice M. A. Ope-Agbe as Chairman on 3rd July 1998. The Appellant was the 1st Accused on a two count charge. The first count was that he fraudulently granted unauthorised and unsecured credit facilities to several customers of Nigeria-Arab Bank Ltd Odeda Branch between 1992-1993 to the aggregate tune of N15,598.782.09 (Five Million, Five Hundred and Ninety Eight Thousand, Seven Hundred and Eighty-Two Naira, Nine kobo) contrary and punishable under S.18(1) (B) of the Banks and Other Financial Institutions Decree No. 25 of 1991 read in conjunction with S.3(1) (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994. The second count was that the Appellant with intent to mislead the management of the bank falsified, altered the current balances of the customers of the branch and the CBN account of the branch contrary and punishable under S. 435(2) of the Criminal Code read together with S. 3(1) (D) of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994.
At the trial, the prosecution called five witnesses and the Appellant called a witness DW2 and gave evidence as DW1.
The Appellant was discharged and acquitted on count 2 but convicted on count I, hence this appeal.
The Appellant’s counsel, Chief Imadegbelo SAN identified 2 issues for determination. They are stated below:-
(1) Whether the Tribunal had the jurisdiction to try and convict the Appellant.
(2) Whether the prosecution proved its case beyond reasonable doubt against the Appellant.
The Respondent’s counsel Mr. G.M. Oguntade also agreed to proffer arguments on the issues as formulated by the Appellant’s counsel.
However, the Respondent’s brief contained some objections against the grounds of appeal. The usual practice recognized by the rules of court for raising a preliminary objection to the competence of an appeal is by filing a notice of preliminary objection under Or. 10 r 1 of the Court of Appeal Rules 2007. The objection can then be moved before the hearing of the substantive appeal and the arguments of the Respondents by way of objection can be incorporated into the Respondent’s brief. See MIKPEN TIZA v. IORAKPEN BEGHA (2005) 5 SCNJ 168; DADA v. DOSUNMU (2006) 9 SCNJ 31.
However in this case since the Appellant has not objected to the method used by the Respondent, he is deemed to have waived any irregularity in bringing the objections to the grounds of appeal. The Respondent’s counsel challenged ground I as being incompetent being nebulous and utterly incomprehensible. Appellant’s counsel replied that once the issue of jurisdiction is raised, it must be considered by the Appellate Court. Both counsel cited NDUBA v. APPIO (1993) 5 NWLR Pt. 292 Pg.201. Mr. Oguntade also cited OBOMHENSE v. ERHAHON (1993) 7 NWLR Pt. 303 Pg. 37.
Ground I complained against is set out below:-
“The learned Trial Judge Tribunal has no jurisdiction to entertain the charge in view of its proceedings procedure that curtailed the Accused person’s rights vested by law at the time the alleged offence was committed”
I agree with Mr. Oguntade that generally no ground which is vague or general in terms and which discloses no reasonable ground of appeal should be permitted. See OBOMHENSE v. ERHAHON supra.
However, a close look at the above ground of appeal even though it is so patently inelegantly drafted and without particulars, discloses that there is a complaint against the jurisdiction of the Tribunal. Where a ground of appeal is defective in form provided there is a clear complaint it would not be struck out in the interest of justice. See AIGBOBAHI v. AIFUWA (2006) 2 SCNJ 61.
There seems to me to be a tendency by the superior courts to dispense with the requirement of particulars to support a ground challenging jurisdiction. Thus a ground which challenges the jurisdiction of the court simplicita is a valid ground of appeal. I am of the view that this is a competent ground of appeal moreso as the particulars have been incorporated into the ground itself.
On ground 2, learned Respondent’s counsel argued that the ground is vague and does not disclose the particular complaint of the Appellant’s counsel. He argued that this is contrary to Or. 3 r. 2(4) of the Court of Appeal Rules.
In reply, learned Appellant’s counsel submitted that the ground alleging error in law and in facts is not nebulous and that the ground clearly states what the Appellant is complaining about and is thus quite competent. He cited ADEROUNMU v. OLOWU (2000) 4 NWLR Pt. 652 Pg. 253; OLAREWAJU v. BANK OF THE NORTH (1994) 8 NWLR Pt.364 PG.622; HANBE v. HUEZE (2001) 4 NWLR (Pt. 703 Pg. 219 Pg. 375; SOSANYA v. ONADEKO (2005) 8 NWLR Pt.926 Pg. 185 AT 226.
The ground of Appeal complained of is set out below.
“The learned Trial Judge acted ultra vires in his judgment by substantiating the prosecution’s case in lieu of the prosecution’s duty to do same and thereby abdicated his sacrosanct duty of being a fair umpire between the parties.
PARTICULARS OF ERRORS
(a) It is the prosecution’s duty to prove the alleged crime beyond reasonable doubt.
(b) The learned trial Judge’s findings both in law and in facts were conclusions reached by himself rather than issues that were placed before the Tribunal by parties.”
I quite agree with the learned Respondent’s counsel that the ground of appeal with its particulars does not state clearly the object of complaint. The particular findings of the trial court being complained against is not stated. This is quite contrary to Or. 6 r 3 of the Court of Appeal Rules 2007. The essence of a ground of appeal is to appraise the opposite party of the nature of complaint by the Appellant in words that are not vague See AREWA PAPER CONVERTERS Ltd. v. NIDC (2006) 7 SCNJ 457. The ground of appeal is vague and the particulars tabulated are also vague. The purpose of particulars is to elucidate and advance reasons for the complaint in the ground of appeal. FRANCIS SHANU & ANOR. v. AFRIBANK PLC (2002) 6 SCNJ 454.
Ground 2 with its particulars being vague and contrary to Or. 6 r. 3 of the Rules of Court is hereby struck out.
Learned Respondent’s counsel urged the court to discountenance grounds 3, 4 & 5 of the Appellant’s ground of appeal because they did not arise from the judgment and no issues for determination has been formulated from them. He cited SARAKI v KOTOYE (1992) 6 SCNJ 26 at Pg. 42; ATOYEBI v. GOVERNOR OF OYO STATE (1994) 5 SCNJ 62; ERIVO v. OBI (1993) 9 NWLR Pt. 315 AT 60; CHUKWUMAH v. SHELL PETROLEUM LIMITED (1993) 4 NWLR PI. 289 AT Pg. 512.
Appellant’s counsel’s submission is that grounds 3, 4 & 5 are borne out from the record of appeal and emanate from the judgment of the lower court. He also argued that the issue formulated may arise from one or more grounds of appeal. He cited NWANKWOALA v. THE STATE (2005) 12 NWLR Pt.940 Pg. 637 AT 679; SOLOMON DABIRI v. INSPECTOR GENERAL OF POLICE (1960) LLR Pg. 1; NWIDENYI & ORS v. ALEKE (1996) 4 NWLR (PT.442) Pg.349.
It is trite that issues raised must be supported by grounds of appeal. See NWIDENYI v. ALEKE cited supra and DAGACI OF DERED v. DAGACI OF EBWA (2006) I SCNJ 160, AKINLAGUN v. OSHOBOJA (2006) 5 SCNJ 261.
It is obvious to me that ground 3, 4 and 5 are complaints about the conclusion of the learned trial Tribunal that the prosecution proved its case beyond reasonable doubt.
Ground 3 complains of the courts disregard of the evidence of DW2, Ground 4 complains of the court’s reliance on the Appellant’s confessional statement without corroboration and Ground 5 complains of the validity of Exh. H & H1 which were relied on by the trial Tribunal. A single issue can be distilled from several grounds of appeal. Issues are formulated to delimit the extent of matter or matters the court will consider and pronounce upon. See ENG. AGBI v. AUDU OGBE (2004) 2 SCNJ I.
I am of the view that Grounds 3, 4, and 5 are competent grounds of appeal and the Respondent counsel’s complaint on these grounds are unwarranted.
On Ground 6, Respondent’s counsel argued that the particulars were not stated in the ground. I agree with Appellant’s counsel that in this case the ground has incorporated the particulars necessary to show the complaint and such a ground of appeal is therefore competent. See RABIV v. ABASI (1996)7 NWLR Pt. 462 Pg. 505; UBA PLC. V. MODE NIG. LTD (2001) 13 NWLR Pt. 730Pg. 335 at 362.
I will now go to the substance of the appeal.
Issue I which covers grounds I & 6 is whether the Tribunal had the jurisdiction to convict the Appellant. The Appellant was charged in count I as follows;-
“Between 1992 and 1993 did commit a felony to wit, fraudulently granting unauthorized and unsecured credit facilities to diverse customers stated in the charge, in contravention of laid down rules and regulations punishable under Section 18(1)(8) of the Banks and Other Financial Institutions Decree No. 25 of 1991 read in conjunction with Section 3(1)(c) of the failed Banks (Recovery of Debts) Financial Malpractices Decree No. 18 of 1994.”
(Underlining mine)
Learned Appellant’s counsel argued that the Appellant was tried and convicted on Count I for offences under Section 18(1)(B) of the Banks and Other Financial Institutions Decree 25 of 1991 read in conjunction with Section 3(1)(C) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994. The commencement date of Decree No. 25 was 20th June, 1991 and the commencement date of Decree No. 18 was 9th day of November, 1994. The appellant was charged for acts done between 1992 – 1993. He submitted that in 1992 and 1993, the time at which the alleged offences were committed by the Appellant, no law was in existence known as Section 3(1) (C) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree No. 18 1994. The Tribunal applied the Failed Banks Decree retroactively or retrospectively for offences allegedly committed between 1992 – 1993. The Failed Banks Decree did not envisage a retrospective or retroactive effect. The effect of the Decree was prospective.
He submitted that the Tribunal can only try offences committed after the 9th of November 1994 under the Failed Bank Decree No. 18 of 1994. He argued that the trial and conviction of the Appellant for offences committed between 1992 – 1993 prior to the commencement of the Decree 18 is null, void and unconstitutional being contrary to S. 33(8), 33(12) of the 1979 Constitution in so far as the Tribunal had no jurisdiction to try the Appellant for a crime that was none existent at the time the action was perpetrated.
Learned Appellant’s counsel submitted further that from the perusal of the relevant provisions of BOFID the law did not contemplate that “fraudulently granting credit facilities” can be described as an offence. He submitted that the Appellant can only be convicted for an offence specifically described in the statute. He cited FRN v. IFEGWU (2003) 15 NWLR Pt. 842 Pg. 113 AT Pg. 175 & 176; OGBOMOR V. THE STATE (1985) 1 NWLR Pt. 2 Pg. 223 AT 233 and TAIWO AOKO v. ADEYEYE FAGBEMI (1961) ALL NLR REPRINT Pg. 416 at 418; UDOKWU v. ONUGHA (1963) 7 ENLR VOL II Pg. 1 at Pg. 4; TOFI v. UBA (1987) 3 NWLR Pt.62 Pg. 707.
Learned Respondent’s counsel argued that the Appellant was rightly charged under S. 18(1) (b) of BOFID No. 25 of 1991 which has a commencement date of 20th June 1991. The commencement date of Decree No. 18 of 1994 is 9th November 1994. He argued that S. 3(1) (c) of Decree 18 of 1994 did not create any offence and thus it cannot be said that the Appellant was convicted under that Decree. He submitted that S. 3(1) (c) merely vests jurisdiction on the Tribunal to try offences created by S. 18 (1)(b) of Decree 25 BOFID 1991. He distinguished FRN v. IFEGWU and argued that the Appellant therein was convicted retrospectively for offences which took place between 1988 to 1993 under S. 18 (3) and (a) of BOFID No. 25 of 1991. He submitted that the offence of “fraudulently granting credit facilities” under which the Appellant was charged clearly arose from the provisions of S. 18(1) (b) of BOFID and that the addition of the word “fraudulently” can certainly not have resulted in any infraction of the Appellant’s Constitutional right.
It is quite clear, at least to me, that the facts in this case are almost on all fours with the facts in FRN v. IFEGWU. Learned Respondent’s counsel sought to make a distinction between FRN v. IFEGWU and the facts of this case. It is clear to me that in FRN v. IFEGWU the Respondent was charged under S. 18(3) and (9) which were statutory provisions relating to Directors of a bank whereas S. 18(1) (b) under which the present Appellant was charged are statutory provisions relating to managers or any other officer of the bank. There is no substantial distinction in my view between S. 18(1) (b) and 18(3) which states operational directives or regulations to the manager and Director respectively. S. 18 (2) states the sanctions on any manager or officer who fails to comply with the provisions of S. 18(1)(b) in relation to this case, whereas in FRN v. IFEGWU. S. 18(9) states the sanction to be faced by a Director who contravenes S. 18(3) of BOFID No. 25 of 1991. I found no real distinction to dissuade me from following the ratio in FRN v. IFEGWU.
S.18(1)(a) – (c) and 2 of the Banks and Other Financial Institutions Decree BOFID No. 25 of 1991 provides as follows:-
“No Manager or any other office of a Bank shall-
(a) in any manner whatsoever, whether directly or indirectly have personal interest in any advance, loan or credit facility; and if he has any such personal interest, he shall declare the nature of his interest to the Bank;
(b) Grant any advance, loan or credit facility to any person, unless it is authorised in accordance with the rules and regulations of the bank; and where adequate security is required by such rules and regulations, such security shall, prior to the grant, be obtained for the advance, loan or credit facility and shall be deposited with the bank;
(c) benefit as a result of any advance, loan or credit facility granted by the bank.
(2) Any manager or officer who contravenes or fails to comply with any of the provisions of subsection (1) of this section is guilty of an offence under this section and liable on conviction to a fine of N100,000 or to imprisonment for a term of 3 years; and in addition, any gains or benefits, accruing to any person convicted under this section by reason of such contravention, shall be forfeited to the Federal Government, and the gains or benefit shall vest accordingly in that Government ”
The application of S.3 (1)(c) of the Decree No. 18 of 1994 by the Tribunal shows that the Tribunal applied the ingredients of an offence created after the offence was committed. Uwaifo JSC at Pg. 177 of the NWLR in FRN v. IFEGWU held as follows:-
“It is plain that each paragraph of subsection (1) looks to the present and future by talking only of what the culprit engages in doing but does not include even impliedly what he had done before the commencement date of the Decree. This appears to me to be in consonance with an intention to punish for an offence that was committed as from 9 November 1994, the commencement date of the Decree. In other words the Decree did not envisage retroactive effect.”
Thus I agree with learned Appellant’s counsel that the trial and conviction of the Appellant at the Tribunal under Section 18(1) (B) of the Banks and Other Financial Institution Decree No. 25 of 1991 and Section 3(1)(C) of the Failed Banks (Recovery of Debts) Decree No. 18 of 1994 for offences allegedly committed between 1992 – 1993 is a fundamental error, since the Tribunal had no jurisdiction to apply the Failed Banks Decree 1994 retrospectively.
This legal confusion at the Tribunal, caused prejudice and miscarriage of justice to the Appellant. This error in “lumping together” both Decrees for trial and conviction of the Appellant constitutes a substantial misdirection sufficient for an appellate court to allow this appeal on this ground.
There seems to me with the greatest respect to be a misconception by the Appellant’s counsel of the ratio in FRN v IFEGWU supra. Uwaifo JSC at Pg. 196 of the NWLR para mid C – H stated as follows:-
“In this particular case, the assumed intention is to punish based on the mental element of an accused in granting irregular facilities etc. Not to follow the ejusdem generis rule to accept that “fraudulently” comes within that mental element of “knowingly, recklessly, negligently, willfully” used in section 19(1)(a) is to create an absurd result if the evidence actually shows fraud. If it does not show fraud but any of the other elements, there is no reason why an amendment to the charge made at the appropriate time cannot be allowed. I am satisfied that the respondent was not misled and that the charge as framed is not defective. As a matter of fact, the burden on the appellants somehow initially became higher on the face of the charge to prove that particular aspect of the charge beyond mere knowingly, recklessly, negligently or willfully but that the act of the respondent was fraudulent-although proof of any of those other elements would ultimately suffice;-in-my-view. The use of the word “fraudulent” in the charge does not, it would appear to me, make the offence unknown to law. All that might need to be done would be an appropriate amendment followed by compliance with due procedure. That leads me to say that what I have discussed under this issue would be relevant in an appeal proceeding from the decision of the Failed Banks Tribunal or on further appeal from the Special Appeal Tribunal if it were available. But that is not the focus in the present case as it completely misses the constitutional point in issue. What this court is concerned with is whether there had been an infraction of the relevant provisions of section 33 of the 1979 Constitution. I can hardly see how the use of the word “fraudulently” in the charge in question would have brought that about. The elements that constitute a contravention of the respondent’s fundamental right have already been discussed in this judgment and I hope the issue is reasonable.”
(underlining mine)
The above ratio which is the lead judgment of the court is that the use of the word “fraudulently” comes within the mental element envisaged by the words “knowingly, recklessly, negligently, willfully” and that any other interpretation will be absurd. Muntantis mutandis, the word “fraudulently” comes within the mental element envisaged in S. 18(1) of Decree 25 of 1991 which provides that “no manager or any other officer of a Bank shall (a) in any manner whatsoever……” (underlining mine)
I must however point out that Niki Tobi JSC departed from the above position in his contribution particularly pg. 214 – 215 para C, D & H. My Lord was of the view that the ingredients of “fraudulently granting credit facilities” cannot be read into S. 516 of the Criminal Code and S. 3(1)(b)(c) and (d) of the Failed Banks (Recovery of Debts) and Financial Malpractices Decree 1994.
On this point, I agree with learned Respondent’s counsel that using the word “fraudulently” in the charge to describe the mens rea of the Accused is not an infraction of the Appellant’s Constitutional rights. The Appellant was not misled. See OGBOMOR v. THE STATE(1985) 1 NWLR Pt. 2. Pg. 223.
I must reinterate the view of Uwaifo JSC that Decree No. 25 of 1991 and Decree 18 of 1994 were not enacted with retrospective effect. An undue problem was created by those who framed and prosecuted the charges against the Appellant by combining a valid charge with an invalid one to create an offence. The Appellant could have been validly charged solely under S. 18 of the 1991 Decree 25. However, he cannot be charged retrospectively for an “offence punishable under S. 18(1) (B) of the Banks and Other Financial Institutions Decree No. 25 of 1991 “read in conjunction with S. 3(1) (c) of the Failed banks (Recovery of Debts) and Financial Malpractices in Banks Decree No. 18 of 1994.” See also HASSAN SHALLABI & ADIB SAHIH v. R. (1935) 2 WACA 363 cited by Appellant’s counsel. In FRN v. IFEGWU all the Justices of the court held that S. 33 of the 1999 Constitution protects citizens from retroactive criminal indictments. The two questions referred to the Court of Appeal by the High Court to wit whether the Tribunal had the jurisdiction to charge with counts 1 & 10 and to try the Appellant under Decree 18 of 1994 were answered in the negative by Uwaifo JSC in the lead judgment.
I have said earlier that the facts of this case are almost on all fours with the facts in FRN v. IFEGWU. In the circumstances, I find that the Tribunal had no jurisdiction to try the Appellant as charged and his conviction on count 1 is hereby quashed.
The 2nd leg of this issue is whether the Tribunal had jurisdiction to order forfeiture of the Appellant’s asset which is a building in Lagos to the Federal Government.
Learned Appellant’s counsel argued that by S. 18(2) of the BOFID Decree No. 25 of 1991, before the Appellant’s property can be confiscated, the gains and benefits should be traceable to the contravention. He argued that there was in fact clear evidence that the Appellant had acquired the building forfeited before the offence was committed. He submitted that where a court exceeds jurisdiction to punish, an appellate court will reduce the punishment to the limits of the lower court’s jurisdiction. He cited EMOWE v. POLICE (1956) NRNLR 38; FASHUSI v. POLICE 20 NLR 126. QUARTEY v. POLICE (1957) NRNLR 38.
Learned Respondent’s counsel argued that it was not necessary for the prosecution to prove that the Appellant made any gains from the transaction so long as the transaction were made contrary to the Bank’s regulations.
I have made a careful reading of the evidence led at the trial in the Tribunal below and I agree entirely with the Appellant’s counsel that there was no evidence led before the Tribunal by the prosecution to prove that the Appellant built the house forfeited from the gains and benefits derived from the loan transactions.
S. 18(2) provides that it is property acquired through the gains or benefit of such transactions that should be forfeited. The order of forfeiture cannot be at large to include property acquired before the offence was committed or property acquired by means of loan, inheritance etc. The Tribunal did not consider this lacuna in the prosecution’s case before making the order for forfeiture. The onus of proof is on the prosecution to prove that the property was acquired from the gains of unlawful transactions. There is no gainsaying the fact that in appropriate cases the Tribunal has the power and jurisdiction to order confiscation of property of a convict. DR. EWIN ONWUDIWE v. FRN (2006) 4 SCNJ 350.
The evidence of the Appellant on Pg. 152 of the record which was not contradicted by the prosecution was that he took a loan from the Bank between 1984 to 1985 and built a house. That was well before 199I when the Decree creating the offence was promulgated. It is clear that the Tribunal exceeded its jurisdiction by imposing forfeiture of the appellant’s building in Lagos without evidence that the acquisition of the building was traceable to gains or benefits from the offence charged under S. 18(1) of BOFID.
In the circumstance, the order of forfeiture of the Appellants building in Lagos with Certificate of Occupancy is hereby set aside being unlawful and in excess of the court’s jurisdiction. The property should be returned to the Appellant forthwith.
The second issue for determination is whether or not the prosecution proved its case beyond reasonable doubt. Learned Appellant’s counsel argued that it is the duty of the prosecution to prove its case beyond reasonable doubt. He cited EGWIM v. THE STATE (1998) 1 NWLR Pt. 532 Pt. 39 at Pg. 69. Counsel argued that before the prosecution can succeed under S. 18 (1) (b) of BOFID Decree No. 25 of 1991, the prosecution must prove beyond reasonable doubt the following:-
(i) That the Appellant granted loans advances and credit facilities to a person.
(ii) That the loans and credit facility was granted contrary to the rules and regulations of the Bank.
(iii) Benefited as a result of any advance, loan or credit facility granted by the Bank.
(iv) Failed to disclose his personal interest or benefit in the loan.
Counsel argued that the prosecution did not establish in any manner whatsoever that the Appellant derived any benefit or interest directly Or indirectly from the loans, advances or credit facilities he granted. He submitted that this constitutes doubt cast on the prosecution’s case. He cited KALU v. THE STATE (1988) 4 NWLR Pt. 90 Pg. 503; OKONJI v. THE STATE (1987) 1 NWLR Pt.52 Pg.657; ADERETI v. WR (1965) ALL NLR Pg.266.
Appellant’s counsel also submitted that there was miscarriage of justice because the Tribunal refused to consider the evidence of PW5 and the 2nd Accused favourable to the Appellant. Both witnesses had denied conspiracy and fraud by the Appellant in the discharge of his duties. He cited LADO v. THE STATE (1999)9 NWLR 619 Pg. 369 at 383; AIGBEDION v. THE STATE (2000) 7 NWLR Pt. 666 at Pg.701 & 702; OKOGBUE v. C.O.P (1965) NMLR 232.
Learned Respondent’s counsel however submitted that it was not necessary for the prosecution to prove all the ingredients of the offences and urged the court to distinguish the facts in ADERETI v. W.R. from the facts of this case.
My Lords, the Appellant was charged with the offence of fraudulently granting loan facilities in violation of bank regulations. It is clear that the prosecution must prove all the ingredients of the offence particularly the vital element of fraud in the transactions. It is trite that where the prosecution fails to prove a vital ingredient of the offence, the conviction will be quashed. In this case, to prove the charge against the Appellant, the prosecution must prove that he fraudulently gave out unauthorised and irregular loan with a view to making financial gains from such transactions. The fraudulent intent which is the mens rea required in any criminal prosecution, the unauthorised acts and the financial gain or interest must all be proved before it can be said that the prosecution had proved its case beyond reasonable doubt. See OBIAKOR v. THE STATE (2000) 6 SCNJ 193. The burden of proof remains on the prosecution and does not shift in criminal trials except in cases of insanity. See IGABELE v. THE STATE (2006) 2 SCNJ 124; NWANKWOALA v. THE STATE (2006)7 SCNJ 566.
I have read the so called confessional statements of the Appellant. They contains nothing but explanations and excuses for granting various loan facilities. With the greatest respect to the learned Tribunal Chairman, I cannot agree that the statements of the Appellant Exh. 19 – 19 (1) – (4) have the “tenor of confessional statements” There is nothing in our law like “having the tenor” of a confessional statement. A confessional statement must be direct and positive and admit of all the ingredients of the offence before it can be used solely or partly to convict an accused. See AKIBU HASSAN V. THE STATE (2001) 7 SCNJ 643; MICHAEL PETER v. THE STATE (1997) 12 SCNJ 53.
In fact Yisa Saliu the IPO in the case stated categorically on Pg. 141 of the record as follows:-
“We did not find any fraudulent transaction between the 1st accused and the various customers be granted loans. There were lots of cheques involving the 1st accused person and the customers. I was not shown any letter by the Nigeria Arab Bank on the lending limit of the 1st accused person. 1st accused did not deny granting the loans. I do not know whether that is admission or not.”
Also the 2nd Accused gave evidence on Pg. 158 of the record that he did not give the Appellant any bribe at the time he made overdraft withdrawals from the bank. Thus, the prosecution failed to prove fraudulent intent which is an essential element of the offence with which the Appellant was charged. Also the court did not at all consider the weight of the evidence of the Investigating Police Officer and the co-accused to the effect that the Appellant did not make any gains from the transactions. The prosecution’s evidence should have cast doubt on the case to be resolved in favour of the Appellant.
I therefore wholeheartedly follow and could not have put the law better than Uwaifo JSC in LADO v. THE STATE supra where he stated as follows:-
“…When a crucial evidence in a criminal trial is overlooked or misunderstood by a trial court it is likely to lead to miscarriage of justice. This is because the appellate court, in considering a complaint by the accused against the judgment reached on that basis by the trial court may be unable to say what the decision would have been had the trial court given proper consideration on such evidence. That creates a reasonable doubt as to whether the decision is correct, and the doubt ought accordingly to be resolved in favour of the accused ”
It is the duty of the court to consider all evidence both favourable and unfavourable against the Accused. OGIDI v. THE STATE (2005) 1 SCNJ 67.
In the circumstances, I am of the humble view that the prosecution having failed to prove the essential ingredients of the offence against the Appellant at the lower Tribunal and the lower Tribunal having failed to consider evidence favourable to the Appellant before convicting the Appellant, the duty of this court is to quash the conviction and it is hereby quashed. The 2nd issue is resolved in favour of the Appellant.
This appeal succeeds. The conviction of the Appellant by the lower Tribunal and the order of forfeiture of the Appellant’s property is hereby quashed.
Appeal Allowed. No order as to costs.
Other Citations: (2008)LCN/2960(CA)
