Oreoluwa Onakoya Vs Federal Republic Of Nigeria (2002)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

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

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

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

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

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

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

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

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

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

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

Issues (1) & (3)

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

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

(a) grant

(b) approves the grant

(c) is connected with the grant

(d) is connected with the approval

He said the charge against the appellant is not in accordance with offences created because instead of charging him with two distinct and separate offences, he was charged with two offences in a single charge i.e. approving the grant and granting. That for the charge to have succeeded, the prosecution must have established that it was the appellant who approved the grant and who also granted or disbursed the sum of N14million to the customer. He said the evidence before the tribunal does not show that the grant or disbursement was made in accordance with the alleged approval of the appellant, and it was therefore wrong to have convicted him as charged i.e for approving and granting. That it was a serious misdirection by the tribunal when it stated on page 153 of the record that

“Now in his address, Mr. Gana submitted and I agree with him, that it is important to note that the accused person is not being charged with disbursing the sum of N14 million to P.W.6. The charge is that of approval which was done between 20th may, 1996 and 28th may, 1996. It is therefore immaterial whether the money was actually disbursed or not.”

Counsel also referred to page 297 of the record wherein the Court of Appeal confirmed the decision of the tribunal above and submitted that it was wrong for the court below to have confirmed the conviction for approving and granting or disbursing. He said the conviction was illogical and wrong and should not be allowed to stand.

Learned counsel further submitted that although the Court of Appeal confirmed the findings of fact by the tribunal except the finding that the appellant admitted that he approved N14 million, the court below still went on to hold wrongly that there was sufficient evidence to support the finding that the appellant approved N14 million to PW.6 and not N 1.4 million. He said it was illogical for the court below to conclude that the finding of the tribunal that the appellant admitted the charge when in fact he did not, did not occasion a miscarriage of justice. That there was no way the tribunal could not have been influenced by the fact of an assumed admission in evaluating the evidence led in the case. He referred to pages 293 and 294 of the record. It was also submitted that having agreed that the appellant did not confess that he approved N14 million to P.W.6, the question of what amount the appellant approved is not one which should have been determined by reference to credibility and demeanour of witnesses. Because the approval was in writing the lower courts should have been more concerned with the instruments of approval, namely exhibits C1, C2, D & H. He said the original of the document was never produced by the prosecution and that it was not sufficient for P.W.3 to have stated that it was he who destroyed the original without stating his reasons for doing so. That the lower courts should have taken this into consideration in deciding whether the prosecution proved its case beyond reasonable doubt and whether it was N14 million or N1.4 million that was approved. He said exhibits C1, C2, D & H are unreliable and should not have been used as the basis in coming to the conclusion that the appellant approved N14 million and not N1.4 million. It was contended that the Court of Appeal erred in holding that it could not review the findings based on these exhibits but must confirm the finding of facts of the tribunal based on the credibility and demeanour of witnesses when these are issues that cannot be determined on credibility and demeanour of witnesses.

Mr. Gana learned counsel for the respondent in his brief began by first making an apology to the lower courts for his erroneous submissions in those courts that the appellant admitted the charge. He conceded that the appellant never at anytime anywhere admitted the charge. That it was never his intention to mislead the lower courts in any way as the error was not deliberate. It was then submitted that the erroneous submission that the appellant admitted the charge did not occasion a miscarriage of justice because the appellant was never convicted by the tribunal on the strength of any admission of the charge, and that the Court of Appeal was right when it said further that it is trite that “not all errors committed by a trial Judge will lead to setting aside of the judgment.” He referred to page 294 of the record. He said the evidence against the appellant is overwhelming apart from the alleged admission. That the tribunal believed the prosecution witnesses and disbelieved the appellant and this resulted in his conviction. It was also submitted that the fundamental purpose of a charge is to inform an accused person of the offence or offences against him, so that he knows what case he is to meet and to enable him prepare his defence. That it is evident from the conduct of the appellant in the lower courts that he had no doubt whatsoever in his mind of the offence for which he stood trial and upon which he was convicted. That the appellant did not complain anywhere that he was confused or misled by the charge. On the contrary he defended himself very well. He said the appellant was properly convicted for the offence with which he was charged. It was contended that the appellant has failed to show any special circumstance which would induce this court to interfere with the concurrent decisions of the lower courts.

Now, I have already reproduced the charge against the appellant above. Section 19 of decree no. 18 of 1994 under which the charge was laid provides as follows:

“19.(1) Any director, manager, officer or employee of a bank who

(a) Knowingly, recklessly, negligently, willfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person

(i) without adequate security or collateral, contrary to the accepted practice or the bank’s regulations; or

(ii) with no security or collateral where such security or collateral is normally required in accordance with the bank’s regulations; or

(iii) with a defective security or collateral or

(iv) without perfecting, through his negligence or otherwise a security or collateral obtained; or

(b) ……………….. or

(c) ……………….. or

(d) ……………….. or

(e) …………………;

is guilty of an offence under this decree.”

On a careful reading of the provisions of the decree above, I have no hesitation in agreeing with Professor Kasunmu, S.A.N that four distinct offences are created by the above enactment to wit:

(1) grant

(2) approves the grant

(3) connected with the grant

(4) connected with the approval

The charge against the appellant above reads in part –

“That you did commit a felony to wit, you approved the granting and granted credit facility of N14m (fourteen million) to one Alhaji Gajimi Ibrahim. ”

Clearly therefore the appellant was charged with two distinct offences in one single charge. This is wrong and improper. And it is evident from the record that that much was realised by learned counsel on both sides in their addresses at the tribunal. The best thing that the prosecution would have done at that stage, which was before judgment, was to have applied to the court to have the charge amended. The court may also amend the charge as well at that stage. This was never done. And in its judgment the tribunal on page 153 held thus –

“Now, in his address, Mr. Gana submitted and I agree with him that it is important to note that the accused person is not being charged with disbursing the sum of N14 million to P.W.6. The charge is that of approval which was done between 20th may, 1996 and 28th may, 1996. It is therefore immaterial whether the money was actually disbursed or not as Mr. Gana rightly submitted the mere fact that you approved the grant constitutes the offence whether the sum approved was actually disbursed or not.”

The Court of Appeal agreed with what the tribunal said above when it stated in its lead judgment on page 297 of the record that:

“I am of the firm view that even though the appellant is charged with “granting and approving the grant” as one, even though they constitute two distinct offences under the decree, if the prosecution as in this case, proves one of the offences under the decree against the appellant, he can be convicted for that offence. In the present appeal, the lower court rightly held that the offence of approving the grant of credit facility of N14 million to P.W.6 was proved against the appellant and that it is immaterial whether the sum so approved was disbursed or not. I am of the view that the appellant was not misled by the charge neither has any miscarriage of justice occurred.”

I agree completely. In cases of this nature, the guiding principle is whether the accused is embarrassed or prejudiced by the charge as framed. If he is misled by the charge then it follows that he is equally misled in his defence. And if he is misled in his defence, it is my respectful view that there must as a result be a failure or a miscarriage of justice. That is not the position here. Reading through the record there is no iota of evidence whatsoever that the appellant was misled or prejudiced or embarrassed in any way. Rather the record shows that he appeared to have appreciated the charge in all its ramifications. In other words although the charge herein is bad for duplicity, it is not in my view fatal to the conviction of the appellant who was not prejudiced in any way, and where no miscarriage or failure of justice is shown to have occurred bearing in mind the fact that he was only convicted on one count only. A conviction will certainly not be quashed or a trial declared a nullity merely on the ground of a patent duplicity in a charge unless a miscarriage or failure of justice has occurred thereby (see for example R v. Asiegbu (1937) 3 WACA 142, R. v. Kalle (1937) 3 W.A.CA 197, Okeke v. Police 12 WA.C.A 363, R. v. Osakwe (1948) 12 WACA 366; R. v. Thompson (1914) 9 CAR. 252). I have said enough.

On whether or not the case against the appellant was proved beyond reasonable doubt, the main grouse here is that the Court of Appeal having agreed that the appellant never admitted during trial that he approved N14 Million for PW6, and that the tribunal was in error in so holding, the Court of Appeal wrongly concluded that the finding did not occasion a miscarriage of justice.

I have already referred to the apology offered above by learned counsel for the respondent regarding the alleged admission. I have myself read through the record in this case and I am inclined to agree with the Court of Appeal that the tribunal never relied on the alleged admission in arriving at its conclusion to convict the appellant. The Court of Appeal had this to say on the point in its lead judgment on page 294 of the record –

“However, the issue is, what is the effect of this perverse finding on the judgment of the trial court

It is trite law that it is not all errors committed by a trial Judge that will lead to a setting aside of the judgment. In the present appeal the learned trial Judge had already come to the conclusion that the appellant approved the sum of N14 million instead of N1.4 million he claimed before making the finding complained of. In fact, the said finding is at the last but two paragraphs of the judgment at page 154 of the record. In other words, I am of the firm view that despite the said finding there is sufficient evidence to support the finding by the learned trial Judge that what the appellant approved for P.W.6 is N14 million and not N1.4 million. That being the case, it is my view that the said finding has not resulted in a miscarriage of justice to necessitate the judgment of the court being set aside on that ground alone.”

I think the Court of Appeal is right.

The other point raised is whether in the absence of the original fax copy of exhibits C1, C2, D & (photocopies), the tribunal could have properly proceeded to rely on the testimonies of PW3, PW4 and PW6 to found that the appellant approved N14 million and not N1.4 million. Again on this point the court below said-

“I do not agree with the submission of learned counsel for the appellant that the issue of the amount approved by the appellant could only be proved by the production of the original fax message in view of the findings made by the learned trial Judge. Both parties are agreed that the court did find as a fact that the principal characters in the drama are P.W 3, P.W 4, P.W 6 and the appellant. Following the absence of the original fax message and in view of the discrepancy in the figure of the loan approved, the only way to resolve the issue was by examining the evidence of these witnesses and deciding on who to believe after watching them testify. The essential issue before the tribunal is whether the appellant approved N14 million or N1.4 million and resolving it the learned trial Judge believed the evidence of the prosecution witnesses and disbelieved that of the appellant. I am of the firm view that the trial Judge is right in so doing having regard to the state of the law as stated in many cases including Sugh v. The State (1988) NWLR (Pt. 77) 475.”

I think the Court of Appeal is again right. The fact was that P.W.3 who wrote the fax message told the tribunal that he destroyed the original. Again, the beneficiary of the credit facility PW6 has told the tribunal that appellant approved N14 million for him which he collected from maiduguri branch of the bank and which he had since paid back. In the presence of the principal characters in the person of PW3, PW4 and P.W.6,the tribunal needed not to have bothered with exhibits C1, C2, D & H which were exactly the same except for the figure “N1.4m” in exhibit D to make it appear that the sum approved was N1.4 million instead of N14 million in others. I therefore resolve that the Court of Appeal was right in holding that although the charge against the appellant was bad for duplicity his conviction was proper. The Court of Appeal was also right in holding that the tribunal was right in coming to the conclusion that the case against the appellant was proved beyond reasonable doubt. I am unable to find anything on the record which suggest that the appellant was convicted for an offence for which he was not charged. Rather the evidence galore that the appellant was properly and rightly convicted for the offence of approving the overdraft facility of N14m. He was never convicted of granting or disbursing the loan itself, even though the tribunal erroneously recorded on page 154 thus:

“Accused person convicted as charged.”

This is wrong because the tribunal had held earlier on page 153 of the record that it agreed with Mr. Gana for the respondent that the appellant was not being charged with disbursing the sum of N14m. 1 think that was proper. You may say this is not the proper way to amend a charge, and you will be right. Issues (1) & (3) are therefore resolved against the appellant.

Issue (2)

The complaint here is whether or not the Court of Appeal was right in confirming the interpretation of paragraph 3 of exhibits C1, C2, D & H by the tribunal to the effect that the endorsement by the appellant on the exhibits was a confirmation of an earlier oral approval of credit facility granted to the customer (P.W.6) on 24th may, 1996.

The fax message in these exhibits reads as follows:

“TOD of N14m to Alh. G. Ibrahim, maiduguri branch. We discussed the TOD request of Alhaji Gajimi Ibrahim of our maiduguri branch.

2. The branch manager, has confirmed the receipt of two title documents, one of his personal house and the second his live horse. They are worth more than the exposure. I have asked him to obtain his personal guarantee in addition.
3. Please confirm your action in approving this TOD of NI4m for a week, payable by 30th may, 1996.
4. Regards Alhaji S. Allah Kaye 24/5/96.

The endorsement by the accused reads as follows –

“CC:AGM[N]

Approved for three days effective today

Ore Onakoya

Executive Director

27/5/96”

I must have already answered this question in my consideration of issues (1) and (3) above, particularly in relation to the crucial effect of the evidence of star prosecution witnesses PW3, PW4 and PW6 which the learned trial Judge accepted and heavily relied upon. The learned trial Judge found as a fact that the approval given by the appellant was for N14 million and not N1.4 million and that the approval by the appellant though dated 27/5/96 was to confirm the oral approval he gave on 24/5/96. This finding was based on the evidence of the prosecution witnesses and not on any alleged admission by the appellant.

The Court of Appeal on page 297 of the record said:

“It must be noted that the learned trial Judge had believed the evidence of the prosecution witnesses as against that of the appellant. The believed evidence of prosecution witnesses include the evidence of oral approval proceeding the written one (meaning the endorsement above). I agree with the trial Judge that the words “Please confirm your action” (See paragraph 3 above) refers to the oral approval earlier given. So the court’s finding cannot be said to be perverse.”

(Words in bracket supplied by me)

The tribunal had earlier on page 151 of its judgment held thus –

“Contrary to the submissions of learned counsel for the accused person, it is evidently clear from the 3rd paragraph of exhibits C1, C2 D & H which reads “Please confirm your action in approving this TOD of N14m (or N1.4m) for a week payable by 30th may, 1996,” that PW3 was asking for a written approval to cover an earlier approval on the telephone from the accused person. I have also critically examined exhibits C1, C2, D & H and I have no doubt whatsoever in my mind, that a dot was clearly inserted between 1 and 4 (in exhibit D) to make it appear that the sum approved was N1.4 million.”

I entirely agree.

I think the tribunal was right in its interpretation of paragraph 3 of exhibits CI, C2, D & H above, and the Court of Appeal was equally right in confirming that interpretation. That is what the evidence before the tribunal demanded. I have no reason to interfere. Issue (2) is therefore resolved against the appellant. All the issues having been resolved against the appellant, the appeal fails. It is accordingly dismissed. Conviction and sentence are hereby further confirmed.M. L. UWAIS,C.J.N.: I have had the opportunity of reading in draft the judgment read by my learned brother Kutigi, JSC. I entirely agree with his reasoning and conclusion. However, I wish to express my opinion on the question of the duplicity of the charge to which the appellant was convicted by the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal (Augie, J.).

Section 19 subsection 1 (a), (b) and (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, No.18 of 1994, as amended, provides as follows:

“19.(1) Any director, manager, officer or employee of a bank who

(a) knowingly, recklessly, negligently, willfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person

(i) without adequate security or collateral, contrary to the accepted practice or the bank’s regulations, or

(ii) with no security or collateral where such security or collateral is normally required in accordance with the bank’s regulations, or

(iii) with a defective security or collateral, or

(iv) without perfecting, through his negligence or otherwise, a security or collateral obtained; or

(b) grants, approves the grants, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility which is above his limit as laid down by law or any other regulatory authority or the bank’s regulations; or

(c) grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility to any person in contravention of any law for the time being in force, any regulation, circular, or procedure as laid down, from time to time, by the regulatory authorities or by the bank … ”

It is clear from the provisions that under paragraph (a), the bank official concerned must act either “knowingly, recklessly, negligently, willfully or otherwise” in connection with granting or approving the grant of “a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person” before he will be liable under section 19 subsection (1) (a) of the decree. This is not enough, however, as the official must have done the act in one of four ways, namely”

(i) Without adequate security or collateral, contrary to the accepted practice of the bank concerned or the bank’s regulations.

(ii) With no security or collateral where such security or collateral is normally required in accordance with the bank’s regulation.

(iii) With defective security or collateral.

(iv) Without perfecting, through his negligence or otherwise a security or collateral obtained.

Under paragraph (b) the bank official concerned must have granted or approved the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility which is above his limit as laid down by law or any other regulatory authority or the bank’s regulation. It is significant to note that under this paragraph the official need not act either “knowingly, recklessly, negligently, willfully or otherwise” because the offences under paragraphs (a), (b) and (c) of section 19 subsection (1) of the decree are disjunctive by reason of the semi-colons and the word “or” at the end of each paragraph – see section 18 subsection (3) of the Interpretation Act, Cap. 192 of the Laws of the Federation of Nigeria, 1990. which provides as follows:

“18(3) The word “or” and the word “other” shall in any enactment, be construed disjunctively and not implying similarity.”

Under paragraph (c) the bank official concerned must have granted or approved the grant or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility to any person in contravention of any law for the time being in force, any regulation, circular, or procedure as laid down, from time to time, by the regulatory authorities or by the bank.

One common thread through all the different offences created under paragraphs (a) (b) and (c) is that the official of the bank concerned must be connected one way or the other with the granting or approving the grant or otherwise connected with the approval of a loan, an advance, a guarantee or any other credit facility.

The appellant here was charged before the Tribunal as follows: “That you Ore Oluwa Sylvester Adedeji Onakoya, male, while being a director of Savannah Bank of Nigeria Plc, in lagos between 20th may, 1996 and 18th may 1996 committed a felony to wit: you approved the granting and granted credit facility of NI4 million (fourteen million naira) to one Alhaji Gajimi Ibrahim a customer of the maiduguri branch of Savannah Bank of Nigeria Plc particularly memorandum 119, you thereby committed an offence contrary to sections 19 (1) (a), (b) and (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended and punishable under section 20 (1) (a) of the same decree.”

Now, it is clear, as contended, by Professor Kasunmu, learned senior advocate, for the appellant, that the appellant was charged with both approving the grant of the loan of N14 million to Alhaji Gajimi Ibrahim and granting the loan. These are two distinctive offences under section 19 subsection (1) of decree No.18 of 1994. Learned counsel submitted that the appellant should have been charged of two separate counts, one count dealing with the approval and the other with the granting of the loan. In other words the charge was bad for duplicity.

The charge also stated that the appellant “committed an offence contrary to sections 19 (1) (a) (b) and (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in banks decree 18 of 1994 as amended ….’

In effect the appellant was said to have committed the two distinct offences under paragraphs (a), (b) and (c) of subsection 1 of section 19. But we are not here concerned with this aspect of the case because at no time did the appellant complain about this particular duplicity and we are inhibited from making a case for him. His sole complaint is about the allegation of approving the grant and the granting of the loan in question. Neither in the appellant’s brief of argument nor in his counsel’s oral argument was this point raised. I am bound, therefore, not to say more on the point.

Again the appellant has not complained about the charge being uncertain or having been embarrassed by the duplicity. This is borne out by the third issue for determination formulated in the appellant’s brief of argument as follows:

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

Now on the issue of duplicity it is settled that where there is a duplicity of charge an appeal court will not interfere with the finding of the trial court unless there is a substantial miscarriage of justice – See R. v. Kalle (1937) 3 WACA 197; Ogbebor v Commissioner of Police (1950) 13 WACA 22 and Guduf v. Commissioner of Police (1960) NRNLR 69. Section 156 of the Criminal Procedure Act, Cap. 80 of the Laws of the Federation of Nigeria, 1990, provides:

“156. For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in cases mentioned in sections 157 to 161 of this Act.”

Commenting on the effect of misjoinder contrary to the provisions of this section, the learned authors of the work – The Criminal Law and Procedure of the Six Southern States of Nigeria, 2nd Edition, stated as follows on page 310 thereof:-

” … On the other hand, duplicity in a single charge or count though equally forbidden by section 156, has not invariably been treated as fatal to a conviction where no miscarriage of justice has occurred: See section 322.

The distinction seems to be that an improper joinder of charges is absolutely prohibited, whereas the inclusion in one charge or count of two or more offences for which separate charges or counts might properly be joined is no more than an irregular way of achieving a permissible result.”

I quite agree. The learned authors also stated on pp. 321, 322 as follows: –

“If objection is not taken to a charge on the ground of duplicity, and no miscarriage of justice has occurred, a conviction will not be quashed merely on the ground of duplicity: Okeke v Police (1948) 12 W.A.C.A. 363; R. v. Osakwe (1948) 12 WA.C.A. 366. The same applies to an objection for vagueness: Omisade and Others (1964) N.M.L.R. 67; (1964) 1 ALL N.L.R. 233. The decision in R. v Achie (1947) 12 W.A.C.A. 209, that where a charge is bad for duplicity the trial is a nullity has not been followed in subsequcnt cases and is inconsistent with the earlier decisions in R. v. Asiegbu (1937) 3 WACA 142, and R. v. Kalle (1937) 3 WACA 197. Where, however, the Judge fails to direct his mind to the several issues involved and to give separate consideration to each, the conviction may be quashed not withstanding section 168; R. v. Aniemeke (1961) 1 All NLR 43. Where the accused was charged with obtaining money by false pretences and the evidence showed that he obtained a cheque, it was held that as he did not object to the charge the objection was cured: Macaulay v. Police (1954) 14 WACA 546. On a charge alleging that the accused did demand or accept a reward, contrary to section 99 of the criminal code, it was held that the words “demand or,” which do not appear in the section creating the offence, might be treated as superfluous: R. v. Osakwe, (supra)”

In the present case, throughout the trial before the tribunal, the appellant, as accused person, had presented his defence on the basis that he did not approve the loan in question beyond his authority. He admitted in his testimony that he approved the request for N1.4 million. The learned trial Judge observed as follows on p.114 of the record of appeal –

“There is equally no dispute as to the fact that the accused person approved the grant of a credit facility to PW6, what is in dispute however is – how much was approved by the accused person”

At the end of the trial the learned trial Judge found the appellant guilty as follows:

“I am therefore satisfied from the totality of the evidence before me that the prosecution has established the case against the accused person and proved beyond reasonable doubt that the accused person approved a credit facility of NI4 million to one Alhaji Gajimi Ibrahim without lawful authority and also in contravention of the lending rules and regulations in force at the time in Savannah Bank. Consequently, I find the accused person guilty as charged and convict him accordingly. That is the judgment of this tribunal.”

It can be seen that although the charge alleged approval of granting of loan and the grant of loan, as complained by the appellant, the conviction was based on approving grant of the loan and not the grant. The defence of the appellant was purely against the charge that he approved the loan. In the circumstances, I am satisfied that the appellant was not misled by the duplicity of the charge and he was not convicted of an offence of which he was not sure nor failed to meet at the trial. I am convinced that no miscarriage of justice had been occasioned in this case.

Accordingly, I too will dismiss the appeal and affirm the decision of the Court of Appeal which had confirmed that of the trial court.

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SC.11/2001