ALHAJI MOHAMMED KABIR MAMMAN v. FEDERAL REPUBLIC OF NIGERIA
(2010)LCN/3756(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of April, 2010
CA/B/1008/2002
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
Between
ALHAJI MOHAMMED KABIR MAMMAN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
RATIO
THE MEANING OF THE TERM “CHARGE”
It is pertinent to state herein that, the terminologies, charge and count are used interchangeably in criminal proceedings hence, they shall be so used herein. The essence of a charge against a person is to afford the person the opportunity to know and grasp the reason he or she has been brought before a court of law, tribunal or judicial enquiry. A charge is a complaint or information as to the offence with which a person is accused and which is delivered to the person so accused or charged in a language that he understands with sufficient details of the alleged offence. PER OMOLEYE, J.C.A.
WHETHER OR NOT ONCE A CRIMINAL CHARGE OR COUNT DISCLOSES AN OFFENCE PROVIDED FOR IN A STATUTE, A COURT OF LAW WILL BE VESTED WITH JURISDICTION TO ADJUDICATE AND PRESCRIBE PUNISHMENT THEREUNDER
The law is equally trite that, the most important thing in criminal proceedings is that, once a criminal charge or count discloses an offence provided for in a statute, a court of law will be vested with jurisdiction to adjudicate and prescribe punishment thereunder. I refer in this regard to the provisions of Section 166 of the Criminal Procedure Act, a statute of general application in criminal proceedings in Nigeria, which provides regarding the preferment of offences known to law that, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. The position has remained unchanged as stated by the learned counsel for the Respondent that, even a defect in a charge or count will not vitiate a trial except where such a defect occasioned a miscarriage of justice. See the cases of:
(1) F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) p. 113;
(2) Agbo v. The State (2006) 6 NWLR (Pt. 977) p. 545;
(3) Shekete v. N.A.F (2007)14 NWLR (Pt. 1053) p. 159; and
(4) Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) p. 1. PER OMOLEYE, J.C.A.
WHETHER OR NOT THE DEFECT OF DUPLICITY OF OFFENCES IS SUFFICIENT REASON TO VITIATE A TRIAL
The two offences with which the Appellant was charged in the two separate counts are within the confines of the law, in the instance, Section, 18 (1) (a) of the Banks and Other Financial Institutions Decree. This is all that is required by law. What is more, it is settled law that the defect of duplicity without more is not sufficient reason to vitiate a trial. Therefore unless an of appellant has been prejudiced in any way and a miscarriage of justice has been occasioned him, an appellate court will not interfere with the proceeding of a trial court queried for the ground of duplicity of a charge. PER OMOLEYE, J.C.A.
OYEBISI F. OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Failed Bank Tribunal, Benin Zone per C.A.R. Momoh J. delivered on 11th December, 1998.
The brief background facts of this matter are that, among others, the Appellant was charged with the following counts vide the Amended Charges VIZ:-
Count 1: That you, Alhaji Mohammed Kabir Mamman (m) and Alhaji Abubakar Mohammed (m) between the 25th day of November, 1993 and 3rd day of December, 1993 at Kano within the jurisdiction of the Failed Bank (Recovery of Debts) and Financial Malpractices in Banks Tribunal, while acting as Manager/Head, Customer Services and Customer respectively of Allied Bank of Nigeria Plc., Kano Main branch, conspired with one another to commit a felony to wit stealing various sums of money totaling N61,075,000.00 (Sixty One Minion, Seventy Five Thousand Naira), property of Allied Bank of Nigeria Plc, and thereby committed an offence contrary to Section 516 of the Criminal Code Act Cap 77, Laws of the Federation of Nigeria.
Count 9: That you, Alhaji Mohammed Kabir Mamman (m) between the 25th day of November, 1993 and 3rd of December, 1993 at Kano within the jurisdiction of this Tribunal, whilst being Relief Manager of Allied Bank of Nigeria Plc., Kano branch, granted unauthorized advances or credit facilities totaling N61,075,000.00 (Sixty One Million, Seventy Five Thousand Naira) to your Customer, one Alhaji Ibrahim Mohammed (m), in violation of the Rules and Regulations of the Bank and thereby committed an offence Contrary to Section 18(1)(b) of the Banks and Other Financial Institutions Decree No.25 of 1991.
Count 10: That you, Alhaji Mohammed Kabir Mamman (m) between the 25th day of November, 1993 and 3rd of December, 1993 at Kano within the jurisdiction of this Tribunal, whilst being Relief Manager of Allied Bank of Nigeria Plc., Kano main branch granted unauthorized advances or credit facilities totaling N61,075,000.00 (Sixty One Million Seventy Five Thousand Naira) to your Customer, one Alhaji Ibrahim Mohammed (m) without adequate security in Contravention of Rules and Regulations of the Bank thereby committed an offence contrary to Section 18(1) (b) of the Banks and Other Financial Institutions Decree No. 25 of 1991.
Count 11: That you, Alhaji Mohammed Kabir Mamman (m) between the 25th day of November, 1993 and 3rd of December,1993 at Kano within the jurisdiction of this Tribunal, whilst being Relief Manager of Allied Bank of Nigeria Plc, Kano main branch failed to take reasonable steps to secure compliance by your employers, Allied Bank of Nigeria Plc., with the requirements of Section 20 (1)(a)of the Banks and Other Financial Institutions Decree No. 25 of 1991 in that Allied Bank of Nigeria Plc., without the prior approval in writing of the Central Bank of Nigeria granted credit facilities or advances of N67,316,948,00 (Sixty Seven Million, Three Hundred and Sixteen Thousand, Nine Hundred and Forty Eight Naira) to your Customer Alhaji Ibrahim Abubakar Mohammed which total value is more than twenty percent of the shareholder’s fund unimpaired by losses and thereby Committed an offence contrary to Section 46 of the Banks and Other Financial Institutions Decree 1991.
Count 12: That you, Alhaji Mohammed Kabir Mamman (m) between the 25th day of November, 1993 and 3rd of December, 1993 at Kano within the jurisdiction of this Tribunal, whilst being Relief Manager of Allied Bank of Nigeria Plc., Kano main branch with intent to defraud, falsely retained and suspended various dud cheques issued by one Alhaji Ibrahim Abubakar Mohammed, a Customer of Allied Bank of Nigeria Plc., Kano main branch in the Bank’s “Cheques Retained Overnight Account” and I thereby committed an offence contrary to Section 435 (2)(a) of the Criminal Code Act Cap 77, Laws of the Federation of Nigeria, 1990. (The underlined, is for emphasis).
See the amended charge contained in pages 4 to 7 of the record of appeal.
At trial, the prosecution in the bid to prove its case called six witnesses. The Appellant gave evidence in his defence but he did not call any witness. Several exhibits were tendered in evidence, and these are marked exhibits FBI – FB90. The Tribunal in its considered judgment discharged the Appellant on counts 1, 10 and 12; but convicted him on counts 9 and 11. He was dissatisfied with the said judgment, hence, by the order of this Court made on 28th September, 2006, he appealed against it. The notice and grounds of appeal is dated 28th June, 2006 and it contains four grounds of appeal. For easy reference, the five grounds of appeal are hereunder reproduced with their particulars thus:
GROUND ONE
The trial Tribunal erred in law when it convicted the accused Appellant on counts 9 and 11 of the charge on the uncorroborated evidence of a tainted and biased witness.
PARTICULARS OF ERROR
(1) The PW4 who testified against the appellant was the substantive Manager who came to take over from the accused person.
(2) Not one member of the staff was called to corroborate the evidence of PW4.
(3) Having admitted that he (PW4) resumed in the Branch but that he was not the Manger, he withheld the documents that would pin him with the transaction despite notice to reproduce.
(4) PW4 in evidence admitted that credit notes were inegal and forbidden yet the ones he himself issued were tendered in evidence.
(5) The learned trial Judge failed to warn himself of the admittedly bad character of PW4.
GROUND TWO
The Tribunal erred in law by dividing the offence under Section 18 (1) (b) into 2 that is counts 9 and 10. Tribunal having found the Appellant not guilty on count 10 it was not open for it to find the Appellant guilty on count 9.
PARTIUCLARS OF ERROR
1. S. 18 (1) (b) of Banks and Other Financial Institution Decree 1991 provides, “No Manager or any other officer of the bank shall grant any advance, loan or credit facility to any person unless it is authorized in accordance with the 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.”
GROUND THREE
The learned trial Judge erred in law in convicting the accused on count 11 when the Judge held thus “The accused had no defence to the charge.”
PARTICULARS OF ERROR
(1) The burden of proof of the alleged offence lies always with the prosecution.
(2) There is no burden on the accused person to raise any defence when the charge against him has not been established.
(3) The accused person was denied his right to fair hearing as entrenched in the Constitution.
GROUND FOUR
The Tribunal misdirected itself by holding that the Appellant was the relief Manager at the time of offence when a substantive manager had taken over or resumed duty at the branch.
PARTICUALRS OF MISDIRECTION
(1) There was uncontroverted evidence that PW4, the substantive manager resumed duty on 22/11/93.
(2) There was no evidence that another person was posted to take over the Customer service function, which was substantive function of the accused person.
(3) There is evidence that the current account officer would normany confirm that there is credit balance to absorb a cheque, before endorsing the cheque and then forward same to the accused person to counter sign.
(4) There is also evidence that this current account officer was not invited to corroborate the evidence of accused person.
(5) There was unchallenged and uncontroverted evidence that the incident of granting unauthorized loan occurred between 26th November, and 3rd December, 1993 after the resumption of the substantive manager.
(6) There was also unchallenged evidence that it is only a Branch Manger that can grant loans.
(7) There is evidence that the said PW4 who said he had not taken over was the one who went to the 3rd accused to inform him that his cheque has bounced.
Exhibit 55 and 57 were not controverted.
GROUND FIVE
The judgment is against the weight of evidence, unreasonable and cannot be supported having regard to the evidence.
In the brief of argument filed for the Appellant by his learned counsel, three issues were distined for determination. They state as follows:-
(1) Whether on the totality of the unocontradicted evidence and exhibits before the court, the trial Judge was right in holding that the appellant was still directing the operations of the Branch?
(2) Whether the trial Judge was right in convicting the Appellant on count 9 having found him not guilty on count 10?
(3) Whether there was sufficient evidence to support the conviction of the Appellant on count 11?
On the other part, the learned counsel for the Respondent in the brief of argument filed for the Respondent formulated two Issues for the determination of this appeal. These are:
(1) Whether the conviction of the Appellant on count 9 is sustainable considering firstly, the Appellant’s claim of not being in charge of the operations of the branch at the time of the commission of the offence and secondly for duplicity?
(2) Whether the conviction of the Appellant on count 11 of the charge is justified by the evidence available at the trial Court?
On 2nd February, 2010 when this appeal was heard by this Court, the learned counsel for the Appellant; Mrs. E.A. Uwaifo adopted and relied upon both the Appellant’s amended brief of argument dated 21st October, 2009 and filed on 23rd October, 2009 and the Appellant’s reply brief of argument dated 12th April, 2009 filed 23rd December, 2009. And he urged that the appeal be allowed. On the other part, the learned counsel for the Respondent, Mr. Emeka Etiaba adopted and relied on the Respondent’s brief of argument dated 20th October, 2009 filed on 29th October, 2009 in urging this Court to dismiss the appeal.
I am of the view that issue numbers 2 and 3 as formulated in the Appellant’s brief of argument are apposite to the proper resolution of this appeal. Therefore, I hereby adopt same. I shall consider them seriatim together with those formulated for the Respondents as applicable, as issues one and two.
Before proceeding, I will pause for purposes of easy reference and clarity, to reproduce hereunder the provisions of Sections 18, 20 and 46 of the Banks and Other Financial Institutions Decree,.1991(hereinafter referred to as the Decree) under which the Appellant was charged to the Tribunal viz:
18(1) No manager or any other officer 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 authorized 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.
(3) Every director of a bank who has any personal interest, whether directly or indirectly, in an advance, loan or credit facility, or proposed advance, loan or credit from that bank, shall, as soon as practicable, declare the nature of his interest to the board of directors of the bank, and the secretary of the bank shall cause such declaration to be circulated forthwith to all directors.
(4) The provisions of subsection (3) of this section shall not apply in any case:-
(a) where the interest of the director consists only of being a member holding less than five per cent of the shares of a company which is seeking an advance, loan or credit facility from the bank; or
(b) if the interest of the director may properly be regarded by the Bank as not being material.
(5) For the purpose of subsection (3) of this section, a general notice given to the board of directors of a bank by a director of such bank to the effect that he is:-
(a) an officer or member holding five per cent or more of the shares of company or firm specified in the notice; and
(b) to be regarded as having personal interest in any advance, loan or credit facility which may after the date of the notice, be made to that company or firm, shall be deemed to be a sufficient declaration of interest in relation to any such advance, loan or credit, if:-
(i) the notice specifies the nature and extent of his interest in the company or firm;
(ii) the interest is not different in Nature to or greater in extent than the Nature and extent specified in the notice at the time the advance, loan or credit facility is made; and
(iii) the notice is given at the meeting of the board of directors or the director takes reasonable steps to ensure that it is brought up and read at the next meeting of the board of directors after it is given.
(6) Every director of a bank who holds any office or possesses any property whereby, whether directly or indirectly, duties or interests might be created in conflict with his duties or interest as a director of a hank, shall declare at a meeting of the board of directors of the bank, the fact and the Nature, character and extent of the interest.
The declaration referred to in subsection (6) of this section shall be made at the first meeting of the board of directors held:-
(a) after he became a director of the bank; or
(b) if already a director, after he came into possession of the property .
(8) the Secretary of the bank shall cause to be brought up and read, any declaration made under subsection (3) or
(6) of this section at the next meeting of the board of directors after it is made, and shall record any declaration made under this section in the minute of the meeting at which it was made or at the meeting in which it was brought up and read.
(9) Any director who contravenes subsection (3) or (6) of this section is guilty of all offence under this section and liable Oil conviction to a fine of N100,000 or to imprisonment for a term of 3 years or to both such fine and imprisonment.
20 (1) A bank shall not without the prior approval in writing of the Bank, grant:-
(a) to any person any advance loan or credit facility or give any financial guarantee or incur any other liability on behalf of any person so that the total value of the advance, loan credit facility, financial guarantee or any other liability in respect of the person is at any time more than twenty per cent of the shareholders fund unimpaired by losses or in the case of a merchant bank not more than fifty per cent of its shareholders fund unimpaired by losses; and for the purpose of this paragraph all advances, loans or credit facilities extended to any person shall be aggregated and shall include all advances, loans or credit facilities extended to any subsidiaries or associates of a body corporate:
Provided that the provisions of this paragraph shall not apply to transactions between banks or between branches of a bank or to the purchase of clean or documentary bins of exchange, telegraphic transfers or documents of title to goods the holder of which is entitled to payment for exports from Nigeria or to advance made against such bills, transfers or documents;
(b) any advances, loans or credit facilities against the security of its own shares or any unsecured advances, loans or credit facilities unless authorized in accordance with the bank’s rules and regulations and where any such rules and regulations require adequate security, such security shall be provided or, as the case may require, deposited with the bank.
(2) a bank shall not, without the prior approval in writing of the Bank:-
(a) permit to be outstanding, unsecured advances, loans or unsecured credit facilities, of an aggregate amount in excess of N50,000:-
(i) to its directors or any of them whether such advances, loans or credit facilities are obtained by its directors jointly or severally;
(ii) to any firm, partnership or private company in which it or anyone or more of its directors is interested as director, partner, manager or agent or any individual firm, partnership or private company of which any of its directors is a guarantor;
(iii) to any public company or private company in which it or anyone or more of its directors jointly or severally maintains shareholding of Not less than five per cent either directly or indirectly;
(b) permit to be outstanding to its officers and employees, unsecured advances, loans or unsecured credit facilities, which in the aggregate for anyone officer or employee, is an amount which exceeds one year’s emolument to such officer or employer;
(c) engage, whether on its own account or on a commission basis, in wholesale or retail, including the import or export trade, except in so far as may exceptionally be necessary in the course of the banking operations and services of that bank or in the course of the satisfaction of debts due to it; so however that nothing in this paragraph shall be construed as precluding a bank from undertaking equipment leasing business or debt factoring provided that the foregoing provisions of this paragraph shall not apply to a bank in the circumstances permitted under section 21 of this Decree;
(d) without prejudice to the provisions of section 21 of this Decree, acquire or hold any part of the share capital of any financial or commercial or other undertaking except:-
(i) any shareholding approved by the bank in any company set up/or the purpose of promoting the development of the money market or capital market in Nigeria or of improving the financial machinery for financial economic development;
(ii) any shareholding approved by the Bank pursuant to sub-paragraph (i) of this paragraph, the aggregate value of which does not at any time exceed twenty-five per cent of the sum of paid-up share capital and statutory reserves of that bank;
(iii) all shareholding acquired by a merchant bank while managing equity issue.
Provided that the aggregate value of such acquisition does not at any time exceed the sum of the paid-up share capital of that merchant bank or ten per cent of its total assets, excluding contracts items, which ever is higher and that his paragraph shall not apply to any nominee company of a bank which deals in stock and shares for or on behalf of the bank’s Customers or clients or majority interest acquired by a merchant bank in a company while managing an equity issue;
(e) remit, either in whole or in part, the debts owed to it by any of its directors or past directors;
(f) purchase, acquire or lease real estate except as may be necessary for the purpose of conducting its business including provisions for foreseeable future expansion or housing of its staff or other exceptional circumstances, where the agreement of the bank is obtained;
(g) sell, dispose or lease out any real estate.
(3) Notwithstanding the foregoing provisions of this section, a bank may secure debt on any real or other property , and in default of repayment, may acquire such property and exercise any power of sale, as may be provided for in any instrument or, by law prescribed, immediately upon such default or soon thereafter as may be deemed proper.
(4) In paragraphs (a) and (b) of subsection (2) of this section, the expressions “unsecured advances and loans” or unsecured credit facilities, mean advances, loans or credit facilities made without security, or in respect of any advances, loans or credit facilities made with security, any part thereof which at any time exceeds the market value of the assets constituting the security, or where the bank is satisfied that there is no established market value, the value of the assets as determined on the basis of a valuation approved by the bank.
(5) In paragraphs (a) and (e) of subsection (2) of this section, the expression “director”, includes director’s wife, husband, father, mother, brother, sister, son, daughter and their spouses.
(6) All the directors of a bank shall be liable jointly and severally to indemnify the bank against any loss arising from any unsecured advances, loans or credit facilities under paragraph (a) of subsection (2) of this section.
(7) Any bank which, after the commencement of this Decree, enters into any transaction inconsistent with any of the provisions of subsections (1) and
(2) of this section is guilty of an offence and liable on conviction to a fine of N1,000 for each day during which any such transaction continues.
46. Any person, being a director or manager of a bank, who fails to:-
(a) take all reasonable steps to secure compliance by the bank with the requirements of this Decree; or
(b) take all reasonable steps to secure the correctness of any statement submitted under the provisions of this Decree, is guilty of an offence and liable on conviction to a fine of N5,000 or to imprisonment for 5 years or to both such fine and imprisonment. (The underlined is for emphasis)
ISSUE ONE
Whether the trial Judge was right in convicting the Appellant on count 9 having found him not guilty on count 10?
The learned counsel for the Appellant submitted that counts 9 and 10 amount to duplicity of charges because they both relate to the same offence.
Contrarywise, it was submitted in favour of the Respondent that there is no feature in the two counts to suggest duplicity of charges. This is because in his view, under count 9, the Appellant was charged with granting unauthorized credit facility to the tune of N61,075,000.00 (Sixty One Minion, Seventy Five Thousand Naira) to Alhaji LA. Mohammed, a Customer of Allied Bank, Kano Branch, the Employer of the Appellant.
While under count 10, he was charged with granting the unauthorized credit without adequate security. The Respondent accordingly tendered in evidence the Rules and Regulations of the bank, Exhibit FB.45 the provisions of which do not allow for granting unauthorized direct credit.
It was contended that, the Appellant gave evidence that he granted the unauthorized credit to Alhaji I.A. Mohammed based on the fact that he was a valued Customer of the bank who had enjoyed that right from the moment he opened an account with the bank. And that this evidence amounts to an admission of a fact which requires no further proof on this position, reliance was placed on the cases of:
(1) Anason Farms Ltd. v. NAL Merchat Bank Ltd (1994) 3 NWLR (Pt. 331) p.241 at p. 252 para. G; and
(2) Ndavako v. Dantoro (2004) 13 NWLR (Pt. 889) at p.214 paras. G – H.
Based on this admission, the Tribunal was right to convict the Appellant the said count 9.
I have reproduced above the charge, that is, the counts and the sections of the law under which the counts were laid against the Appellant before the Tribunal. It is pertinent to state herein that, the terminologies, charge and count are used interchangeably in criminal proceedings hence, they shall be so used herein. The essence of a charge against a person is to afford the person the opportunity to know and grasp the reason he or she has been brought before a court of law, tribunal or judicial enquiry. A charge is a complaint or information as to the offence with which a person is accused and which is delivered to the person so accused or charged in a language that he understands with sufficient details of the alleged offence.
On a careful reading of the provisions of the Decree set out above, I have no hesitation in agreeing with the Respondent’s learned counsel that, in Count 9, the Appellant was charged with the offence of granting unauthorized credit facility; while in count 10, he was charged with granting unauthorized credit facility without adequate security. By the use of the word “and” which is a conjunction in Section 18(1) (b) of the Decree there is no doubt that, two offences have been created by the Section, see the underlined word in line three of Section 18(1) (b) set out above.
I am of the view and I hold that the grouse of the Appellant that one offence has been duplicated under Counts 9 and 10 does not hold water. The two offences with which the Appellant was charged in the two separate counts are within the confines of the law, in the instance, Section, 18 (1) (a) of the Banks and Other Financial Institutions Decree. This is all that is required by law. What is more, it is settled law that the defect of duplicity without more is not sufficient reason to vitiate a trial. Therefore unless an of appellant has been prejudiced in any way and a miscarriage of justice has been occasioned him, an appellate court will not interfere with the proceeding of a trial court queried for the ground of duplicity of a charge. Way back in 1987, in the case of Rex v. Nelson Asiegbu 3 WACA p. 142, the West African Court of Appeal therein refused and dismissed the appeal of the appellant therein refusing to quash the convictions of the appellant on the ground of duplicity. The court had the following to say per Kingdon, C.J. Nigeria.
“In this case the Court is satisfied that the facts proved establish the guilt of the appellant upon the two counts on which he was convicted. But Counsel for the Crown has very properly pointed out, in appellant’s interest, that the two counts are open to objection on the ground of duplicity.
In this case the appellant was represented at the trial by counsel, and so, if he was in any way prejudiced or embarrassed by the way in which the counts were framed, objection could and should have been taken. It was not, but instead the acts constituting the offences were admitted.
The fact that no objection was made in the lower court does not preclude an objection being taken here, but does lead us to be completely satisfied that the appellant was not prejudiced in any way and that no miscarriage of justice has resulted …”
In the instant case, counts 9 and 10 are distinct indictments on specific and precise conduct of the Appellant. The ingredients of counts 9 and 10 are “granting unauthorized credit facility” and “granting unauthorized credit facility without adequate security” respectively. The law is equally trite that, the most important thing in criminal proceedings is that, once a criminal charge or count discloses an offence provided for in a statute, a court of law will be vested with jurisdiction to adjudicate and prescribe punishment thereunder. I refer in this regard to the provisions of Section 166 of the Criminal Procedure Act, a statute of general application in criminal proceedings in Nigeria, which provides regarding the preferment of offences known to law that, no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. The position has remained unchanged as stated by the learned counsel for the Respondent that, even a defect in a charge or count will not vitiate a trial except where such a defect occasioned a miscarriage of justice. See the cases of:
(1) F.R.N. v. Ifegwu (2003) 15 NWLR (Pt. 842) p. 113;
(2) Agbo v. The State (2006) 6 NWLR (Pt. 977) p. 545;
(3) Shekete v. N.A.F (2007)14 NWLR (Pt. 1053) p. 159; and
(4) Ndukwe v. LPDC (2007) 5 NWLR (Pt. 1026) p. 1.
In the instant matter, there is no doubt that the Appellant was not in any way confused or misled by the wordings of both counts and the purport of same. He was very much aware of the offence he was alleged to have committed. His trial at the Tribunal in which he was duly represented by a legal practitioner was quite elaborate. Evidence was led in support of the case of the prosecution and he equally amply presented his defence in response to all the counts preferred against him. This accounted for his discharge and acquittal on some of those charges. The complaint of the Appellant herein must also be discountenanced because, having been actually found not guilty of count 10, count 9 will still stand as it can not be said that he will be doubly jeopardized. For the above stated reasons, I hold that the Appellant’s complaint of duplicity is baseless, unsubstantiated in law and it is hereby discountenanced.
Regarding the second limb of this issue, which is whether or not the conviction of the Appellant for the alleged offence in count 9 was proper in law, it is apposite to identity, the ingredients of the alleged offence. In my view, before the Appellant herein can be convicted of the said offence, it must be established that:
(1) The Appellant is either a manager or an officer of a bank;
(2) The Appellant granted an advance or a loan or credit facility to a person; and
(3) The Appellant under the rules and regulations of the bank is devoid of authority to grant such advance or loan or credit facility.
Although, a very heavy weather was made of the status of the Appellant, both at the trial and in the briefs of argument of the learned counsel for the respective parties in this appeal, this fuss in my firm view is absolutely uncalled for in the light of the provisions of Section 18 (1) (b) of the Decree upon which count 9 is predicated. Under the said provisions, an accused can either be a manager or an officer of a bank. From the printed record of appeal, the Appellant was an officer of the bank whether as a Relief/Acting Manager as contended by the Respondent or Head of Customer Services as claimed by the Appellant himself. Therefore, I have no hesitation in resolving that, even if the Appellant was not a manager, he was an officer of Allied Bank of Nigeria Plc, Kano branch, at the time he was accused of granting credit facilities to Alhaji LA. Mohammed, a Customer of the said bank.
On the next point, it is crystal clear from the record of appeal that various sums were granted to Alhaji I.A. Mohammed as direct facilities on different occasions. The learned trial Judge held in this regard as follows:
The 1st accused in his statement to police (sic) and evidence in defence did not dispute that he participated in authorizing the direct credit to the 3rd accused on cheques issued and lodged by the 3rd accused. The 1st accused said in evidence that the 1st accused had always enjoyed direct credit facility… He said he could not stop the indulgence allowed the 3rd accused. His evidence is in line also with the defence of the 2nd accused and the evidence of prosecution witnesses that 3rd accused was a cherished Customer who always enjoyed direct credit facility without authority…
In his evidence on oath in defence, the 1st accused admitted in evidence that he was cosignatory with the Manager P.W.4 of bank instruments like cheques… and that he the 1st accused was never queried for allowing the direct credit. Rather, he was promoted to the rank of a Deputy Manager vide letter dated 31/12/93 admitted as Exhibit FB77.
The above reproduced findings of facts by the Tribunal are contained in pages 86 to 87 of the record of appeal. I agree with the said findings of facts, they are borne out of the evidence adduced before the Tribunal.
Regarding the question, whether or not the Appellant granted the facilities in contention in accordance with the rules and regulations of the bank, recourse must be and is hereby had to the provisions of the said rules and regulations, that is, Exhibit FB. 45. Exhibit FB. 45 are contained in pages 197 to 205 of the record of appeal. It is dated 29th April, 1992 and embodied therein are credit guidelines. These were the prevailing guidelines for granting credit facilities at the time the Appellant was alleged to have granted unauthorized credit facilities to Alhaji I.A. Mohammed Paragraph (i) thereof contained in p. 205 of the record of appeal provides as follows:
With the exception of Executive Management, no officer in the bank has any approving limit for credit facilities as there is an embargo on lending.
From the above stated provisions, no officer of the bank was empowered to grant any category of credit facility. Rather, it was only the management of the bank that was authorized to grant credit facilities. I have perused the printed record and I am unable to find any other guideline issued by the bank reversing the said provisions. In short, there was an embargo as clearly spelt out in the credit guidelines on granting credit facilities by any officer of the bank be it, a Manager, Head of Customer Services or any other category of Officer of the bank. At the time the credit facilities in contention were granted to Alhaji I. A. Mohammed, the embargo was still in place, it had not been lifted.
At pages 89 to 90 of the record, the learned trial Judge held as follows:
The 1st accused to my mind contributed in perpetuating the irregularity, if not illegality, associated with the instant credit facility granted to the 3rd accused irrespective of the huge amount involved and irrespective of the embargo imposed on granting such facility. The Rules and Regulations shown to have been violated are found in Exhibit FB.45. The 1st accused was not authorized or empowered by the bank to grant direct credit as he did.
It was granted contrary to the Regulation and Circular of the bank Exhibit FB. 45 disallowing the grant of credit facility. The direct facility allowed the 3rd accused was unauthorized and thereby rendered the 1st accused liable to conviction on count 9 under Section 18(1) (b) of BOFID.
I can not agree more with the above stated conclusions of the learned trial Judge. The defence of ignorance of the credit guidelines glibly relied upon by the Appellant and his excuse that Alhaji I.A. Mohammed had long been accorded special privileges of credit facilities from the bank’s Kano branch are of no moment and can not avail him. Unfortunately for the Appellant, he got ensnared and shackled when he contravened his employer’s guidelines with his two eyes wide opened and his understanding antenna properly tuned. He has himself to blame for his indiscretion.
In my sincere view, the Tribunal made far-reaching findings of fact after assessment and evaluation of the evidence adduced before it. Unhesitatingly, I hold that the case against the Appellant on count 9 was proved. The time-honoured position of the law is that, where a court of trial unmistakenly evaluates the evidence and duly appraises the facts adduced before it as in the present matter, it is not the business of an appellant court to substitute its own views for the views of the trial court unless such trial court’s views are perverse. Our law reports are replete with a plethora of authorities in support of this legal principle. See the cases of:
(1) Woluchem v. Gudi (1981) 5 SC p. 291;
(2) Awoyale v. Ogunbiyi (1986) 4 SC p. 98 at p. 120; and
(3) Sha (Jnr) v. Kwan (2000) 8 NWLR (pt. 670) p. 685.
I am of the view that the findings of the Tribunal as a trial Court are not perverse as they were hinged on the credible evidence adduced before it. Therefore, this Court has no reason to interfere with the said findings of fact. The line of reasoning and conclusions of the Tribunal are sound. I hold that the Tribunal adequately and properly appraised and evaluated the evidence adduced before it on the gravamen of this issue. Consequently, I resolve this issue against the Appellant and in favour of the Respondent.
ISSUE TWO
Whether there was sufficient evidence to support the conviction of the Appellant on count 11
It was argued in favour of the Appellant that, it is the bank’s management and board of directors that is culpable under the provisions of Sections 20 (I) (a) and 46 of the Decree and not the Appellant who is merely an employee of the bank. Therefore, it is the management and the board of directors that ought to have been charged thereunder. And the Tribunal ought not to have convicted the Appellant under Section 46 for failure of Allied Bank to comply with the provisions of Section 20(1) (a) of the I Decree.
The learned counsel for the Respondent under this issue submitted that, all the prosecution needed to prove to secure a conviction on count II was the establishment of the paid-up share capital of the bank, evidence having been adduced that the Appellant granted unauthorized direct credit to Alhaji LA. Mohammed to the tune of over Sixty One Million, Seventy Five Thousand Naira (N61,075,000). That in this regard, PW1 tendered the Form of Annual Return of the bank Exhibit FB3 which disclosed that the share capital of the bank, at the time of the commission of the offence was Twenty Five Million Naira (N25,000,000). He contended that the Appellant as an officer of the bank ought to have ensured that the approval of the Central Bank was obtained in the circumstances before granting the facility. Having failed in that regard, it was the Appellant that was in grave breach of Section 20(1) (a) of the Decree.
I have also set out above the provisions of Sections 20 (1) (a) and 46 of the Decree under which the Appellant was charged as laid out in count 11. The point that calls for resolution under this issue is very simple and straight forward. Section 20 of the Decree deals with restrictions on certain banking activities. The offences created under Section 20 are specifically against a “bank”. Before proceeding further, it is important to know the definition of the word “bank”. Under the provisions of Section 61 of the Decree, the word “bank” is defined as, “a bank licensed under the Decree”. It is crystal clear that, it is a bank and not any of its employees that is made liable for failure to comply with the provisions of Section 20(1) (a) of the Decree. This is the reason I completely disagree with the submissions of the Respondent’s learned counsel that the inability of the bank through the Appellant to secure the Central Bank’s approval to grant a facility exceeding twenty percent of the bank’s shareholders’ fund to a single obligor completely makes it an offence for the Appellant to grant same. On the contrary, the Appellant’s learned counsel submitted that an employee of a bank can not be made criminally liable for its acts. And that it is a bank through its board of management and directors that is liable to be charged contrary to the provisions of Section 20 (1) (a). I agree with the said submissions of the learned counsel for the Appellant. For it is the exclusive mandatory prerogative of a bank to seek and obtain in writing the approval of the Central Bank before granting to any person any advance, loan or credit facility exceeding twenty percent of the bank’s shareholders’ fund. See also Section 20 (7) of the Decree which provides that, any “bank” which, after the commencement of the Decree, enters into any transaction inconsistent with any of the provisions of Section 20(1) and (2) of the Decree is guilty of an offence and liable on conviction to a fine of One Thousand Naira for each day during which any such transaction continues. Indeed, it is clear that Section 20(7) and not Section 46 of the Decree is the punishment section for the offence created by Section 20(1) (a). Section 46 on its own creates other offences by directors and managers of banks.
From my above elucidation, I am of the firm opinion and I hold that, the findings of the learned trial Judge that the Appellant was guilty as charged in count 11 is perverse. The findings in this regard are not in tandem with the evidence adduced before it vis-a-vis the relevant provisions of the law, in the instance, the Decree. At best, the Appellant can only be disciplined by Allied Bank, his employer for granting the said credit facility in violation of the banks’ rules and regulations.
Consequently, issue two succeeds, it is resolved in favour of the Appellant and against the Respondent.
On the whole, for the reasons stated above by me, this appeal succeeds in part and it is hereby allowed appropriately. The conviction and sentence of the Appellant pursuant to count 9 of the Amended Charge by the Tribunal are affirmed and confirmed respectively and accordingly. However, the Appellant’s conviction and sentence on count 11 are quashed and I hereby order that the said count 11 against the Appellant be struck out.
AMINA A. AUGIE, J.C.A.: I have read the lead Judgment delivered by my learned brother, Omoleye, JCA, and I agree with his reasoning and conclusion. He has dealt extensively with the issues canvassed in the appeal, and I have nothing useful to add except to reiterate the point made that the Appellant cannot complain about duplicity. The main purpose of a charge is to give the accused person notice of the case against him. See Odeh V. F.R.N. (2008) 13 NWLR (pt. 1103) 1 SC, where the Supreme Court added that where irregularity has been alleged in a trial, the burden is on the accused to establish that the alleged irregularity led to substantial miscarriage of justice, and where the Appellant does not show that the presence of irregularity led to a miscarriage, it will be assumed that there was none. In this case, the onus of proving irregularity and miscarriage of justice was entirely on the Appellant, and he failed to discharge it, thus, the issue thereon is resolved against him.
Nevertheless, I agree with my learned brother that the appeal should be allowed in part for the reasons stated in the lead Judgment, and I also abide by the consequential orders in the said lead Judgment.
CHIOMA EGONDU NWOSU-IHEME (Ph. D), J.C.A.: I agree entirely with the lead Judgment delivered by my learned brother, OYEBISI F. OMOLEYE, JCA. There is therefore no need to dwell further on the said Judgment. I also abide by the order as to costs.
Appearances
Mrs. E. A. UwaifoFor Appellant
AND
Emeka EtiabaFor Respondent
