SURAJ ADEJUMO v. THE STATE
(2019)LCN/12673(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of February, 2019
CA/B/458C/2017
RATIO
CRIMINAL LAW: PROOF BEYOND REASONABLE DOUBT
“The law is that a criminal accusation should be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340. Even in civil cases, by virtue of Section 135(1) of the Evidence Act, 2011 an allegation of crime must be proved beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR 1 and Maihaja v. Gaidam (2018) 4 NWLR (Pt.1610) 454. However, the requirement that a criminal charge should be proved beyond reasonable doubt does not mean that it must be proved beyond any shadow of doubt. See Miller v. Minister of Pensions (1947) 2 All ER 372, per Lord Denning; Mufutau Bakare v. The State (1987) 3 SC 1 at 37, per Oputa, JSC; Golden Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 at 56 – 57, per Niki Tobi, JSC and Kwame Wisdom v. The State (2017) 14 NWLR (Pt. 1586) 446 at 464, per Ariwoola, JSC.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES:
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
SURAJ ADEJUMO – Appellant(s)
AND
THE STATE – Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.(Delivering the Leading Judgment):
The appellant was tried and convicted by the High Court of Edo State, Benin Criminal Division, holden at Benin City of the following offences:
COUNT I:
That you Suraj Adejumo (m) being the Managing Director of New Consonant Ltd on or about the 31st day of October, 2011, in Benin City, in the Benin Judicial Division, did issue a First Bank Plc Cheque of three million, Seventy one thousand, two hundred and fifty naira (N3,071,250.00) only in favour of Africa Market Technology Ltd in settlement of a debt which when presented on due date was dishonoured on the ground that there was insufficient funds in the account standing to your credit and thereby committed an offence under Section 1 (1)(b) of the Dishonoured Cheques (Offences) Act, Cap. D11, Laws of the Federation of Nigeria, 2004.
COUNT II
That you Suraj Adejumo (m) being the Managing Director of New Consonant Ltd on or about the 2nd day of December, 2011, in Benin City, in the Benin Judicial Division, did issue a Oceanic Bank International Plc (Now Eco Bank Nig. Plc) cheque of fifty thousand naira (#50,000.00) only in favour of Africa Market Technology Ltd in settlement of a debt which when presented on due date was dishonoured on the ground that there was insufficient funds in the account standing to your credit and thereby committed an offence under Section 1 (1)(b) of the Dishonoured Cheques (Offences) Act, Cap. D11, Laws of the Federation of Nigeria, 2004.
The judgment of the trial Court in Charge No. B/CD/301C/2013 was delivered on the 28th day of April, 2017 and this appeal is against it. The notice of appeal was filed on 15/06/2017 and it contains the following grounds:
GROUNDS OF APPEAL
(A)The judgment is against the weight of evidence.
(B)The learned trial judge erred in law when she held the accused/appellant liable for issuing a dud/dishonoured cheque not dated by him.
PARTICULARS OF ERROR
(i)For a cheque to have been issued, it must be dated amongst other requirements.
(ii)There were sufficient evidence before the Court to show that the accused/appellant did not date and therefore did not issue the cheque in this appeal.
(iii)The prosecution failed woefully to prove that the accused/appellant did really issue the cheque upon which he was convicted.
(C)The learned trial judge erred in law when she found the accused/appellant guilty rather than a company and proceeded to convict the accused/appellant.
PARTICULARS OF ERROR
(i)Evidence abound in this appeal that the transaction for which the accused/appellant was convicted was between two companies.
(ii)Furthermore, there was a misjoinder/non joinder of offenders and offences which led to substantial miscarriage of justice.
(iii)S.2. Dishonoured Cheques (Offences) Act, 2004 is very relevant to this appeal.
In his brief filed on 31/10/2017, learned counsel for the appellant formulated two issues for determination as follows:
1. Whether the appellant can be held to have issued a dud/dishonoured cheque when evidence abound during trial that he did not date the said cheques and did not authorize the date inserted on such cheques (Ground B, Notice of Appeal)
2.Whether the appellant can be held liable in his personal capacity for the act of his company. (Ground C, Notice of Appeal)
On behalf of the respondent, two issues were also distilled in the respondents brief filed on 05/04/2018 as follows;
1.Whether the prosecution has been able to adduce sufficient evidence to prove the ingredients of the offence of Insurance of Dud Cheques.
2.Whether the accused can be held liable in his personal capacity for the fraudulent Insurance of Dud Cheques.
The issues identified by the parties are actually the same. However, since the issues distilled by the appellant are properly tied and related to his grounds of appeal, I adopt the issues as formulated by learned counsel for the appellant to determine this appeal.
As can be seen from the two issues framed by the appellant, no issue has been distilled or related to the appellants first ground of appeal, and that ground of appeal is hereby struck out for being abandoned. The law is that a ground of appeal to which no issue is attached is deemed abandoned and such a ground is liable to be struck out. See Modupe v. The State (1988) 4 NWLR (Pt. 87) 130; Rasheed Olaiya v. The State (2010) 3 NWLR (Pt. 1181) 423 and Isikilu Olanipekun v. The State (2016) 13 NWLR (Pt. 1528) 100.
ISSUE NO. 1
Whether the appellant can be held to have issued a dud/dishonoured cheque when evidence abound during trial that he did not date the said cheques and did not authorize the date inserted on such cheques (Ground B, Notice of Appeal)
Learned counsel for the appellant argued that under Section 1(1) (b) of the Dishonoured Cheques (Offences) Act, 2004 the fundamentals or essential elements or ingredients are:
(a) a dated cheque must have been issued with intent to obtain credit.
(b)presentation of cheque for payment not later than three months after the date of the cheque.
(c)cheque dishonoured on the ground of no fund or insufficient funds standing to the credit of the drawer of the cheque (appellant) in the bank on which the cheque was drawn.
He contended that exhibits D and E are memorandum checks (cheques) and were not issued with intent to defraud but in satisfaction of a common condition to be fulfilled in a commercial transaction especially since they were issued undated with the understanding that they were to serve as a guarantee for the sum of money New Consonant Ventures received from African Market Technology Limited as confirmed by exhibit H and P.W.2. On the meaning of Memorandum check, learned counsel referred the Court to Blacks Law Dictionary (Seventh Edition) pages 230-231.
The learned counsel for the appellant argued that there were contradictions in the prosecutions evidence. In this respect, learned counsel contended as follows:
During trial, P.W.1 admitted that as at the time when Exhibits D & E were issued to him, they were undated. He claimed however that appellant consented to the dates inserted on the cheques when he called appellant. Appellant however denied this. P.W.2 was the Investigating Police Officer (I.P.O.). Under cross examination at Page 33 of the Records of Appeal, he initially stated that P.W.1 never told him that the cheques were dated but changed his evidence by admitting that P.W.1 actually stated in his statement before the police that the cheques were undated and the dates were not inserted by the appellant. It is true that the P.W.1 statement indicated that the cheques were not dated by the accused.
Learned counsel for the respondent, on the other hand, submitted that the ingredients of the offences were proved by sufficient evidence adduced by the prosecution.
He submitted, amongst other things, that exhibits D and E are not memorandum checks as the facts clearly point out that no loan was sought to be obtained neither was any given, what the facts represent are a clear breach of contractual agreement.
The learned counsel for the respondent submitted that there are no contradictions in the totality of evidence adduced by the prosecution.
Section 1(1)(b) of the Dishonoured Cheques (Offences) Act, 2004, under which the appellant was charged provides thus:
1. Offences in relation to dishonoured cheques, etc.
(1) Any person who
(a)
(b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or sufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall
(a)in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and
(b)in the case of a body corporate, be sentenced to a fine of not less than N5,000.
In its judgment, the trial Court summarized the facts of the case, on pages 96-97 of the record of appeal, as follows:
Briefly, PW1 and the accused entered into a contract sometime in November 2009 and executed a Trade Agreement (Exhibit H) which they both agreed will be binding on them. As at 2011, Africa Market technology Ltd had invested the sum of N4,777,550 into the business. Sometime in September 2011, the accused sent a letter (Exhibit A) requesting for a 50% slash on the weekly returns. In response, PW1 sent a reply (Exhibit B) asking for the liquidation of the sum of N3,710,250. The Accused agreed to this request and they both consented that the cheque (Exhibit D) should be dated the 31st day of October, 2011. Upon presentation of the cheque at the bank by PW1, it was dishonoured for lack of sufficient fund. The Accused then assured him that he would pay the money along with the outstanding returns which he fixed at N150,000.00 and attached a cheque (Exhibit E) valued N50,000.00. The cheque (Exhibit E) was presented at the bank but was also dishonoured for lack of sufficient fund.
After the Accused failed to pay the outstanding sum and the cheques dishonoured, PW1 reported to the police.
PW2 is the Investigating Police Officer, he obtained the statement of the Accused which was admitted as Exhibit F. He also tendered the First Bank cheque with No. 00185436 marked Exhibit D and the Oceanic Bank (now Eco Bank) cheque with NO. 00000063 marked Exhibit E.
I have read the record of proceedings including the oral and documentary evidence tendered before the trial Court. The transaction between the appellant and the complainant Africa Market Technology Limited is essentially documentary.
The agreement between the parties was for the complainant to invest the sum of N3,412,500.00 (Three million, four hundred and twelve thousand, five hundred naira only) as an investment fund in favour of the Fund Manager namely: New Consonant Limited represented by MR. SURAJ ADEJUMO the appellant. See exhibit H. Amongst other things, the parties agreed in clauses 5 9 of exhibit H as follows:
5. That either of the parties to this agreement that is the Investor and the Fund Manager has the right to terminate this investment by giving ONE month notice only after SIX months from the date of commencement of this investment.
6. That the investor has the right to recall their investment with immediate effect, not considering recital (5) above if the Fund Manager fails in the payment of the weekly return for THREE CONSECUTIVE weeks.
7. The fund manager shall be liable in cases of theft, accident, loss, fire outbreak in their office on the account of investment fund in their possession.
8. That upon the termination of the investment, the Fund Manager shall return to the Investor the full value of their investment, that is Three Million, four Hundred and Twelve thousand, Five Hundred Naira (3,412,500.00) only, and all the accrued returns without delay.
9. That as an indemnity and a guarantee, at the signing of this agreement and upon the collection from the Investor the investment value of Three Million, Four Hundred and Twelve Thousand, Five Hundred Naira (3,412,500.00) only, the fund Manager has deposited a duly signed but undated cheque of the same investment value in favour of the Investor, which the Investor is mandated to present in the bank at the termination of their investment after termination procedure stated in recital (5) above has been duly satisfied or in case a situation in recital (6) above arise or to be used as a proof of the Fund Managers indebtedness to the investor.
A cumulative reading of the agreement between the parties shows that the investment agreement could be terminated by either party by giving one month notice only after six months from the date of commencement of this investment. Under clause 10 of exhibit H, they agreed that the content of this Trade Agreement upon signing shall be absolutely binding on both parties. On the face of exhibit H, the agreement was signed, sealed and delivered on 03/01/2011.
On 23rd September, 2011 by exhibit B, the complainant wrote to the appellant as follows:
Dear Sir,
PART LIQUIDATION OF INVESTMENT (4?? CD OF GLO RECHARGE CARDS)
We write to inform you that the management has approved part liquidation of our investment with your company. You will recall that our total investment with your company is N4,777,500.00 and we are collapsing investment worth N3,071,250.00 leaving a balance investment worth N1,706,250.00 with your company.
This decision is as a result of the notice we received from some of our core unit trust investors notifying us of their intentions to collapse their investments with us. This letter serves as a notice in fulfilment of one month notice of our intention to collapse our investment with your company and this notice expires on 22nd October, 2011.
The readiness of your cheque for collection for the sum of N3,071,250.00 on 22nd October, 2011 shall be highly appreciated while we look forward to a more fruitful business relationship.
Thank you.
Yours faithful
(SGD.)
Okechukwu Chukwurah
Managing Director
By the above letter, the complainant duly exercised its right under clause 5 of exhibit H and by the clear provisions of clause 9 of exhibit H the complainant had the appellants mandate to present in the bank the undated cheque exhibit D.
It is on record that the Managing Director of the complainant/company one Ogechukwu Chukwura testified as PW1 in the trial Court and after tendering exhibit B gave an unchallenged and uncontroverted evidence that:
The accused then called me and we agreed on the date that should be written on the cheque which was 31/10/11 was for presentation at the bank. On the 31/10/11 the cheque was presented to the bank, it was returned dishonoured. I called the accused. He assured me that he will pay the money and the outstanding returns. As a means to show his commitment he wrote a letter attached to that letter was a N50,000.00 cheque
In his defence, the appellant, who testified after an unsuccessful no case submission, did not say that he and PW1 did not agree that 31/01/2011 be written on the cheque exhibit D for presentation.
Having regard to the totality of the evidence and circumstances of the case, the question of the cheque issued by the appellant being undated is a none issue.
There is no material contradiction in the case and evidence presented by the prosecution before the trial Court.
The law is that a criminal accusation should be proved beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and State v. Onyeukwu (2004) 14 NWLR (Pt. 893) 340. Even in civil cases, by virtue of Section 135(1) of the Evidence Act, 2011 an allegation of crime must be proved beyond reasonable doubt. See Nwobodo v. Onoh (1984) 1 SCNLR 1 and Maihaja v. Gaidam (2018) 4 NWLR (Pt.1610) 454.
However, the requirement that a criminal charge should be proved beyond reasonable doubt does not mean that it must be proved beyond any shadow of doubt. See Miller v. Minister of Pensions (1947) 2 All ER 372, per Lord Denning; Mufutau Bakare v. The State (1987) 3 SC 1 at 37, per Oputa, JSC; Golden Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 at 56 – 57, per Niki Tobi, JSC and Kwame Wisdom v. The State (2017) 14 NWLR (Pt. 1586) 446 at 464, per Ariwoola, JSC.
In this case, the appellant obtained monetary credit for himself or his alleged company by means of a cheque (exhibit D) which was presented on an agreed date and it was dishonoured on the ground of lack of funds. Another cheque of N50,000.00 (exhibit E) was similarly dishonoured. The prosecution, under the circumstances of this case, proved beyond reasonable doubt, the offence under Section 1(1)(b) of the Dishonoured Cheques (Offences) Act, 2004.
The reference by the appellant to memorandum cheques does not assist him in this case because exhibits D and E issued by him do not qualify as memorandum cheques under the proper legal meaning of the term.
A memorandum cheque (spelt as check in American English) is defined in Black’s Law Dictionary, Deluxe Ninth Edition, Page 269 as follows:
A check that a borrower gives to a lender for the amount of a short-term loan, with the understanding that it is not to be presented for payment but will be redeemed by the borrower when the loan falls due.
I agree with the submission of the learned counsel for the respondent that the transaction between the appellant and the complaint was purely contractual and not one where the appellant merely obtained money as a short-term loan and issued exhibit D for its repayment. If the transaction was a short-term loan, when was the loan to fall due? I cannot speculate on an answer since the transaction was purely contractual.
This issue is hereby resolved in favour of the respondent and against the appellant.
ISSUE NO. 2
Whether the appellant can be held liable in his personal capacity for the act of his company. (Ground C, Notice of Appeal).
Learned counsel is of the view that it is obvious from the evidence of all respondents witnesses and the appellant that the whole issue before the Court arose out of the transaction between PW1s Company and the appellants company and not individual transaction even as admitted by PW1 in his evidence and also under cross-examination. Exhibit H, a document agreed upon by both parties as the Terms of Agreement guiding the transaction was clear on this.
He argued that since the two cheques in the case exhibits D and E were cheques issued by one company to another company and not personal cheques of the appellant, he ought not to have been held personally liable.
In this case, when the totality of the documentary and oral evidence on record is dispassionately considered, it is clear to any discerning mind that the appellant held out himself as a person who was not carrying out the transaction between himself and the complainant in the usual way of the business of the company New Consonant Limited but more as a person acting in his personal capacity. For example, the appellant exposed himself in the agreement between the parties – exhibit H as follows:
THIS Trade Agreement is hereby made this 3rd day of Jan. 2011
BETWEEN
New Consonant Limited represented by MR. SURAJ ADEJUMO of 1st Floor, No. 27, 1st East Circular Road, by Esigie Street Junction, Benin City, Edo State. (Hereinafter referred to as Fund Manager).
AND
AFRICA MARKET TECHNOLOGY LIMITED (AMT) of No. 37, Forestry Road, Benin City, Edo State. (Hereinafter referred to as the investor)
(Underlying supplied)
In the whole of exhibit H, the appellant did not hold out himself as a director of New Consonant Limited but merely as a representative of the said company. Also in exhibit A, a letter dated Sept. 22, 2011 the appellant did not refer to himself as a director of the company. Further, in exhibit C by which he undertook to PAY OUTSTANDING RETURNS and to which he attached the cheque for N50,000.00 exhibit E, he signed in his personal capacity and not even as a representative of the company. Under the circumstances of this case, Section 65 of the Companies and Allied Matters Act, relied upon by learned counsel, does not avail the appellant.
The worse part of the case is that the appellant did not make available any resolution of the board of directors or a meeting of the members of New Consonant Limited authorising him to go into any agreement with the complainant and/or to issue the cheques exhibits D and E which were later dishonoured.
Where an incorporated body allows itself to be used as an engine or tool for fraud, the veil of incorporation will be lifted and raised so that the actual perpetrators will be held accountable and liable. See Salomon v. Salomon (1897) AC 22; Prince Lanre Adeyemi v. Lan and Baker (Nig.) Ltd & Anor. (2000) 7 NWLR (Pt. 663) 33; FDB Financial Services Ltd & 6 Ors. v. Ambassador O.O. Adesola & 2 Ors. (2000) 8 NWLR (Pt. 668) 170 and Akinwunmi O. Alade v. Alic (Nigeria) Limited &Anor. (2010) 19 NWLR (Pt. 1226) 111 at 142, per Muntaka-Coomassie, JSC; where the Supreme Court made the point very clear as follows:
It must be stated unequivocally that this Court, as the last Court of the land, will not allow a party to use its company as a cover to dupe, cheat and or defraud an innocent citizen who entered into lawful contract with the company, only to be confronted, with the defence of the companys legal entity as distinct from its directors. Most companies in this country are owned and managed solely by an individual, while registering the members of his family as the shareholders. Such companies are nothing more than one-man-business. Hence, the tendency is there to enter into contract in such company name and later turn around to claim that he was not a party to the agreement since the company is a legal entity.
Assuming, for the sake of mere emphasis, that the appellant acted as an agent of New Consonant Limited, this Court stated in the case of Prince Lanre Adeyemi v. Lan and Baker (Nig.) Ltd & Anor. (supra) at 51, per Adeyemi, JCA (as he then was) as follows:
Thus if it is discovered from the material before the Court, that a company is the creature of a biological person be he a managing director or a director, and it is a device or a sham-mask by the eye of equity, the Court must be ready and too willing to open the veil of incorporation to see the characters behind it, if justice must be seen to be done. See Gilford Motor Co. Ltd v. Horne (1933) Ch. 935. On the closer analysis of the facts of this case the 2nd defendant is more of a puppet of the 1st defendant/appellant, so to say. And on the authority of the Gilford Motor Co. Ltd referred to supra, the veil of incorporation can on ground of equity, be opened by the Court. Even if by paragraphs 2 and 5 of the statement of claim the 1st defendant/appellant is adjudged to be the agent of the 2nd defendant that alone would not absolve him from liability. In W.A.S.A v. Kalla (1978) 3 S.C. 21 ESO J.S.C. said on liability of an agent for contracts entered into on behalf of a principal and
I quote him at page 28:-
It is settled law that when a person makes a contract in his own name, without disclosing either the name or the existence of a principal he is personally liable on the contract to the other contracting party, even though he may be in fact acting on a principals behalf. Once a person puts himself forward as a contracting party, whether as an agent or a principal, he will continue to be liable even after the discovery of the agency by the other party. The only thing that stops his liability is the clear and unequivocal election by the other contracting party to look to the principal alone. From the facts of this case the 1st defendant/appellant is roundly liable.
In this case, assuming that the appellant even acted as an agent of New Consonant Limited, he can still be held liable under Section 2 of the Dishonoured Cheques (Offences) Act, 2004 which provides that:
Where any offence under this Act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officer, servant or agent of the body corporate (or any person purporting to act in any such capacity), he, as well as the body corporate, shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.
The rationale for holding the appellant personally liable is because, under the circumstances of this case, New Consonant Limited was merely an alter ego a company used by an individual in conducting personal business and under the alter-ego rule the appellant can be treated as the real party in interest to prevent fraud or to do justice. See Blacks Law Dictionary, Deluxe Ninth Edition, Page 91.
I have given sufficient reasons to enable me to resolve this issue against the appellant. For all the reasons given above, I resolve this issue against the appellant.
Having resolved the issues against the appellant, there is no merit in this appeal. Consequently, this appeal is hereby dismissed for it is devoid of any merit.
The judgment of the trial Court, per Hon. Justice R. Irele-Ifijeh, delivered in Charge No. B/CD/301C/2013 on the 28th day of April, 2017 is hereby affirmed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I agree.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
Appearances:
A.B. Ogunsusi, Esq. with him, Mrs. T.A. Paul-Osagie For Appellant(s)
Mrs. F.I. Monyei (Director, Edo State Ministry of Justice) with her, Miss P.T. Idienumah, (Senior State Counsel, Edo State Ministry of Justice) For Respondent(s)
