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ABUBAKAR v. FRN (2022)

ABUBAKAR v. FRN

(2022)LCN/15962(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, September 30, 2022

CA/ABJ/CR/1006/2020

Before Our Lordships:

Ita George Mbaba Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

DR. IBRAHIM ADO ABUBAKAR APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

THE PURPOSE OF A REPLY BRIEF

I think that argument (and the others in the Reply Brief) amounted to further argument of the brief, or re-enforcement of the main brief by the Appellant’s Counsel, thus falling short of what a Reply Brief is meant to achieve; namely, to contest fresh issues of law, raised in the Respondent’s Brief, which were not raised or contemplated in the Appellant’s Brief. See Aduba & Ors Vs Aduba (2018) LPELR-45756 CA; and Govt. of Enugu State of Nigeria & Ors Vs Onya & Ors (2021) LPELR-52688 CA:
“A Reply brief is not meant to give a second chance to argue appeal, but to respond to fresh points of law, raised in Respondent’s brief, which were not contemplated in the Appellant’s Brief. See the case of Iheka vs Njoku (2017) LPELR-42002 CA Akayepe & Anor vs Akayepe (2009) LPELR-326 (SC); Mathew vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor vs Akwaiwu & Ors (2020) LPELR 51954 (CA).” 
PER MBABA,J.C.A.

THE LEGAL PRINCIPLE OF ACTUS REUS AND MENS REA

The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA:
“To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).”
​See also Idagu Vs The State (2018) LPELR-44343 (SC):
“It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC.
PER MBABA, J.C.A.

ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the judgment of the Federal Capital Territory, High Court, in Charge No. FCT/HC/CR/7/2012, delivered on 2nd October, 2020, by Hon. Justice M. E. Anenih, whereof the learned trial Judge convicted the Appellant, for offence of issuing a dud cheque, and sentenced him to imprisonment, for 2 years, without an option of fine.

At the trial Court, Appellant, being the owner and Chief Executive Officer of his company, Foot Trip Oil & Gas Ltd, was charged, together with the company (Foot Trip Oil & Gas Ltd), as follows:
1. That you, Dr. Ibrahim Ado Abubakar, being the owner and Chief Executive Officer of Foot Trip Oil Gas Ltd and Foot Trip Oil & Gas Ltd, on or about the 2nd day of August, 2011, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory, with the knowledge that you had insufficient funds in your account, issued to one Peter Okolo & Co a Spring Bank (now Enterprise Bank) cheque, dated 2nd August, 2011 with account name Foot Trip Oil & Gas Ltd for the sum of N8,200,000 (Eight Million Two hundred Thousand Naira) which said cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in the account and thereby committed an offence under Section 1(1)(b)(i)(ii) of the Dishonoured Cheque (Offences) (sic) Cap DII Laws of the Federation of Nigeria Act (sic) 2007.
2. That you, Dr. Ibrahim Ado Abubakar, being the owner and Chief Executive Officer of Foot Trip Oil and Gas Ltd, and Foot Trip Oil & Gas Ltd on or about the 7th day of September, 2011, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory, with the knowledge that you had insufficient funds in your account, issued to one Peter Okolo & Co a Spring Bank (now Enterprise Bank) cheque dated 7th September, 2011 with account name Foot Trip Oil & Gas Ltd for the sum of ₦8,200,000 (Eight Million Two hundred Thousand Naira) which said cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence under Section 1(1)(b)(i)(ii) of the DII Laws of the Federation of Nigeria Act (sic) 2007.
3. That you Dr. Ibrahim Ado Abubakar, being the owner and Chief Executive Officer of Foot Trip Oil and Gas Ltd, and Foot Trip Oil & Gas Ltd on or about the 19th day of September, 2011, in Abuja, within the jurisdiction of the High Court of the Federal Capital territory, with the knowledge that you had insufficient funds in your account, issued to one Peter Okolo & Co a Spring Bank (now Enterprise Bank) cheque dated 19th September, 2011 with account name Foot Trip Oil & Gas Ltd for the sum of ₦8,200,000 (Eight Million Two hundred Thousand Naira) which said cheque when presented for payment within three months of issuance was dishonoured due to insufficient funds in your account and thereby committed an offence under Section 1(1)(b)(i)(ii) of the Dishonoured Cheque (Offences)Act DII Laws of the Federation of Nigeria Act (sic) 2007.

Appellant (as accused person) had pleaded Not Guilty to the charge, when arraigned. At the trial, the prosecution called 3 witnesses, and Appellant testified as DW1. After considering the evidence and addresses of Counsel, the trial Court found the Appellant guilty on count one, but discharged and acquitted him on counts 2 and 3.

​On pages 240 to 241 of the records, the prosecution got the charged to be amended, and fresh plea (of not guilty) taken by the Appellant. But the charge, as recorded on pages 2 to 3 of the records of Appeal, appears to have been reproduced, with only slight corrections by the learned trial Judge, on 275 to 276 of the judgment, whereof the 2nd count alleged that cheque, for N8,200,000 was issued on 1st September, 2011 (not 7th September, as stated on page 3 of Records of Appeal. Also, the count 3 stated in the judgment (page 276 of the Records) suggests that the cheque therein, was for the sum of N820,000 (Eight Hundred and Twenty Thousand Naira) instead of N8,200,000.00 (Eight Million, Two Hundred Thousand Naira) carried in the 3rd charge on page 3 of the Records of Appeal.

Appellant filed his Notice of Appeal on 23/10/2020, to challenge his conviction and sentences as shown on pages 296 to 300 of the Records of Appeal, disclosing four grounds of appeal. He filed his brief of arguments on 3/3/2021, which was deemed duly filed on 29/6/2021 and distilled four issues for determination, as follows:
(1) Whether the lower (sic) is right in holding that the defence put by the appellant was short (sic) to exculpate the appellant.
(2) Whether the lower Court is right in holding that the offence created by S. 1 of Dishonoured Cheque Act is a strict liability offence.
(3) Whether the lower (sic) is right in convicting the appellant having regards to the fact that the transaction was between the appellant and Peter Okolo, while the cheque issued were that of Foot Trip Oil & Gas Ltd.
(4) Whether the lower Court is right in convicting the appellant, having regards to the weight of evidence placed before the lower Court.

Counsel for the Respondent filed their Brief on 24/6/2021, and same was deemed duly filed on 13/9/2022 (when the appeal was heard). The Respondent distilled three issues for the determination of the Appeal, as follows:
(1) Whether terming the offence of dud cheque a strict liability offence would defeat the conviction under count one despite the Respondent having proved all the element of the offence and the lower Court examining and reviewing same before convicting the Appellant.
(2) Whether the lower Court was right in convicting the Appellant having regard to the fact that the transaction was between the Appellant and PW1 while the cheques issued were that of Foot Trip Oil & Gas Ltd.
(3) Whether the lower Court was right in convicting the Appellant having regard to the weight of evidence placed before the lower Court.

Appellant had filed a Reply brief on 9/9/2022 (which was deemed duly filed on 13/9/2022) to react to the Respondent’s brief. Appellant did not relate the issues for determination of the appeal, formally, to the grounds of appeal, but at the hearing said that the issues were distilled, serially, from the four grounds of the appeal.

Arguing Issue One, Appellant’s Counsel, B. A. Wali, Esq, said that Appellant, both in his statement to the EFCC and testimony in Court, had asserted that, at the time he issued the cheques, there was legitimate expectation and reasonable believe that the account would be credited with money, sufficient enough from his business associates (to satisfy the cheque). He relied on Exhibits S and T, as evidence to justify the said expectation, and said that the said exhibits were not discredited at the trial and so remain credible. He relied onIkwem Vs Cop. Delta State (2005) ALL FWLR (Pt 247) 1430.

​Counsel relied on Section 1(3) of the Dishonoured Cheque (Offences) Act, Cap DII LFN 2004, which provides:
“A person shall not be guilty of an offence under this section, if he proves to the satisfaction of the Court, that when he issued that cheque, he had reasonable grounds for believing and did believe in the fact that it should be honoured if presented for payment within the period specified in subsection 1 of the section”

Counsel further relied on The State Vs Esho (1976-1984) NBLR 661, and said that the case of Appellant is on all fours with the provisions of Section 1(3) of the Act; and that the trial Court failed to give due consideration to same.

On Issue 2, Counsel said that the trial Court was wrong to hold that the offence created by Section 1 of Dishonoured Cheque (Offence) Act, is of strict liability. He argued that evidence revealed that Appellant has settled the debt before the commencement of the case and was no longer owing. He relied on the evidence of PW1 and DW1; he said that DW1 had told the Court that PW1 had asked Appellant to issue the cheques to enable the nominal complainant convince the landlord, not actually for the purpose of presenting same, and that PW1 was asked not to present the cheques. Counsel said that, from the evidence, there was no intention to deceive, swindle or cheat and so there was no mens rea established, as required in criminal trial. He relied on Mohammed Vs The State (1991) LPELR-1901 SC.

On Issue 3, Counsel said the trial Court was wrong to convict the Appellant, having regards to the fact that the transaction was between the Appellant and Peter Okolo, while the cheques were that of Foot Trip Oil & Gas Ltd; Counsel argued that the tenancy relationship was between the Appellant and Mr. Peter Okolo, as per the Exhibit C, while the Bank instruments issued were of Foot Trip Oil & Gas Ltd. Thus, the dishonoured cheques did not belong to the Appellant. He argued that a limited liability company has a distinct personality different from her shareholders or even directors. He relied on the case of Akinwummi Alade Vs Alic Nigeria Ltd (2010) 12 SC (Pt 11) 59.

​On Issue 4, whether the trial Court was right to convict the Appellant, having regards to the weight of the evidence before the Court, Counsel answered in the negative and said that the prosecution, in a criminal trial, is required to prove all the ingredients of the offence beyond reasonable doubt; that that has not been done, as the mens rea of the offence was not established, namely, the intention to cheat, deceive or swindle.

Counsel argued that the bank instruments (Exhibits D, E & F) were issued by Foot Trip Oil & Gas Ltd, and there was no evidence before the Court establishing that Appellant had intention to deceive, cheat or swindle the nominal complaint; he said that the facts rather showed that Appellant paid all the sum owed before the commencement of the case and the fact that the cheques were released to the nominal complainant with an understanding that same should not be presented to the bank. Thus, Counsel said, the evidence were not enough to establish the offence, charged.
Counsel urged us to resolve the issue for the Appellant and to allow the appeal.

​Responding, Mrs Hussaina Gambo, ACS-EFCC, on their issue one, whether, considering the offence of issuance of dud cheque as attracting strict liability, would defeat conviction, despite prove of all the elements of the offence against the Appellant, Counsel answered in the negative. She submitted that, though the Court referred to the offence of issuance of dud cheque as a strict liability offence, it mattered not whether or not the offence was termed a strict liability offence, since all the ingredients of the offence were proved and analyzed by the trial Court in arriving at its decision.

Counsel referred us to the Black’s Law Dictionary, 7th Edition, on the definition of strict liability; that is does not depend on actual negligence or intent to harm, but is based on the breach of an absolute duty to make something. He relied on the case of Monsour Vs FRN (2018) LPELR-46632 CA.

​Counsel said that though the trial Court slipped by terming the issuance of dud cheque a strict liability offence, it had gone on to examine and evaluate the whole evidence before it, reviewed the same and rightly arrived at its verdict of convicting the Appellant under the Court one. Counsel added that, the fact that Appellant was discharged and acquitted in counts 2 and 3, which were also for issuance of dud cheque, attested to the fact that the trial Court did not merely consider the issue of the offence being of strict liability, when it convicted Appellant under the count one. She urged us to overlook the terming of the offence one of strict liability and rather juxtapose same with the law and evidence considered by the trial Court in reaching its decision; she added that the prosecution had established the essential elements of the offence to arrive at its decision.

On the issue of absence of intention to deceive, swindle or cheat PW 1, Counsel submitted that intention can only be gleaned from facts of the case, since parties do not have power to know what is on the minds i.e. to read the minds. She argued that the facts of this case clearly showed that Appellant repeatedly gave dud cheques (thrice); that a perusal of the evidence of PW 1 at pages 227-232 of the Records would reveal, that the three different cheque were given at 3 different occasions by Appellant. Counsel called us to look at the long title of the Dishonoured Cheques (Offences) Act, to determine its purpose; she said that, if Appellant had made a mistake by issuing the 1st cheque, he could not have done so two more times. She urged us to hold that having repeated the act, trice, Appellant intended the consequences of his act, when he knew that he had no sufficient money in the account to satisfy the value of the cheques. She relied on the case of Onyekumnaru Vs State (2019) LPELR-46040 CA.

On Issue 2, whether the lower Court was right to convict the Appellant, having regards to the fact that the transaction was between Appellant and PW 1, while the cheques, issued, were that of Foot Trip Oil & Gas Ltd, Counsel answered in the affirmative and said that the said company was the 2nd Accused person or defendant at the trial; that Appellant took a plea for himself and also on behalf of the company (2nd Defendant); that the Appellant stood trial in dual capacity as 1st Defendant and representative of 2nd Defendant, which he owned and was the Chief Executive Officer; Counsel added that throughout the trial, Appellant never denied that he directed the affairs of the company, and this was evident by the fact that he could issue the company cheque to pay for his rent. Thus, Counsel said, Appellant cannot turn round to assert the distinction between himself and the company as separate personalities in the handling of the account/cheques. She added that, as a corporate person, the 2nd defendant needed the human person (Appellant) to direct and operate it; she said that what was important was the established connection between Appellant and the company. Counsel referred us to page 260 of the records, where Appellant admitted that he was the CEO of Foot Trip Oil & Gas Ltd and that the delivery notes he was relying on to pay for the rent were the company papers.

Counsel further said that Appellant admitted having relationship with the PW 1, and his liability to PW 1, though he (Appellant) used his company cheques to offset the liability; she said that he (Appellant) admitted that the premises procured for him by PW 1 was for his residence and his family. Thus, she said that it was immaterial the cheques, issued by Appellant belonged to the company – Foot Trip Oil & Gas Ltd. She relied on the case of Tafida & Anor Vs Garba (2013) LPELR-22076 CA, which deprecated the wrongful use of Companies for unwholesome practices by their operators.

​On Issue 3, whether the trial Court was right to convict Appellant, having regard to the weight of evidence, Counsel, answered on the affirmative. She said that ample evidence was placed before the trial Court to sway it to convict Appellant; that the trial Court had observed, rightly, that Exhibits S & T (contract agreement between 2nd Defendant and CENENI Oil & Gas Co. Ltd. (Exhibit S) and Delivery Note by 2nd Defendant of goods to CONENI Oil – Exhibit T) cannot avail Appellant as a defence, as the date on the cheque was not contemplated by the Exhibits S & T; she said that by 2nd August, 2011 (the date on the 1st cheque) the offer to supply the petroleum products had not even been made.

Counsel said it was obvious that, at the time of issuing the cheque, that there was no sufficient fund in the account to satisfy the value of the cheque.
She urged us to resolve the issues against the Appellant and to affirm the decision of the trial Court.

RESOLUTION OF ISSUES
In his Reply Brief, Appellant reacted to the Respondent’s argument that the offence charged did not require proof of intention to deceive, swindle or cheat the nominal complainant, and referred us to Section 1(3) of the Dishonoured Cheque (Offences) Act, to restate that proof of guilty intention was required to establish the offence, and relied on the case of Chukwu Vs The State (1992) 1 NWLR (Pt 217) 255.
I think that argument (and the others in the Reply Brief) amounted to further argument of the brief, or re-enforcement of the main brief by the Appellant’s Counsel, thus falling short of what a Reply Brief is meant to achieve; namely, to contest fresh issues of law, raised in the Respondent’s Brief, which were not raised or contemplated in the Appellant’s Brief. See Aduba & Ors Vs Aduba (2018) LPELR-45756 CA; and Govt. of Enugu State of Nigeria & Ors Vs Onya & Ors (2021) LPELR-52688 CA:
“A Reply brief is not meant to give a second chance to argue appeal, but to respond to fresh points of law, raised in Respondent’s brief, which were not contemplated in the Appellant’s Brief. See the case of Iheka vs Njoku (2017) LPELR-42002 CA Akayepe & Anor vs Akayepe (2009) LPELR-326 (SC); Mathew vs State (2019) LPELR-46930 (SC); Akwaiwu & Anor vs Akwaiwu & Ors (2020) LPELR 51954 (CA).”

I think the real issue thrown up for the determination of this appeal is whether the trial Court was right to convict the Appellant for the offence of issuing a dud cheque on 2nd August, 2011 which on presentation by the drawee to the Bank, was dishonoured due to lack of funds, contrary to Section 1(1)(b)(i)(ii) of the Dishonoured Cheques (Offences) Act, Cap D II Laws of the Federation of Nigeria, 2007, in the circumstances of this case.

I think the arguments of Counsel should be restricted to only the Count one, relating to the issuance of dud cheque on 2nd August 2011, where of Appellant was convicted and not to the counts 2 and 3, alleged further issuance of dud cheques, whereof Appellant was discharged and acquitted. Thus, in the eye of the law Appellant was indicted and contravened for a single offence of issuing a dud cheque on 2nd August, 2011, a cheque which on presentation for payment, was dishonoured by the Bank, because Appellant’s company (2nd Defendant) did not have sufficient funds to satisfy the value of the cheque.

​To that extent, I think the Respondent’s Counsel was wrong to argue, to infer intention of Appellant to swindle, cheat or defraud the PW1 (nominal complainant) by reference to repeated acts of issuing dud cheques by the Appellant, relying on the counts 2 and 3. It means that whatever inference of intention to swindle, cheat or defraud the nominal complaint (PW1), has to be drawn from the circumstances relating to the cheque issued on the 2nd August 2011, which was dishonoured on presentation.

In every criminal trial, the basic components that must be established by the prosecution are actus reus and mens rea. That is, the doing of the act or omission complained of and the guilty mind that procured the act or omission. That means, apart from doing the act (in this case, issuing a dud cheque), there must also be the requisite intention to deceive, cheat, swindle or defraud the recipient of the cheque and deny him of the value accrued to the cheque, after enjoying that corresponding value (by the person who issued the cheque).
The legal principle of actus reus and men rea are well defined. See the cases of Eze Vs The State (2017) LPELR-42006 CA:
“To establish criminal responsibility, there must be mens-rea – criminal knowledge or intention to commit the offence, to support the actus reus – the actual act. Aminu Tanko Vs The State (2009) 4 NWLR (pt.1131) 430; Okewu Vs FRN (2012) LPELR 7834 (SC).”
​See also Idagu Vs The State (2018) LPELR-44343 (SC):
“It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness that his or her conduct is criminal, is the mental element, and actus reus, the act itself is the physical element. The concept of mens rea, which is Law Latin for “guilty mind”, developed in England around the year 1600, when Judges began to hold that an act alone could not create criminal liability unless it was accompanied by a guilty state of mind. The degree of mens rea required for a particular common law crime varied then. In other words, mens rea is a criminal intention or knowledge that an act is wrong, and today most of the crimes are defined by statutes that generally contains a word or phrase indicating the mens rea requirement. Thus, a typical statute may require that a person act knowingly, purposely or recklessly – see legal-dictionary.thefreedictionary.com. In this case, the Appellant was charged with the offence of murder contrary to Section 316 of the Criminal Code applicable in Ondo State, and the Prosecution was expected to prove beyond reasonable doubt that the alleged act was intentional with the knowledge that death or grievous bodily harm was a probable consequence – Akinfe V. State (1988) 3 NWLR (Pt. 85) 729.” Per AUGIE, JSC.

But in addition to establishing the presence of actus reus and mens rea in a given criminal allegation, the relevant elements or ingredients of the particular offence must also be established by the prosecution, beyond reasonable doubt.

The Section 1(1)(b)(i)(ii) of the Dishonoured cheque (Offences) Act, states:
(1) Any person who-
(b) obtains credit for himself or any other person by means of 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 insufficient 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
(i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and
(ii) in the case of a body corporate, be sentenced to a fine of not less than N5,000.00.
By Subsection 2(1) (b) of that Section:
“a person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shall be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified”.
And by the Subsection 3 of the Section:
“A person shall not be guilty of an offence under this subsection, if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing and did believe, in fact, that it would be honoured, if presented for payment within the period specified”.

​The requisite trust inherent in banking transaction extends to security and confidence enshrined in the issuance of cheques, and so whoever issues cheque to another, after enjoying some credit or value from the drawee (person who obtains the cheque) must earn the respect and trust enshrined in the operation, that the cheque will be honoured. Business confidence and security requires no less.
Of course, the rationale for the Act (Dishonoured Cheque (Offences) Act) was to ensure the integrity of banking operation by cheques and to further protect banking transaction by means of payment by cheques, and to punish any betrayal of that trust and confidence.
In the case of Onyekumnaru Vs State (2018) LPELR_46040 CA, My Lord Otisi, JCA said:
“…The long Title of the Dishonoured Cheque (Offences) Act states that the Act makes it an offence for any person anywhere in Nigeria to induce the delivery of any property or to purport to settle a lawful obligation by means of a cheque when dishonoured on the grounds that no funds or insufficient funds were standing to the credits of the drawer of the cheque, and for matters connected therewith. The elements of offence of issuance of dishonoured cheque are:
(1) The person obtained credit for himself or any other person;
(2) The cheque was presented for payment within three months from the date of issue of the cheque, and
Upon presentation of the cheque it was dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn. See Abraham Vs FRN (2018) LPELR (44136) 1 at 50-51”.

In the instant case, Appellant’s Counsel has argued, strongly, that no mens rea was established by the Prosecution against the Appellant at the trial, as there was no intention to swindle, cheat or deceive the nominal complainant (PW1), especially, as the debt had been settled as at commencement of the charges. Counsel also argued that Appellant had, reasonably, expected some money to be paid into the account to satisfy the value of the cheque, at the time of issuance of the cheque. He also argued that PW1 had insisted that Appellant should issue the cheque, as a mark of commitment to convince his (PW1) principal; he relied on Exhibit S & T, to say that he was expecting some proceeds from business contacts to enrich the account for the PW1 to draw the value of the cheque, at the time of presenting the cheque for payment.

​Appellant’s assertion could not be believed, because, unfortunately, the said business engagements in Exhibits S and T were made after the issuance of the cheque on 2nd August 2011! This is because the cheque pre-dated the business engagements/agreement. Thus, the business may have been only within Appellant’s contemplation or in his imagination!

From the account of PW1, Appellant only met the PW1 on 1/8/2011, upon reading an advert of the property PW1 put out to let. Appellant showed interest in the property, inspected it and issued the cheque, the next day, on 2/8/2011, apparently, confidently, without betraying any inclination that he had no such money on the cheque in his company’s account at the time of issuing the cheque, and without any prompting of the PW1 that he was expecting proceeds from any business engagement to service the account against the date of drawing (which of course was any date, from the said 2/8/2011).

​PW1 said:
“Upon presentation of the cheque to Spring Bank it was dishonoured. I presented the cheque through my Diamond Bank account and it came back dishonoured… on the face of it, (Exhibit D) the cheque is clearly written (DCR)… After Exhibit D was returned, unpaid, I contacted the accused person and duly informed him that his cheque had been returned. After much deliberation, he issued me another cheque for the same sum of ₦8,200.00, dated 7/9/ (which of course, was also dishonoured on presentation!). See page 230 of the Records of Appeal”

In his evidence on pages 259 to 260 of the Records, Appellant said:
“I know Mr. Peter Okolo… I met Mr. Peter Okolo sometimes in 1928 (sic) and since then we have been close; in 2009 I came visiting and informed him I wanted to relocate my family to Nigeria since I have a business in Nigeria and a job in the UK. I told him I needed a property, since that is his line of business. He promised to get me one. He later called me to say he’s gotten one in Asokoro and that I needed to make payment, which I did. I came down to inspect the property and we agreed on renovation. He gave me the quotation for the renovation. He then told me the house is ready and that I could move in. I then brought my entire family back home to Nigeria, only to find out that the renovation had not been adequately done. So, I checked my family into Lexcom Apartment in Asokoro where we stayed for 2 months. I told Peter Okolo I was running out of cash and couldn’t afford the apartment any longer as some of the business I did hadn’t been paid for. He apologized and said it’s not his fault. So he took me to a place in Gudu and asked if it was comfortable for my family and I said its okay and also affirmed I could pay the service charge. He gave me the key for the apartment. I then moved in with my family”
A week later he came to me to request a check for the rent of the Apartment. I asked him why a cheque since we have understanding. He said he just wanted to show it to his client in case the client comes asking questions, I then gave him the check which he assured me he wasn’t going to present at the bank but only to show the client as agreed, 2 days later I travelled back to UK and left my family behind. He called me when I got back to the UK that the client said the date on the cheque had become invalid and that he needed another postdated cheque. I remined him that I was in the UK. He insisted I should just find a way to send a cheque across, since I knew he wasn’t going to present same but just show his client.
I then wrote a cheque and sent it through Courier Service…

Apart from admitting issuing the dishonoured cheque, I do not think the story of Appellant, trying to explain away the circumstance, he issued the cheque, really, adds up. He sounded he was familiar with PW1 (who was only an agent to the owner of the property), but failed to explain how and why PW1 would allow him to move into the property, without payment of rent or cashable cheque, whereas, in another breathe, he claimed to have paid the rent and charges!

Appellant further said on Page 260 of the Records:
“I then sent another cheque through the same Courier Company in February, 2012, I came back and the renovated house was ready. Then I sat down with him to reconcile the balance due for me to pay on the house where my family had been. We agreed and I paid him in total, the agreed amount and vacated the premises immediately.”

​I think, even if Appellant had, finally, settled the debt, arising from the accrued rental on the property, he and his family occupied, that does not and cannot absolve him for the offence of deliberately issuing dud cheque, when he knew that he had no funds or sufficient funds in the account to satisfy the value of the Cheque. The fact of settling the debt can only mitigate or reduce his punishment, in my view. But that would be considered in the face of show of remorse and regret by the Appellant, which was not forth coming.
Appellant in this appeal did not betray or portray any iota of remorse, as he was still on his high horse, and belabouring, in self-delusion, that he was justified to issue the dud cheque, because he had agreement with PW1 not to present the cheque and that he was expecting funds from some anticipatory business, into the account. He never established that agreement with the PW1 nor any reasonable basis for the said expected funds, as Exhibits S & T were made after the issuance of the cheque on 2/8/2011.

Rather, in that arrogance, Appellant said:
“I was surprise when EFCC invited me in April after 2 months on same subject matter that I issued dud cheques. Am not owing Peter Okolo. There was no agreement between Peter Okolo and I that I will pay interest. Surprisingly, today being 28/6/2018 will make it exactly 40 years I have known Peter Okolo and very good friend. We hardly do anything without consulting each other. Peter was aware I once had business of which I was expecting payments. I have the business agreement and the delivery note just to show that this business exists… (Exhibits S and T).” Pages 260 – 261 of the Records.

As earlier stated in the judgment, the said business agreement was signed on 7/8/2011, with the delivery date extending to 30 days (from 17/8/2011), when payment would be anticipated. But the dud cheque (Exhibit D) was issued on 2/8/2011 and presented on 3/8/2011. (See Pages 117 and 208 to 214, for the Exhibits S & T)

The trial Court, in convicting Appellant (and his Company), had said:
“A scrutiny of the evidence before the Court reveals that DW1 (Appellant) admitted he knew that he had no money in the Account when the cheques were issued. and the defendants have not tendered before this Court any statement of Account showing that he received any amount from the said client within or immediately sequel to the period when the cheques were presented for payment; any such payment would at least have fortified the fact of expectation of funds in line with oil supply documents Exhibits S & T which he tendered…
The Defendants were therefore unable to raise a sustainable defence to count one of the Charge as provided for in Section 1(3) of the DCA. Once the acts constituting the elements of the offence are established against the defendant without lawful defence, the offence is proved. The act of obtaining credit by issuing a dud cheque which when presented for payment within three months of issuance is dishonoured for reason of insufficient funds in the Account, completes the codified offence in Section 1(1) (b) (i) (ii) of the DCA.” (See Pages 291 and 292 of the Records).

I cannot fault that reasoning and conclusion of the learned trial Judge. The aspect of mens rea (intention to commit the offence) was established once the Appellant issued the cheque for the said sum to be drawn from the Account, with full knowledge that he or the company had no such funds or sufficient funds in the Account, to satisfy the value of the cheque. See the case of Tambuwal Vs FRN (2018) LPELR – 43971 CA:
“It has been held that the issuance of a dud cheque, such as the one before us (Exhibit E) is a criminal offence under Section one of the Dishonored Cheque (offences) Act 2004. See Fajemirokun vs. Commercial Bank Nig. Ltd. & Anor (2009) 2-3 SC (Pt. 11) 35 at 58.” Per BARKA, JCA
In the case of Seed Vest Micro Finance Bank Plc & Another Vs Ogunsina & Ors (2016) LPELR–41346 CA, it was held:
“It is instructive to point out clearly that the issuance of dud cheques is a criminal offence underSection 1 of the Dishonoured Cheques (Offences) Act Cap D11 Laws of the Federation of Nigeria 2004 for which the Appellants was entitled to make a report to the police. See: Chief (Dr.) O. Fajemirokun vs. Commercial Bank Nigeria Ltd. & Anor (2009) 2-3 SC (pt.1135) 58.” Per DENTON-WEST, JCA
See also the cases of Tonad Publishing Ltd Vs FRN (2017) LPELR–50676 CA; Ojukwu Vs FRN (2019) LPELR–46494 (CA); State Vs Ugokwe (2018) LPELR–46075 (CA); and Onyekumnaru Vs FRN (Supra).

​Appellant cannot, successfully, disentangle himself from the cheque, belonging to the 2nd Defendant, claiming that the latter is a separate and distinct legal personality, since the Appellant is the chief executive of the 2nd Defendant and also issued and signed the cheque complained of. And both the Appellant and the 2nd Defendant (the Company) were charged and convicted in this case.
Appellant was the altar ego of the said Company (2nd Defendant) and responsible for using the cheque belonging to the Company for his unlawful purpose.

I find no merit in this appeal and so resolve the Issue against the Appellant and dismiss the appeal. I affirm the decision of the trial Court.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ITA G. MBABA, JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat. The offence for which the Appellant was convicted and also being the subject matter of this appeal relates to count one which is issuance of dud-cheque contrary to Section 1 (1) (a) of the Dishonoured Cheque (Offences) Act, Cap. D11 LFN 2004 and punishable under Section 1 (1) (b) (i) of the aforesaid Act. The essential element of the offence of issuance of dishonoured cheque are: (1) the person obtained credit for himself or any other person, (2) the cheque was presented for payment within three months from the date of issue of the cheque and (3) upon presentation of the cheque it was dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn. See ONYEKUMNARU V F.R.N (2018) LPELR 46040 (CA), and OJUKWU V FRN (2019) LPELR–46494 (CA).

It is beyond argument that the Appellant in the instant case issued the cheque for N8,200,000 to Peter Okolo & Co. knowing fully well that he has no sufficient funds to cover same and the said cheque was returned unpaid. Aside according to the fact that he had finally settled the debt arising from the accrued rental on the property; Appellant has failed to adduce any evidence that when he issued the cheque he had reasonable grounds for believing that it would be honoured if presented for payment. The evidence of the Appellant to the effect that he issued the cheque on the understanding that it was not going to be presented to the bank but only to show commitment is to say the least, an afterthought. Thus, the learned trial Judge was right in convicting the Appellant. Again, the fact of settling the debt does not exculpate the Appellant but perhaps, serve as a mitigating factor when it comes to punishment.

With these few words and the more detailed reasoning in the lead judgment, I also dismiss the meritless appeal.

KENNETH IKECHUWU AMADI, J.C.A.: I have had the privilege of reading the draft copy in advance of the lead judgment of my learned brother; Ita G. Mbaba JCA. I agree with the reasons given therein and the conclusion reached.

In Abeke v. State (2007) 9 NWLR (Pt. 1040) 411, this Court held that where a person is charged with issuing dud cheque, by virtue of the provision of Section 1(1)(b) of the Dishonoured Cheques (offences) Act, the prosecution must prove the following:
(a) That the accused person obtained credit by himself:
(b) That the cheque was presented within three months of the date thereon; and
(c) That on presentation the cheque was dishonoured. The prosecution had no difficulty in proving the above stated ingredients of the offence.

However, by virtue of Section 1(3) of the Dishonoured Cheques (offences) Act, a person shall not be guilty of an offence of issuing dud cheque if he proves to the satisfaction of the Court that when he issued the cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in subsection of the section. See Ojukwu v. FRN (2020) 5 NWLR (Pt. 1717) 356. But the Appellant failed to prove to the satisfaction of the Court that he ought to benefit from the provisions of this subsection.

​For the above reasons, I hold that this appeal is lacking in merit. I also dismiss it.

Appearances:

B.A. WALI, ESQ. For Appellant(s)

HUSSAINA GAMBO, (MRS) A.C.S. EFCC For Respondent(s)