AJAYI v. FRN & ANOR
(2022)LCN/16134(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, January 20, 2022
CA/LAG/CR/430/2021
Before Our Lordships
Obande Festus Ogbuinya Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
AKINWUNMI AJAYI APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. LOGIC REALTORS LIMITED RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE EVALUATION OF EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO THEM
Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and valuate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.
Interestingly, the law, in order to disown injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this coextensive jurisdiction in the appraisal of the flood of documentary evidence in this appeal. Again, I will bear in mind these evidential parameters as the barometer to measure the propriety or otherwise of the lower Court’s evaluation of the evidence in the case. Having been adequately fortified by these current positions of the law, I will proceed to tackle the solo nagging issue in this appeal. PER OGBUINYA, J.C.A.
THE OFFENCES IN RELATION TO DISHONOURED CHEQUES
There is no gainsaying the fact, decipherable from the dazzling arguments of the feuding parties, that the appellant’s agitation, on the issue, orbits around the propriety or otherwise of the lower Court’s interpretation of the provision of Section 1(1) of the Dishonoured Cheques (Offences) Act under which the appellant was arraigned before it. In view of this Olympian position, being the cynosure of the vexed issue, it is germane to pluck it out from where it is domiciled in the statute book, ipsissima verba, as follows:
1. Offences in relation to dishonoured cheques, etc.
(1) Any person who-
(a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or
(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 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.
Interestingly, the provision is comprehension-friendly. To this end, the law commands the Court to accord it its ordinary meaning without any embellishments, see Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503. Indubitably, the case-law has evolved the three ingredients of the offence, germinating from the provision, which the prosecution must prove in order to secure conviction of an accused, videlicet: (a) that the person obtained or induced the delivery of an item, capable of being stolen, or obtained credit for himself or any other person by means of a cheque; (b) that the cheque was presented for payment within three months of the date thereon; and (c) that upon presentation, the cheque 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 Abeke v. State (2007) 9 NWLR (Pt. 1040) 411. PER OGBUINYA, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CIVIL CASES
One of the main planks of the appellant’s appeal is that the lower Court was in grave error on its finding on proof of the ingredients of the offence given the defences invented by him. In this perspective, the provision of Section 135 (3) of the Evidence Act, 2011 comes in handy. It reads:
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The case-law has given its blessing to this provision by its invocation in loads of authorities. In Akinmoju v. State (2000) 6 NWLR (Pt. 662) 608 at 629, lguh, JSC, incisively, declared:
Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or cast a reasonable doubt on the case of the prosecution by preponderance of probabilities.
See, also, Adepetu v. State (1998) NWLR (Pt. 565) 185; Adeniji v. The State (2001) FWLR (Pt. 57) 809; Arogundade v. State (2009) NWLR (Pt.1 136) 165; Ezeuko v. State (supra); Eyo v. State (2016) NWLR (Pt. 1510) 183; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Nwodo v. State (2019) 3 NWLR (Pt. 1659) 228; Oyem v. FRN (2019) 11 NWLR (Pt. 1683); Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. PER OGBUINYA, J.C.A.
THE POSITION OF LAW ON PROOF BEYOND REASONABLE DOUBT
After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Mohammed v. A. – G., Fed (2021) 3 NWLR (Pt. 1764) 397. In the sight of the law, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of High Court of Lagos State, Lagos Division (hereinafter addressed as “the lower Court”), coram judice: A. O. Opesanwo, J., in Charge No. LD/249C/2014, delivered on 21st December, 2020. Before the lower Court, the appellant and the respondents were the defendant and complainant respectively.
The facts of the case, which transfigured into the appeal, are amenable to brevity and simplicity. The appellant, a realtor, was a customer of the substantive complainant, the Union Bank of Nigeria Plc (UBN Plc): a financial banking institution in Nigeria. The appellant was/is the alter ego of Logic Realtors Limited which was a customer of the UBN Plc too. On 31st October, 2008, at the behest of the appellant, the UBN Plc granted him a facility of N15.75M, at an agreed interest rate, under the UBN Plc/Globe Motors Sales Promotion loan for the purchase of Mercedes Benz R350 model at the cost of N14M. The loan, which had a tenure of 3 years and was to expire in November, 2011, was to be repaid from the salary of the appellant which was to be domiciled with the UBN Plc by his employer: Logic Realtors Limited. In addition, the appellant issued post-dated cheques in favour of the UBN Plc for the repayment of the loan. The appellant defaulted in the repayment of the facility as the cheques were dishonoured on presentation. Sequel to that, the UBN Plc, on 25th May, 2011, wrote a petition to the Economic and Financial Crimes Commission (EFCC) wherein it alleged that the appellant issued dishonoured cheques to it. The EFCC investigated the allegation. After due investigation, the appellant and the Logic Realtors Limited were arraigned before the lower Court in a 12 – count amended information of issuance of dishonoured cheques contrary to the provision of Section 1(1) (b) of the Dishonoured Cheques (Offences) Act, Cap. D11, Laws of the Federation of Nigeria, LFN, 2004. The appellant pleaded not guilty to all the counts in the information.
Following the plea of not guilty, the lower Court had a full-blown determination of the case. In proof of the case, the respondents fielded two witnesses, PW1 and PW2, and tendered tons of documentary evidence – exhibits P – P16. In defence of the case, the appellant and Logic Realtors Limited called two witnesses, DW1 and DW2, and tendered two documentary evidence – exhibits D and DA. At the closure of evidence, the parties through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 21st December, 2020, found at pages 452 – 468, the lower Court found them guilty, convicted them and sentenced them to a term of two years imprisonment and a fine of N100,000.00 respectively.
The appellant was dissatisfied with the decision. Hence, on 18th January, 2021, the appellant lodged an 11 – ground notice of appeal, reflected at pages 469 – 477 of the record, wherein he prayed this Court for:
1. AN ORDER of this Honourable Court allowing the appeal and setting aside the conviction and sentence of the Appellant by the High Court of Lagos State delivered on the 21st day of December, 2020 coram Honourable Justice A. O. Opesanwo.
2. AN ORDER of discharge and acquittal in favour of the Appellant for the offences charged.
Thereafter, the parties, through their counsel filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of criminal appeals in this Court. The appeal was heard on 25th October, 2021.
During its hearing, learned appellant’s counsel, Dele Adeshina, SAN, adopted the appellant’s brief of argument, filed on 20th September, 2021 but deemed properly filed on 23rd September, 2021, and the appellant’s reply brief, filed on 22nd October, 2021 but deemed properly field on 25th October, 2021, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondents, O. Adewunmi, Esq., adopted the respondents’ brief of argument, filed on 18th October, 2021 but deemed properly filed on 25th October, 20201, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned senior counsel distilled a single issue for determination to wit:
Having regard to the totality of the evidence led during trial by the prosecution, whether the trial Court did not come to a perverse decision when it convicted the Appellant and sentenced him to a term of two years imprisonment.
In the respondents’ brief of argument, learned counsel crafter a singular issue for determination, namely:
Whether the Lower Court was Right To Hold That The Prosecution Had Proven Its Case Beyond A Reasonable Doubt.
A close look at the two sets of issues shows that they are identical in substance. In fact, the respondents’ issue can be, conveniently, subsumed under the appellant’s. Given this sameness, I will decide the appeal on the one issue nominated by the appellant: the undoubted owner of the appeal.
Argument on the issue.
Learned senior counsel for the appellant submitted that in criminal cases, the burden of proof is on the prosecution and the standard of proof is one beyond reasonable doubt. He relied on Iliyasu v. State (2014) 15 NWLR (Pt. 1430) 245; Oladele v. Nigerian Army (2004) 6 NWLR (Pt. 868) 166. He asserted that the respondents failed to establish the burden of proof by establishing the elements of the offence – dishonored cheque – under Section 1(1) of the Dishonoured Cheques (Offences) Act. He listed the ingredients of the offence. He cited Abraham v. FRN (2018)LPELR – 44136; Onyekumnaru v. FRN (2018) LPELR – 46040 (CA). He stated that the provision should be given its literal meaning. He relied on UBN v. Ozigi (1992) 5 NWLR (Pt. 240) 228, Omajali v. David (2019) 17 NWLR (Pt. 1702) 438.
Learned Silk contended that the respondents did not prove the first ingredient of the offence because the comfort cheques were not used to obtain the credit but the lien on the appellant’s salary and the car that were used as securities. He added that the appellant had repaid part of the loan. He relied on the evidence of PW1 and PW2. He insisted that the facility was not based solely on the issuance of the post-dated cheques with no other means of repayment as in the case of Abeke v. State (2007) 9 NWLR (Pt. 1040) 411. He reasoned that PW2 admitted that the appellant made payments to offset the amount due.
Learned senior counsel argued that the second ingredient of the offence was not proved because there was no evidence as to when the cheques (exhibit P7) were presented. He relied on Iliyasu v. State (supra). He noted that the endorsements on the cheques did not include the dates of presentation. He claimed that it created doubt which must be resolved in favour of the appellant. He cited Iliyasu v. State (supra); Aikhadueki v. State (2014) 15 NWLR (Pt. 1431) 530. He opined that the lower Court’s finding was wrongly based on speculation. He referred to Ikenta Best (Nig.) Ltd. v. A. – G., Rivers State (2008) 6 NWLR (Pt. 1084) 612; ACB Plc. v. Emostrade Ltd. (2002) 8 NWLR (Pt. 770) 501. He persisted that the lower Court wrongly relied on Section 13 of the Bills of Exchange Act, Cap B35, LFN, 2004, on the dates of presentation of the cheques.
It was further submitted that the respondents did not give notice of dishonour of the cases as required by Sections 48 and 49 of the Bills of Exchange Act. He described the notice as mandatory because of the word “must”. He cited Bamaiyi v. A. – G., Fed. (2001) 12 NWLR (Pt. 727) 428; Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Chukwuogor v. Chukwuogor (2006) 7 NWLR (Pt. 979) 302; Ogwuche v. Mba (1994) 4 NWLR (Pt. 336) 75. He took the view that the lower Court wrongly relied on Section 50 (2) (b) of the Bills of Exchange Act in holding that the appellant waived his right to the notice.
He claimed that the lower Court wrongly raised the issue of waiver suo motu and which breached the appellant’s right to fair hearing. He relied on Arowolo v. Akaiyejo (2012) 4 NWLR (Pt. 1290) 286; Ezeudu v. John (2012) 7 NWLR (Pt. 1298) 1. He noted that the parties and the Court are bound by the record. He cited Ogli Oko Memorial Farms Ltd. v. NACB Ltd. (2008) 12 NWLR (Pt. 1098) 412; Arum v. Nwobodo (2013) 10 NWLR (Pt. 1362) 374. He added that a Court must limit itself to a case made by the parties. He referred to Osagie v. Adonri (1994) 6 NWLR (Pt. 359) 131; Shasi v. Smith (2009) 18 NWLR (Pt. 1173) 330; Kalu v. Uzor (2006) 8 NWLR (Pt. 981) 66. He explained that the lower Court wrongly failed to be bound by the doctrine of stare decisis. He relied on Dalhatu v. Turaki (sic-no year) 15 NWLR (Pt. 843) 341; Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 532. He postulated that the lower Court followed foreign decisions instead of Nigerian cases, Yau v. BON (1994) 1 NWLR (Pt. 321) 461; Tsokwa v. UBN (1996) 10 NWLR (Pt. 478) 281, cited to it. He reasoned that exhibit 5 did not constitute waiver of the notice of dishonour of the cheques. He stated that the banking transaction was an utter abuse of the Dishonoured Cheques Act. He described exhibit P5 as a simple request to restructure the facility and not a waiver of the right in Section 14 of the Bill of Exchange Act.
Learned SAN observed that the appellant satisfied the provision of Section 1 (3) of Dishonoured Cheques (Offences) Act. Based on the evidence of PW2 on payments. He reasoned that the facility had been fully liquidated by the repossession of the subject matter by the UBN Plc and the payments by the appellant. He noted that the respondents failed to produce the report of financial analyst on the outstanding amount and should be held unfavourable to it under Section 167(d) of the Evidence Act, 2011. He referred to State v. Sunday (2019) 9 NWLR (Pt. 1676) 115; Adegbo v. Ogbanje (2014) 10 NWLR (Pt. 1416) 541.
Learned Silk posited that Section 1(1) of the Dishonoured Cheques (Offences) Act is contrary to the intent of the Act because it should not be used to criminalise a simple facility agreement. He relied on Ministry of Education, Anambra State v. Asikpo (2014) 14 NWLR (Pt. 1427) 351 and the evidence of PW2 on the dispute on the amount.
He described the dispute as the crux of the appellant’s defence which the lower Court, in its duty, failed to consider. He cited Wowem v. State (2021) 9 NWLR (Pt. 1781) 295; Williams v. State (1992) 10 SCNJ 74; Bozin v. State (1985) 7 NWLR (Pt. 8) 465; Ada v. State (2008) 13 NWLR (Pt. 1103) 149. He concluded that the lower Court’s decision was perverse.
On behalf of the respondents, learned counsel submitted that the loan and the car were obtained on the strength of the issuance of those post-dated cheques. He relied on the testimony of PW1 and exhibit P1. He denied the assertion that the car was used as a security in exhibit P1. He maintained that the letter of undertaking and signed post-dated cheques were the securities for the facility. He noted that the appellant signed exhibit P12 and knew the dates of presentation. He observed that the appellant showed no evidence of payment of N7.5M as his testimony was not supported by any documentary evidence and the lower Court rightly discountenanced it. He cited Kimdey v. Military Governor, Gongola State (1988) LPELR – 1692 (SC); Odunlami v. Nigerian Navy (2013) LPELR – 20701 (SC); Jolasun v. Bamgboye (2010) LPELR – 1624 (SC). He explained that the evidence of PW2 was from appellant’s statement not exhibit P8. He stated that the appellant’s salary account was never funded. He described the appellant’s evidence on the use of the cheques as contradictory. He noted that Section 1 (2) (b) of the Dishonoured Cheques (Offences) Act destroyed the appellant’s argument that the cheques were not the main source of payment. He insisted that the parties agreed on the cheques as the means to settle the loan payment.
Learned counsel contended that the cheques, exhibit P7, were presented within 3 months of the dates on them. He relied on the evidence of PW1. He said that PW1 is a competent witness. He cited Saleh v. BON Ltd. (2006) LPELR – 2991 (SC).
It was argued that the Dishonoured Cheques (Offences) Act did not make reference to the Bills of Exchange Act to make Sections 48 and 49 of it avail the appellant. Learned counsel reasoned that the appellant’s defence was limited to Section 1 (3) of the Dishonoured Cheques (Offences) Act which he never raised. He described the case of Yau v. BON (supra) as inapplicable. He insisted that the Bills of Exchange Act was inapplicable. He opined that the loan transaction came under the Dishonoured Cheques (Offences) Act. He persisted that appellant failed to repay the facility and the cheques were dishonoured for lack of insufficient funds. He concluded that the respondents proved the elements of the offence beyond reasonable doubt.
On points of law, learned Silk posited that the Bills of Exchange Act was applicable because a Court is enjoined to take judicial notice of all laws/enactments under Section 122 (2) (c) of the Evidence Act, 2011. He cited Speaker, Kaduna State House of Assembly v. Nkom (2019) LPELR – 50961 (CA). He added that the Bills of Exchange Act is an existing law under Section 315 (1) of the Constitution, as amended.
Resolution of the issue.
A clinical examination of the solitary issue, amply, reveals that it is a highly loaded issue. Though seemingly stubborn, its meat is plain. It exhibits a definite mission to puncture/deflate the lower Court’s ultimate findings after the evaluation of the evidence before it. Since its target is a summon on this Court to re-evaluate the evidence, it is imperative to display the essential features of evaluation of evidence as combed out from judicial authorities.
Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and valuate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.
Interestingly, the law, in order to disown injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this coextensive jurisdiction in the appraisal of the flood of documentary evidence in this appeal. Again, I will bear in mind these evidential parameters as the barometer to measure the propriety or otherwise of the lower Court’s evaluation of the evidence in the case. Having been adequately fortified by these current positions of the law, I will proceed to tackle the solo nagging issue in this appeal.
There is no gainsaying the fact, decipherable from the dazzling arguments of the feuding parties, that the appellant’s agitation, on the issue, orbits around the propriety or otherwise of the lower Court’s interpretation of the provision of Section 1(1) of the Dishonoured Cheques (Offences) Act under which the appellant was arraigned before it. In view of this Olympian position, being the cynosure of the vexed issue, it is germane to pluck it out from where it is domiciled in the statute book, ipsissima verba, as follows:
1. Offences in relation to dishonoured cheques, etc.
(1) Any person who-
(a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or
(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 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.
Interestingly, the provision is comprehension-friendly. To this end, the law commands the Court to accord it its ordinary meaning without any embellishments, see Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503. Indubitably, the case-law has evolved the three ingredients of the offence, germinating from the provision, which the prosecution must prove in order to secure conviction of an accused, videlicet: (a) that the person obtained or induced the delivery of an item, capable of being stolen, or obtained credit for himself or any other person by means of a cheque; (b) that the cheque was presented for payment within three months of the date thereon; and (c) that upon presentation, the cheque 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 Abeke v. State (2007) 9 NWLR (Pt. 1040) 411.
Now, the main anchor of the appellant’s chief grievance, indeed his trump card on the knotty issue and, by extension, the appeal, is that the respondents failed to establish concurrently these three elements of the offence laid against the appellant beyond reasonable doubt contrary to the burden duty saddled upon it by law. Per contra, the respondents took a diametrically opposed stance, id est, that it proved those ingredients of the offence by dint of the oral and documentary evidence it presented before the lower Court.
In due fidelity to the expectation of the law, I have consulted the record: the spinal cord of the appeal. My port of call is the residence of the respondents’ viva voce evidence, offered by PW1 and PW2, which colonise pages 265 – 274/351-354 and 275 – 281 of the record respectively. The documentary evidence monopolise pages 12 – 74 of the record. I have perused the parol and documentary with the finery of a toothcomb. In order to appease the law, I have married the evidence in the case, which mothered the appeal, with the elements of the offence of issuance of dishonoured cheque catalogued above. The raison d’ etre for the juxtaposition is not far-fetched. It is to discover whether the respondents, by dint of those pieces of evidence, proved the ingredients of the offence of issuance of dishonoured cheque preferred against the appellant.
In respect of the first ingredient, I invite and employ some of the documentary evidence. In exhibit P, the appellant applied for the facility from the UBN Plc. Exhibit P1 displays explicitly the conditions for the grant of the facility. Therein, the foremost condition – precedent is the issuance of post-dated cheques. A condition – precedent is one that delays the investiture of a right until the happening of an event, see A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jombo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. Thus, a condition precedent puts the realisation of a right in incubation pending the occurrence of an event. In this regard, the issuance of the post-dated cheques was a forerunner and sina qua non for the consummation of the contract of facility. Exhibit P2 defines the subject-matter: a Mercedes Benz R350 model.
It was delivered to the appellant on the grant of the facility valued at N14m. The res is a classic exemplification of a chattel which belonged to the UBN Plc/Globe Motors and, ipso facto, not a res nullius – ownerless chattel. It is axiomatic that it falls squarely within the perimeter of anything capable of being stolen. The appellant took delivery of the item on the footing of the issuance of post-dated cheques comprised in exhibit P7 and letter of awareness of dishonoured cheques in exhibit P12. Drawing post-dated cheques is ordained and sanctioned by Section 13 of Bill of Exchange Act.
In any event, a person who draws a cheque in settlement of an obligation under an enforceable contract shall be deemed to have obtained the credit for himself by means of the cheque notwithstanding that at the time of the contract the manner of settlement of the obligation was not specified. This is the decree of the prescription of Section 1 (2) (b) of the Dishonoured Cheques (Offences) Act. The facility granted to the appellant by UBN Plc was/is a quintessence of an enforceable contract envisaged by the provision. The appellant is trapped in the intractable web of this provision so that it is of no moment that the post-dated cheques were not mentioned ab initio as the means/avenue to settle the facility. The provision, to all intents and purposes, with due reverence, exposes the poverty of the sterling argument of the appellant which christened exhibit P7 as comfort/back up cheques that had no bearing on the satisfaction of the facility. It is disabled from its birth. It cannot fly! In effect, I endorse in toto the lower Court’s finding that the respondents established the first element of the offence.
The appellant’s other coup de main appertains to the second ingredient. To pacify the law, I have given a microscopic examination to the 12 post-dated cheques which are wrapped in exhibit P7. Each bears a round stamp embossed thereon indicating its date of presentation by its holder/drawee – the UBN Plc. The date tallies with the date it was drawn by the drawer – the appellant. The law grants an unbridled licence to a drawee/payee of a post-dated cheque/instrument to present it for payment on the date it is drawn, see Abeke v. State (supra). In this premise, the UBN Plc, the drawee of the post-dated cheques did not fracture the law when it lodged them for payment on the respective dates each was drawn. It stems from this that the presentation of each of the post-dated cheques for payment on the very date it was drawn comes within the ambit of the three months moratorium decreed by Section 1 (1) of the Dishonoured Cheques (Offences) Act. In effect, the second ingredient of the offence was duly fulfilled by the respondents. Therefore, I am drained of any legal justification not to accord a wholesale affirmation to the lower Court’s immaculate finding thereon.
That takes me to the treatment of the appellant’s grudge nursed against the third ingredient. The appellant accused the respondents of want of proof of the ingredient. Again, I have, in due allegiance to the dictate of the law, given an indepth study to the post-dated cheques encased in exhibit P7. Some of them bear the word “R/D” inscribed thereon. In the firmament of banking, the acronym “R/D” signifies Refer to Drawer which connotes “We are not paying go back to the drawer and ask why or else go back to the drawer and ask him to pay”, see Dike v. ACB Ltd. (2000) 5 NWLR (Pt. 657) 441; S.T.B. Ltd. v. Anumnu (2008) 14 NWLR (Pt. 1106) 125. Some of the post-dated cheques wear the inscription: No fund or insufficient fund. The import of these nomenclature/appellations on them is not moot. In a nutshell, it implies that the appellant’s account was in red and impotent to give value to each of the post-dated cheque on presentation for payment. In effect, the post-dated cheques metamorphosed into bounced and dud cheques. In the glaring face of the paucity/drought of funds in the appellant’s account on which the post-dated cheques were drawn, which account resided in the UBN Plc – that doubled as the drawee and collecting bank – it was legitimate to dishonour them, id est, not to give value to them. On this score, the lower Court did not insult the law when it found that the third ingredient of the offence was established by the respondents. I give it an undiluted confirmation.
One of the main planks of the appellant’s appeal is that the lower Court was in grave error on its finding on proof of the ingredients of the offence given the defences invented by him. In this perspective, the provision of Section 135 (3) of the Evidence Act, 2011 comes in handy. It reads:
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The case-law has given its blessing to this provision by its invocation in loads of authorities. In Akinmoju v. State (2000) 6 NWLR (Pt. 662) 608 at 629, lguh, JSC, incisively, declared:
Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the Court, the onus is on the accused to rebut the presumption of guilt or cast a reasonable doubt on the case of the prosecution by preponderance of probabilities.
See, also, Adepetu v. State (1998) NWLR (Pt. 565) 185; Adeniji v. The State (2001) FWLR (Pt. 57) 809; Arogundade v. State (2009) NWLR (Pt.1 136) 165; Ezeuko v. State (supra); Eyo v. State (2016) NWLR (Pt. 1510) 183; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Nwodo v. State (2019) 3 NWLR (Pt. 1659) 228; Oyem v. FRN (2019) 11 NWLR (Pt. 1683); Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221.
In a spirited bid to castrate the lower Court’s finding, the appellant erected two defences: lack of service of notice of dishonour of the post-dated cheques and liquidation of the facility. The appellant staked the first defence, of course the thrust of the appeal, on the provision of Section 48 of the Bills of Exchange Act. Incidentally, the respondents greeted the appellant’s deployment of that statute with stiff opposition on the ground that the Dishonoured Cheques (offences) Act did not incorporate it by reference.
In due loyalty to the injunctive of the law, I have given meticulous audit to the two enactments. Issuance of dud cheques is the epicentre/fulcrum of the Dishonoured Cheques (Offences) Act whilst codification of the law relating to cheques dominates the Bill of Exchange Act. Thus, the two statutes come under the four walls of kindred legislations. In this regard, a party is at liberty to harness/reap from the provision of the other in a deserving circumstance, see CCB v. A-G., Anambra State (1992) 10 SCNJ 137 at 163. Besides, Section 122 (2) (a) and (b) of the Evidence Act, 2011 donates to the Court the jurisdiction to take judicial notice of all legislations and their subsidiaries in its daily duty of interpretation of laws. It flows that the appellant has not defiled the law when it took shelter in a defence warehoused in the Bills of Exchange Act even though standing trial under the Dishonoured Cheques (offences) Act. The objection, contrived by the respondents to abort the appellant’s defence, non-service of notice of dishonour, under the Bills of Exchange Act, in its embryo flies in the face of the law. It is lame. I, therefore, overrule and dismiss it.
It is apropos, having cleared the coast, to mine out the provision of Section 48 of the Bills of Exchange Act, verbatim ac litteratim, as follows:
48. Notice of dishonour and effect of non-notice.
Subject to the provision of this Act, when a bill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each endorser, and any drawer or endorser to whom such notice is not given is discharged.
Provided that-
(a) Where a bill dishonoured by non-acceptance, and notice of dishonour is not given, the right of a holder in due course subsequent to the omission shall not be prejudiced by the omission.
(b) Where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted.
The provision is rebellious to ambiguity. It is discernible, from its phraseology, that a drawer/endorser of dishonoured cheque is entitled to a notice of dishonour and in default thereof he remains discharged. It stems from this provision that the appellant, the drawer of the dishonoured post-dated cheques enveloped in exhibit P7, was, de jure, entitled to a notice of dishonour of each of them or else remained discharged. However, the appellant has only scored a barren victory under the provision in this case. The reason is simple. The provision is made subject to the other provisions of the Bills of Exchange Act. In legal parlance, by the employment of the phrase, “subject to”, which is a term of limitation or restriction, the provision is subordinated to other provisions of the Act, see Osahon v. FRN (2006) 5 NWLR (Pt. 973) 361; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301. In the presence of its subservient position, the provision of Section 50 of the selfsame Bills of Exchange Act, excuses for non-notice and delay, comes to relevance. Specifically, Section 50 (2) (b) of the Bills of Exchange Act states:
50. Excuses for non-notice and delay
(2) Notice of dishonour is dispensed with-
(b) by waiver, express or implied; and notice of dishonour may be waived before the time of giving notice has arrived or after the omission to give due notice;
This provision does not harbour any ambiguity. Its purport is that a party, drawer/endorser, may expressly or impliedly waive service of notice of dishonour of a cheque prior or subsequent to the time of giving such notice. Waiver, in law, signifies the intentional and voluntary surrender, relinquishment, dispensation or abandonment of a known privilege and or right by a party which, at his option, he could have instead on, see Ariori v. Elemo (1983) /SC 13; Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503. It occurs when an individual instead of persisting on due compliance with a statutory right, which accrues to him by default of his adversary, he rather glories in its non-conformity. From the tenor of the waiver provision, chronicled above, the right to service of notice of dishonour of a cheque is domestic/personal to the drawer/endorser (like the appellant) and submissive to waiver by him, see F & F Farms (Nig) Ltd. V. NNPC (2009) 12 NWLR (Pt. 1155) 387; Nnonye V. Anyichie (2005) 2 NWLR (Pt. 910) 633; Belgore v. FRN (supra). This is because such a right is sui juris – one’s own right. In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto- an individual may renounce a law made for his special benefit.
It is important to place on record, perforce, that a drawer’s waiver of the service of notice of dishonour of a cheque can occur anterior or posterior to the arrival of the time for giving the notice. This amphibious characteristics of the provision compels me invoke exhibit P5. It was a letter dated 3rd November, 2010 and written by the Logic Realtors LLC, the corporate guarantor of the facility, to the UBN Plc. I have read it thoroughly. A resume of it is an unreserved admission of the appellant’s failure to keep faith with his obligation in repaying the facility. He acknowledged his indebtedness to the UBN Plc and proposed immediate down payment of N1m and “liquidate the rest over a period not exceeding twelve (12) calendar months”. The last post-dated cheque was issued and dishonoured on 30th October, 2010. I have situated the age of exhibit P5 with the ages of the post-dated cheques. Indisputably, by their chronological ages, the exhibit P5 was later-in-time to the last dishonoured cheque in the bundle of post-dated cheques housed in exhibit P7. Nevertheless, the clear content of exhibit P5 (anatomised above) provides ample and concrete evidence of conduct sought to infer waiver “after the omission to give the due notice” as mandated by Section 50 (2) (b) of the Bills of Exchange Act. The reason is simple. Waiver may be implied from conduct that is inconsistent/incompatible with the continuance of the right of a party, see Bank of the North Ltd. v. Yau (2001) 5 SC (Pt. 1) 121. It flows that even though the drawee, UBN Plc, neglected to serve notice of dishonour of the post-dated cheques on the appellant, he had, in the eyes of the law, waived the requirement of the due notice on the footing of the content of exhibit P5. In effect, the defence of want of service of notice of dishonour of the post-dated cheques which the appellant erected, paraded and brandished in the case, which parented the appeal, is mired in the quicksand of waiver. The weak-kneed defence is not only uncharitable and unsustainable but vaporizes in the presence of exhibit P5.
By the same token, the appellant’s defence of total liquidation of the facility is a feeble one. The content of exhibit P5 neutralises, or even demolishes, the effervescence of the defence. I dare say, the defeasible defence takes to flight on confrontation with the content of exhibit P5. In the aggregate, the twin defences are impotent to emasculate the solemn finding of the lower Court done after due consultation with the law.
The appellant stigmatised the lower Court’s evaluation of the evidence as perverse. A verdict of Court is perverse when: it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Igbikis v. State (supra) ; Saleh v. State (2019) 8 NWLR (Pt. 1675) 416.
I have matched the lower Court’s evidential evaluation with the incidents of perverse decision outlined above. It can be gleaned from the comparison that the lower Court did not invoke extraneous or foreign evidence in the evaluation of the evidence presented before it. Nor did it close its eyes to pieces of evidence that cried for its attention in the judgment. It confined itself to the viva voce and documentary evidence furnished before it by the parties. Having regard to the foregoing, I hold the considered view that the evidential evaluation was not marooned in the ocean of perversity as to magnet the intervention of this Court.
My noble Lords, it stems from this legal tour d’ horizon on evaluation of evidence, done in due obeisance to the law, that the respondents proved the necessary ingredients of the offence, issuance of dishonoured cheques, preferred against the appellant beyond reasonable doubt as mandated by Section 135 (1) of the Evidence Act, 2011. In the view of the law, proof is a process by which the existence of facts is established to the satisfaction of the Court, see Section 121 of the Evidence Act, 2011; Salau v. State (2019) 16 NWLR (Pt. 1699) 399.
After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Mohammed v. A. – G., Fed (2021) 3 NWLR (Pt. 1764) 397. In the sight of the law, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425.
It implies that the solemn finding of the lower Court, which inculpated the appellant, as the particeps criminis of the offence charged, is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it, see Olatubosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287.
Flowing from the above juridical survey, the lower Court did not offend the law when it found ultimately that the respondents proved, beyond reasonable doubt, the offence levelled against the appellant. The lower Court acted ex debito justitiae in its finding against the appellant. On this score, I, therefore, with due respect, dishonour the learned appellant’s counsel’s salivating solicitation to sacrifice the decision on the undeserved altar of improper and perfunctory evaluation of evidence for want of legal justification. In the end, I have no option than to resolve the solitary issue against the appellant and in favour of the respondents.
On the whole, having resolved the mono issue against the appellant, the destiny of the appeal is obvious. It is devoid of any grain of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 21st December, 2020.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance the draft judgment just rendered by my learned Brother OBANDE FESTUS OGBUINYA JCA. I agree that the appeal is unmeritorious and is accordingly dismissed by me.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: Before now, I had read in advance the judgment just delivered by my Learned Brother, OBANDE FESTUS OGBUINYA, JCA. I agree with the reasoning and conclusion and abide by the orders decreed in the leading judgment.
Appearances:
Dele Adeshina, SAN with him, E.I. Asuzu Esq. For Appellant(s)
O. Adewunmi, Esq. For Respondent(s)