ALHAJI MOHAMMED MMAMMAN VS FEDERAL REPUBLIC OF NIGERIAUncategorized
ALHAJI MOHAMMED MMAMMAN VS FEDERAL REPUBLIC OF NIGERIA
In the Supreme Court of Nigeria
Monday, April 22, 2013
Case Number: SC. 97/2011
WALTER NKANU SAMUEL ONNOGHEN JUSTICE, SUPREME COURT
CHRISTOPHER MITCHEL CHUKWUMA-ENEH JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR JUSTICE, SUPREME COURT
MUSA DATTIJO MUHAMMAD JUSTICE, SUPREME COURT
CLARA BATA OGUNBIYI JUSTICE, SUPREME COURT
ALHAJI MOHAMMED MMAMMAN
FEDERAL REPUBLIC OF NIGERIA
(Delivered By Bode Rhodes-Vivour, JSC)
In an amended twelve count charge filed before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal, the appellant as accused person was charged on counts 1, 9, 10, 11, and 12. He was found guilty on counts 9 and 11 and sentenced on count 9 to N100, 000 fine or 2 years imprisonment, and on count 11 to N5,000 fine or 6 months imprisonment.
Dissatisfied with the judgment he appealed. The appeal came before the Court of Appeal, Benin Division. The concluding paragraph of the judgment of that court reads:
‘On the whole, for the reasons stated above by me, this appeal succeeds in part and it is hereby allowed appropriately. The conviction and sentence of the appellant pursuant to count 9 of the Amended Charge by the Tribunal are affirmed and confirmed respectively and accordingly. However, the appellants conviction and sentence on count 11 are quashed and I hereby order that the said count 11 against the appellant be struck out.
This appeal is against that judgment. In accordance with the Rules of this court briefs were filed and exchanged. The appellants brief was deemed filed on the 15th of February 2012, while the respondents brief was deemed filed on the 29th of November 2012.
Learned counsel for the appellant formulated a sole issue for determination. It reads:
1. Was the appellate court right in upholding the interpretation of the Tribunal that section 18(1)(b) of BOFID creates two offences and thereby held appellant guilty for granting unauthorized advances or credit facility in contravention of exhibit FB45.
On the other side of the fence learned counsel for the respondent formulated two issues for determination of this appeal. They are:
1. Whether the Court of Appeal was right in affirming the decision of the Failed Bank Tribunal in convicting and sentencing the 1st accused on count 9.
2. Whether count 9 predicated on section 18 (1) (b) of Banks and other Financial Institutions Decree No.25 of 1991 (otherwise referred to as BOFID) is bad for duplicity of charges.
I have examined the Record of Appeal and the briefs filed by counsel. The appellant was
convicted because he granted unauthorized credit. To my mind the live issue for determination is whether the appellant did in fact grant unauthorized credit. Issue 1 presented by learned counsel for the respondent would easily resolve that issue and incidentally the only live issue. At the hearing of the appeal on the 29th of November 2012 learned counsel for the appellant Mrs. E.A. Uwaifo adopted the appellant brief deemed filed on the 15 of February 2012 and urged this court to allow the appeal.
Learned counsel for the respondent Dr. V.J.O. Azinge adopted the respondents brief deemed filed on the 29th of November 2012 and urged this court to dismiss the appeal.
Whether the Court of Appeal was right in affirming the decision of the failed Banks Tribunal in convicting and sentencing the 1st accused person on count 9.
COUNT 9 reads:
‘That you Mohammed Kabir MMAM MAN (m) between the 25th day of November, 1993 and 3rd December 1993 at Kano within the jurisdiction of this tribunal, whilst being Relief Manager of Allied Bank of Nigeria PLC, Kano main branch granted unauthorized advances or credit facilities totaling N61,075,000 (Sixty-one million, seventy five thousand Naira only) to your customer, one Alhaji Ibrahim Abubakar Mohammed (m), in violation of the Rules and Regulations of the Bank and thereby committed an offence contrary to section 18 (1) (b) of the Banks and other Financial Institutions Decree No.25 of 1991’
The appellant was charged with granting unauthorized advances or credit facilities amounting to N61,075,000 to Alhaji Ibrahim Abubakar, a customer of the Bank contrary to section
18(1)(b) of the Banks and other financial institutions Decree No.25 of 1991, and the Rules and Regulations of Allied Bank.
After reviewing evidence the learned trial judge found the appellant (1st accused) guilty on count 9.
His lordship said:
‘The 1st accused to my mind contributed in perpetuating the irregularity, if not illegality associated with the instant credit facility granted to the 3rd accused irrespective of the huge amount involved and irrespective of the embargo imposed on granting such facility. The Rules and Regulation shown to have been violated are found in exhibit FB45. The 1st accused was not authorized or empowered by the Bank to grant direct credit as he did. It was granted contrary to the Regulation and circular of the Bank, exhibit FB45 disallowing the grant of credit facility. The direct facility allowed the accused was unauthorized and thereby rendered the 1st accused liable to conviction on count 9 under section 18(1) (b) of BOFID.’
In confirming the judgment of the trial tribunal Court of Appeal said:
‘I cannot agree more with the above stated conclusions of the learned trial judge. The defence of ignorance of the credit guidelines glibly relied upon by the appellant and his exercise that Alhaji I.A. Mohammed had long been accorded special privileges of credit facilities from the Banks Kano branch are of no moment and cannot avail him. Unfortunately for the appellant, he got ensured and shackled when he contravened his employers guidelines with his two eyes wide opened and his understanding antenna properly tuned. He has himself to blame for his indiscretion.’
Concluding the Court of Appeal then said:
‘…………….In my sincere view, the Tribunal made far reaching findings of facts after assessment and evaluation of the evidence adduced before it unhesitatingly, I hold that the case against the appellant on count 9 was proved.’
Learned counsel for the appellant observed that there is miscarriage of justice in the concurrent findings of two lower courts as it concerns count 9, contending that the interpretation of section 18(1) (b) of the Decree by both courts below affected the charge consequently the entire proceedings at the trial. She further observed that heavy weight was placed on exhibit FB45 by both courts without calling the maker. She urged this court to acquit and discharge the appellant on count 9.
Learned counsel for the respondent submitted that the Court of Appeal was right in affirming the decision of the Failed Bank Tribunal in count 9 as all the necessary ingredients of section 18(1) (b) of BOFID was proved and established by the prosecution as required by law. He urged this court of uphold the findings of the lower court in respect of count 9 of the charge.
To succeed in a charge under section 18(1) (b) of BOFID the prosecution must establish the following to the satisfaction of the court.
(1) that the accused person is a Manager or officer of the Bank.
(2) that the accused person granted an advance loan or credit facility to a person.
(3) that the credit facility was granted without authorization as provided by the Rules and Regulations of the Bank, or
(4) where security is required such security shall be deposited in the Bank before
the advance, loan or credit facility is approved and given to the customer.
(1) (2) and (3) must coexist. (4) becomes mandatory only if security is required.
Now, Section 27 of the Evidence Act states that-
’27 ‘A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime.’
The position of the law is that once the court is satisfied that the confession is voluntary it can convict an accused person. A confession is an acknowledgment of guilt by whoever makes the confession and it is usually in writing but may be made orally. It is relevant and admissible when it identifies the person who committed the offence and proves the fact that constitutes one or all the ingredients of the offence. See
Yusuf v. State 1976 6 SC p.167
Igbinovia v. State 19812 SC p.5
The appellant in his written statement to the Police said:
‘…………I was posted to Kano January 1992 as Asst. Manager. In September 1992 I was given Head of Customer Services in charge of Operations, that is officer in charge of general duties within the banking Hall and in charge of staff duties sometime in 29th November 1993 Mr. Balo Jabo left the branch for Victoria Island Branch. I was overseeing the day to day running of the branch until when the new Manager Mr. Aminu Suleiman resume as the Manager.’
The above satisfies (1) above that the appellant is a Manager or officer of the Bank
Under cross-examination the appellant said what amounts to an admission. He said:
‘…………Yes I granted direct credit facility to the 3rd accused, while I was relief Manager of the branch. It was a regular practice of the bank to allow the 3rd accused direct credit facility. There was no formal authorization and I could not stop it.’
This testimony satisfies (2) and (3) above. The findings of the trial Tribunal affirmed by the Court of Appeal earlier alluded to are correct. By his own admission the appellant made it abundantly clear that his actions were contrary to the Regulation and circular of the Bank- exhibit FB45. In the circumstances the appellant is guilty of count 9.
Courts should on no account spend precious judicial time on issues that are academic. They should determine live issues, and those are issues that would meet the ends of justice. See
Oyeneye v. Odugbesan 1972 4 SC p.244
Bakare v. A.C.B. Ltd 1986 3NWLR pt.26 p.47
Nzon v. Jinadu 1987 1 NWLR pt.51 p.537
The only live issue in this appeal is whether the appellant granted unauthorized credit facility. He admitted it under cross-examination when he said:
‘Yes I granted direct credit facility to the 3rd accused, while I was relief Manager of the branch. It was a regular practice of the bank to allow the 3rd accused direct credit facility. There was no formal authorization and I could not stop it……………”
To my mind that settles the live issue in this appeal. But it is important I address whether there was miscarriage of justice as contended by learned counsel for the appellant.
There is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is failure on the part of the court to do justice. That is to say the court did what amounts to injustice. See
Oladija sanusi v. Oreitan Ameyegun 1992 4 NWLR pt.237 p.527
Harrison Okonkwo & anor. V. Godwin Udoh 1997 9 NWLR pt.519 p. 16
Ojo v. O. Anibire & ors 2004 10NWLR pt.882 p.571
There is no miscarriage of justice where legislation states clearly that it is an offence to grant unauthorized credit and the appellant admitted that he granted unauthorized credit to one Alhaji Ibrahim Abubakar in the sum of N61, 075, 000. (six-one million, seventy-five thousand naira). The evidence against the appellant is one way and conclusive. The charge (count 9) was proved beyond reasonable doubt.
The defence of the appellant is that the 3rd accused had always enjoyed direct credit facility and that he could not stop the indulgence. The fact that this was going on does not make it right and the fact that officers of the bank responsible were not brought to book/charged does not make similar acts of granting unauthorized credit right.
This court does not upset concurrent findings of fact of the courts below except where:
(a) the findings of fact are erroneous or perverse, and/or not based on evidence led.
(b) where there has been in the course of trial some violation of some principle of law or procedure.
(c) there has been miscarriage of justice. See
Ogba v. State 1992 2 NWLR pt.222 p.164
Ogbu v. State 1992 8 NWLR pt.259 p.255
Dakolo y. Dakolo 2011 46 NSCQR p.669
The trial tribunal based on the admission of the appellant found and quite rightly too that he acting as a relief Manager of Allied Bank of Nigeria, Kano branch, granted unauthorized credit
facility of N61,075,000 to one Alhaji Ibrahim Abubakar, an act clearly in violation of the Rules and Regulations of the Bank (Exhibit FB45), thereby committing an offence under section 18 (1) (b) of the Banks and other Financial Institutions Decree No 25 of 1991.
The above was affirmed by the Court of Appeal. My lords, the fact that the appellant told the truth by admitting that he did grant unauthorized credit makes concurrent findings of the courts below correct. The findings are clearly not perverse.
There is no substance in this appeal. It is accordingly dismissed.
(DELIVERED BY WALTER SAMUEL NKANU ONNOGHEN, JSC)
I have had the benefit of reading in draft, the lead judgment of my learned brother, RHODES-VIVOUR JSC just delivered.
I agree with his reasoning and conclusion that the appeal is without merit and should be dismissed
I therefore dismiss the appeal.
(DELIVERED BY MUSA DATTIJO MUHAMMAD, JSC)
The preview I had of the judgment of my learned brother Rhodes-Vivour JSC enables me to entirely agree with him that the appeal completely lacks merit and has to be dismissed.
The appellant was tried and convicted under Section 18(1) (b) of the Banks and other financial institutions Decree No. 25 of 1991 and the Rules and Regulations of his employers: the Allied
Bank. It is an offence under these provisions to grant unauthorized loans or credit facilities. Appellant was alleged to have granted one Alhaji Ibrahim Abubakar the sum of N61,075,000 in breach of the clear provisions of S 18 (1) (b) of Decree No. 25 and the Regulations of the Allied Bank.
Appellant, both in his extra judicial statement to the police and evidence under cross examination, stated that in 1992 before the assumption of duties by Aminu Suleiman as the manager of the branch of the bank in Kano, he was the Assistant manager and Head of customer services in charge of operations. He oversaw the day to day running of the branch after the departure of Bala Jabo on posting to the banks Victoria Island Branch; that as the then relief manager of the branch, he granted the 3rd accused direct credit facility without the required authorization.
Exhibit FB 45 makes authorization prior to the grant of such advances a necessity. The trial tribunal in finding the appellant guilty inter-alia held as follows:
“The 1st accused was not authorized or empowered by the Bank to grant direct credit as he did. It was granted contrary to the Regulation and circular of the Bank, Exhibit FB 45 disallowing the grant of credit facility. The direct facility allowed the 3rd accused was unauthorized and thereby rendered the 1st accused liable to conviction on count 9 under 5 18(1) (b) of BOFID.’
Dissatisfied by the above finding of the trial tribunal, the appellant appealed to the Benin division of the court of Appeal against his conviction and sentence by the trial tribunal for two counts, 9 and 11, of the four counts he was tried for. The trial court had discharged and acquitted the appellant in respect of the other two: counts: 1 and 10. The lower court allowed appellants appeal in part. While his conviction and sentence in respect of count 11 was quashed, the court affirmed appellants conviction and sentence pursuant to count 9. Still aggrieved, he has appealed to this court.
The two lower courts made concurrent findings in respect of appellants guilt regarding count 9. Such findings are only interfered with on appeal if found to be perverse. A courts finding is said to be perverse if the finding draws wrong inference from the evidence before it or where same has occasioned miscarriage of Justice See Ukpabi v. State (2004) 11 NWLR (Pt 884) 439 SC and Aiguokhian v. State (2004) 7 NWLR (Pt 873) 565 SC.
In the case at hand, the conviction and sentence of the appellant on count 9 as affirmed by the court below is particularly inferred from appellants positive and clearly unequivocal confession that as an officer of his bank he had advanced a credit facility without formal authorization of the Bank. Ex FB 45 is the Banks Regulation and circular disallowing such advances by its managers. These pieces of evidence, appellants confession and Exhibit FB 45 puts the appellant squarely within the purview of section 18(1) (b) of BOFID. This court, in a seemingly endless chain of decisions, has held that a free and voluntary confession such as that of the appellant herein, if properly taken, tendered, admitted and proved to be true, is sufficient to support a conviction. Beyond his extra judicial statement to the police admitting the offence on count 9, the appellant persisted under cross examination in open court that he had, without formal authority, advanced credit facility to another, a fit that is illegal under section 18 (1) (b) of BOFID. Appellants conviction on his confessional statement and the affirmation of such a conviction cannot be said to be perverse. See Edet Obosi v. The State (1965) NWLR 119, Jimoh Yesufu v. The State (1976) 6 SC 167, Dawa v. State (1980) 8-11 SC 236 at 267-268 and Nsofor v. State (2004) 18 NWLR (Pt 905) 292 at 310-311 SC. I so hold.
It is for the foregoing offered purely in emphasis of the fuller and further reasons contained in the lead judgment that I also dismiss the appeal and affirm the decision of the court below.
(DELIVERED BY CLARA BATA OGUNBIYI, JSC)
I have read in draft the lead judgment just delivered by my learned brother Rhodes-Vivour, JSC. I agree that the appeal is devoid of any merit and I also dismiss same in terms of his reasoning and conclusion arrived thereat.
Briefly and for purpose of emphasis, I wish to state that on a cursory review of the record of appeal the totality reveals that the conclusion arrived at by the learned trial judge and affirmed by the lower court was predicated upon a very sound reasoning which cannot be faulted.
In otherwords, the anchoring ground supporting the trial courts finding was the admission of the offence by the appellant himself, who, on his own volition testified that he did grant unauthorized advances or credit facilities to one Alhaji Ibrahim Abubakar, a customer of the Bank. It was also expected to be within the knowledge of the appellant that his act was clearly in violation of section 18 (l)(b) of the Banks and other financial institutions Decree No. 25 of 1991 as well as the Rules and Regulations of Allied Bank. This is especially where it is on record that the appellant was a highly placed officer of the bank and he was the Relief Manager at the material time. He cannot therefore claim ignorance of the working expectations of the bank. Count 9 for which the appellant was charged is very specific on the placing and position held by the appellant in the banks organization. I also hasten to add that the appellant knew the consequences and the legal effect of his confession as well as the gravity of violating the terms of his office of employment. In otherwords it was clear to him that he acted contrary to Exhibit FB45 and thereby committed an offence under section 18(1) of the Banks and other Financial Institutions Decree No. 25 of 1991.
The appellant in the result cannot be allowed to approbate and reprobate. He had on his own confession hooked in himself and cannot now seek to be let off by introducing elements of miscarriage of justice. Justice is not a one way traffic but for all parties concerned and must be seen as done. The argument by the appellant in that behalf, I hold is a complete misconception of the concept of justice and the absence thereof.
The findings and conclusion arrived at by the learned trial judge and affirmed by the lower court is on a very sound footing and cannot be faulted. I have no reason in the circumstance to interfere with the decision. The concurrent judgments have come to stay and I also affirm same in terms of the lead judgment of my brother and I so hold.
Mrs. E.A. Nwaifo for the Appellant.
Dr. V.J.O Azinge with N, Amka for the Respondent.