ALHAJI MUSA SULEIMAN v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/11880(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 10th day of July, 2018
CA/K/516A/C/2017
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court. This is so, since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently, where this is done, the Appeal Court should always be reluctant to differ from the trial judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an appellate court can re-evaluate evidence, which has not been shown to be so in this case. See – Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Abeke v State (2007) 9 NWLR Part 1040 Page 411 at E-F Para per Mukhtar JSC (as he then was).” PER OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
ALHAJI MUSA SULEIMAN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.(Delivering the Leading Judgment):
The facts leading to the appeal before this Court, are that the Appellant, together with his son, Ibrahim Suleiman, carrying on business under the name and style of Alhaji Musa Suleiman General Enterprise, obtained various consignments of rice and vegetable oil from Stallion Nigeria Ltd (hereafter referred to as ?the Nominal Complainants?) and its subsidiaries, for which they issued various cheques in payment. The cheques were however returned unpaid, on account of insufficient funds standing to their credit in the bank. Following a petition by the Nominal Complainant to the Economic and Financial Crimes Commission (EFCC), the Appellant, together with his son and their business enterprise, were charged on the 19th day of May 2014 before M.T.M. Aliyu J of the Kaduna State High Court on 31 counts, bordering on issuance of various dud cheques, contrary to the provisions of Section 1(1) of the Dishonoured Cheques (Offences) Act Cap D11, Laws of the Federation of Nigeria, 2004.
Six witnesses testified for the prosecution. At the close of the prosecution’s case, the defence filed a no-case submission, which was however overruled by the Court, following which the Appellant, testifying as DW1, together with his son, Ibrahim Musa (DW2), gave evidence in their defence. They were the sole defence witnesses.
The defence of the Appellant and co-convict, in the main, was that there was a ‘special arrangement’ that existed between the parties, whereby the cheques issued in payment were signed but not dated and it was only following the sale of the goods supplied, that instructions would be given to the nominal complainants for their presentment. They also alleged that the amount for which they were arraigned was not accurate, as payments had been made by them in amortization of the amount, but which cheques in respect thereof had not been returned to them by the nominal complainant.
Furthermore, following the incarceration of the Appellant, some of the goods supplied were seized from their warehouse, thereby reducing the amount owing.
At the conclusion of the trial, the learned trial judge, in a judgment delivered on the 9th day of February, 2017 convicted the Appellant and his son, Ibrahim Suleiman, and sentenced them to two years imprisonment each on each of the counts they were convicted on, the sentences to run concurrently. The trial Court further awarded the sum of Two Hundred and Forty-one Million Naira (N241,000,000.00) as ‘restitution/compensation’ to the nominal complainants.
Dissatisfied with the decision, the Appellant appealed to this Court, by Notice of Appeal filed on 10/3/17, subsequently amended, by leave of this Court on 7/6/18, deeming the Notice of Appeal filed on 30/5/18 as properly filed.
In prosecution of the appeal, the Appellant, by its Amended Brief of Arguments filed on 13/2/18 but deemed properly filed on 7/6/18, settled by Abdulaziz Ibrahim, Nasir Saidu, Abdullateef I. Muhd, R.A.C Ekenji, E.E, Samuel, Muhktar U. Bunza and Amaka Illoh of Abdulaziz Ibrahim & Co, distilled three issues for the Court’s determination, namely:
1. Whether the burden of proof with respect to the arrangement concerning the dating of cheques issued to the nominal complainants lies with the Appellant.
2. Whether having regard to the totality of evidence adduced at the trial Court particularly the unchallenged evidence of DW1 on the trade practice that existed between him and the nominal complainant, the trial Court ought not to have discharged and acquitted the Appellant.
3. Whether the award of the sum of Two Hundred and Fifty-One Million Naira (N241,000,000.00) as restitution/compensation in favour of the nominal complainant is supported by evidence.
In response, the Respondents filed a Brief of Arguments on 3/5/18 but deemed properly filed by this Court on 7/6/18, settled by Benjamin Lawan Manji of the Legal and Prosecution Department of Economic and Financial Crimes Commission, formulating therein three issues for the Court’s determination, as follows:
1. Whether the lower Court was right when it held that the defendant having admitted signing the cheques are bound by the contents of the cheques and cannot be heard to disown the cheques when ex-facie the cheques are dated.
2. Whether having regard to the totality of evidence adduced at the trial Court, the trial Court was right in convicting the Appellant as it did.
3. Whether the evidence led and circumstance of the case justified the award of the sum of N241,000,000.00 made by the lower Court in favour of the nominal complainant.
In the determination of this appeal, the issues distilled by both Counsel are similar, I note. I shall accordingly adopt them, with slight modifications for succinctness and clarity, as follows:
1. Whether the lower Court was right when it held that the Appellant, having admitted signing the cheques, is bound by the contents of the cheques and cannot be heard to disown them.
2. Whether having regard to the totality of evidence adduced at the trial Court, the trial Court was right in convicting the Appellant as it did.
3. Whether the evidence led and the circumstances of this case justified the award of the sum of N241,000,000.00 made by the lower Court in favour of the nominal complainant.
The 1st and 2nd issues shall be considered together.
Learned Counsel to the Appellant has submitted that the burden of proving that any person is guilty of a crime rests squarely on the prosecution, accusing the lower Court of shifting the burden of proof on the Appellant on the issue of arrangement concerning the dating of the cheques, which is a constituent of one of the ingredients of the offence to be proved. He cited the cases of Umaru vs State (2016) ALL FWLR (Part 853) 1645 at 1668 Paragraphs B-H, Aliyu vs State (2016) ALL FWLR (Part 852) 1515 and Mrs. Patience Ayo vs the State (2010) ALL FWLR (Part 530).
He submitted that the prosecution failed in investigating the defence of the Appellant with regard to the dating of the cheques. Having entered a plea of ‘not guilty’ to the charges, the burden rested on the prosecution of proving that the cheques in issue were all dated at the time they were handed to the nominal complainants. The evidence of the Appellant, DW1, remained consistent, as also contained in his statement to the Respondent, Exhibit 41A. He cited the case of Abeke vs State (2007) 9 NWLR (Part 1040) 411 at 432, Paragraphs G-H.
On the 2nd issue of the propriety of convicting the Appellant, in view of the evidence before the Court, learned counsel submitted that the judgment of a Court of law must demonstrate a full and dispassionate appraisal of all evidence placed before the Court and a trial Court, being the Court that had the opportunity of seeing and hearing witnesses, must first of all put the totality of the testimony adduced before it on that imaginary scale and weigh the evidence before ascribing probative value to such evidence. He cited the case of Onyi Bor Anekwe vs Maria Nweke (2014) ALL FWLR at 739, Pages 1175-1177 Paragraphs H-A.
Agreeing that this Court will not ordinarily interfere with findings of fact by the trial Court, he contended that this Court will, where there is ample evidence which the trial Court failed to evaluate and make current findings on. He cited the case of Balogun vs Labiran (1988) 19 NSCC (Part 1) 1056. The conviction of the offence of issuance of dud cheques, he submitted, is against the weight of evidence and urged the Court to resolve this issue in favour of the Appellants.
Learned Counsel to the Respondent, in the Respondent’s Brief, contended however, that it was the Appellant who asserted that he did not date the cheques. It will therefore be incongruous for the Appellant to argue that the Respondent should bear the burden of proving the issue of dating the cheques, on the legal principle that he who asserts must prove.
The burden that was placed on the Respondent at the trial Court, was to prove satisfactorily that the cheques in question were issued by the Appellant and his co-convicts and this, the Appellant did beyond any shadow of doubt. Since the Appellant, as his defence, sought to take refuge in the fact that he did not date the cheques, it was for him to so convince the Court of this and of his alleged special arrangement with the nominal complainant, which he failed to do. Citing the case of Idemudia vs State (2015) LPELR 24835 (SC) at page 36 Para B-C, he submitted that since the Appellant did not supply material facts relating to his alleged special arrangement regarding the dating of the cheques, there was no onus on the Appellant to disprove his assertion.
Counsel further submitted as settled law, that not every comment described as obiter in a judgment is appealable, but the ratio decidendi. It was his contention that the lower Court did not arrive at its decision on the basis that the Appellant did not prove his alleged special arrangement of issuing undated cheques but it held the prosecution’s case proved that the cheques were issued by the Appellant and his co-convicts and were ex-facie dated.
The contents of a document, he said, are binding on the person who signs the document, citing the case of Nwarie vs Adakwa (2016) LPELR – 41600 (CA) at Page 14 Paras B-E. He further contended that the Appellant, having admitted signing several cheques which were returned unpaid on account of non-funding of the account, cannot be heard to disown the contents of the very cheques he admitted signing. The charge of the lower Court wrongly placing the burden of proof on the Appellant as to dating the cheque in question, is therefore of no moment, as it did not form the fulcrum of the judgment of the lower Court.
Section 1 of the Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation of Nigeria 2004 provides as follows:
Section 1
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.
2 For the purposes of Subsection (1) of this Section-
a. the reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property;
b 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.
3. 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 fact, that it would be honoured if presented for payment within the period specified in Subsection (1) of this section.
To constitute this offence, the prosecution, I hold, must prove:
1. That the Appellant obtained credit for himself;
2. That the cheque was presented within three months of the date thereon; and
3. That on presentation, the cheque was dishonoured on the ground that there were no funds or insufficient funds 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 Part 1040 Page 411 at 437 Para A-D per Onnoghen JSC (as he then was).
In satisfaction of the 1st and 3rd requirements that the Appellant obtained credit for himself and that on presentation of the cheques issued, they were dishonoured for insufficiency of funds, is not in doubt or disputed, as this has been admitted by the Appellant, both in his evidence before the lower Court and in his statements to the EFCC (Exhibits 41A-41C), and also confirmed by PW3 and PW4, the bank officials from Stanbic IBTC and Eco Bank, the banks on which the cheques were drawn. These requirements were rightfully held proved by the lower Court.
It is the 2nd requirement that is disputed by the Appellant, viz that the cheque was presented within three months of the date thereon.
The relevance of the ‘special arrangement’ relied upon by the Appellant, with regard to giving signed, undated cheques to the nominal complainants upon the supply to the Appellant and co-accused with goods, is to beat the requirement in Section 1(b) of the Dishonoured Cheques (Offences) Act Supra that the cheques should have been presented for payment not later than three months after the date of the cheque.
The lower Court, faced with these submissions, held, at Page 514 of the Record:
from the evidence of PW1 and PW2, the staff of the nominal complainant, the cheques are issued to them by the Defendant and they lodge them in their account for credit. None of them stated that the cheques issued to them by the Defendants were not dated.
Unfortunately, none of these two witnesses were cross examined by the Defendants on the arrangement concerning who dates the cheques and when they were dated. Under cross examination both PW1 and PW2 maintained that the cheques issued to them by the Defendants were dated. It seems to me that the right time to challenge the evidence of the prosecution is when the prosecution witnesses are still in the witness box?.
The Defendants failed to challenge the evidence of PW1 and PW2 as to who dates the cheques and when. They also called no evidence, apart from their oral testimonies, to prove that the cheques in issue in this case were all not dated by them and the persons who dated them had no authority to so date them. Their oral testimonies on the issue cannot therefore dislodge the unchallenged evidence of the PW1 and PW2. I so hold. I have also compared the dates on the cheques with the dates on Exhibits 32 (1) – (140) and the dates tally. All the cheques and the Delivery Notes Exhibits 32(1) – (140) are dated in August 2013. This evidence supports the testimonies of the PW1 and the PW2 whose unchallenged evidence is to the effect that the cheques were all issued in August during the sallah festive period.
Contrary to the evidence of the defendants none of the cheques and Exhibits 32 (1) – (140) was issued after 25th August 2013. None of these exhibits was issued after the 2nd defendant had travelled since by his own testimony, he travelled on 26th August 2013. I hold that the defendants having admitted signing the cheques in this case are bound by the contents of the cheques and cannot be heard to disown the cheques when ex-facie, the cheques are dated.
The Court thence proceeded to the evidence of PW3, the Head, Service Support of Stanbic IBTC and PW4 from Eco Bank, the Accounts Officer of the Appellant and co-convicts, which witnesses identified the cheques in question, all of which were dated on diverse dates in August and presented the same month, while some were presented in September, in line with the requirement in Section 1(b) of the Dishonoured Cheques (Offences) Act Supra.
Admittedly, the statement of the Appellant to the Respondent, made on 24/9/13, Exhibit 41A, is that:
”we have an understanding of notifying them of availability of funds in our account before presentation of the cheque for payment?I cannot categorically know the exact amount of supplies made to my company. Only my son, Ibrahim Suleiman is in a position to provide the information because he is the one in charge of all my business dealings. I only sign the cheques as soon as I am sure that the supplies have been in my warehouse? I sign bank cheques without providing details as to the beneficiary or amount involved because of the trust and confidence I have in my son Ibrahim
In a subsequent statement made on 2/10/13, Exhibit 41B, further to admitting having issued other specified cheques, he stated:
”I wish to categorically state that all the cheques stated above were written and issued as security or collateral to be held by the various companies pending when (we are) my son Ibrahim Musa is able to sell the commodities he normally purchases from the companies (sic). It is also necessary to state that all the cheques were signed by me and handed over same to my son Ibrahim Musa without (neither) date or amount written on them because of the trust I have for him over the years.”
His evidence in Court was to the same effect.
The evidence of PW1, the Business Development Manager of the Nominal Claimant and PW2, its Marketing Manager, are however a denial of any such arrangement. Their evidence is that they have been dealing with the Appellant since 2012 and that the cheques presented were only those dishonoured in the month of August and September 2013. The practice over the years was that following delivery of the goods to the Appellant and his company, delivery notes would be given and payment made by cheques. Following the dishonor of the cheques in question, the Appellant and co-convict apologized, promising to clear the cheques and requesting for further supply of goods, cheques for which were also dishonoured. When the Appellant and co-convict were no longer forthcoming, and the level of indebtedness having risen to over N250 Million, a report was made to the Respondent.
It was their evidence that the cheques given to them were signed.
I note that the statement of Ibrahim Suleiman, a co-convict and who, by the evidence of the Appellant, was responsible for the day to day running of the business, said in his Additional Statement to the Respondent on 31/12/13, Exhibit 42B, that:
”…this our company of Alhaji Musa Suleiman General Enterprises and our business partner Stallion Nigeria Ltd we have the way that we are doing our transaction. For example if Stallion give me goods of N100,000,000 (One Hundred Million) I will issue a cheque of that amount. I will write ten cheques for them of ten millions without putting date but I will sign them all and they will hold it as collateral. They will not put them and after three to four days I will start paying them by issuing another cheques (sic)”
By the admission of his son, who manages the business, though undated cheques are given initially as ”collateral”, these are redeemed after three or four days by cheques properly issued. In consequence, the dating of the cheques issued for payment was not denied in the statement.
The Appellant, having handed over the matter of dating the cheques to his son, who by his admission issued proper cheques in payment, cannot be heard to contend otherwise, for, as held in the case Adeleke v State (2013) 6 NWLR Part 1381 Page 556 at 584 Para B-D, per Peter-Odili JSC, the general rule that the evidence of a co-accused is not admissible against other accused persons is not without exception, for ?where there is a link or nexus from the contents of the statement a co-accused or even his extra judicial statement with a strong connection from other independent evidence then the exception is accepted as making that general rule.. give way for the reality on ground.
As rightly submitted by Respondent’s Counsel, while the legal burden of proof lay on the Respondent to prove the allegations against the Appellant, the evidential burden rests on the party who asserts the affirmative.
The Supreme Court on this principle, held, in the case of Ikaria v State (2014) I NWLR Part 1389 Page 639 at 654-655 Para 655 Para H-A per M.D. Muhammad JSC, that:
”The burden of proving the guilt of an accused person beyond reasonable doubt is always on the prosecution. The burden never shifts being the ultimate burden. Admittedly, evidential burden in criminal cases, being the burden of introducing, adducing or producing evidence on any particular issue at the trial Court could be placed on either the prosecution or the accused depending on the issue and, where the burden is not discharged the issue can be resolved against the party.”
I thus have no reason to fault the decision of the lower Court that the arrangement with regard to the dating and presenting of cheques, as alleged by the Appellant, was not proved by the Appellant on whom the evidential burden lay.
It is the prerogative of the trial Judge who sees and listens to witnesses, to choose which to believe and ascribe probative value to. It is not the place of the appellate Court to evaluate evidence which has already been evaluated by the trial Court and which evaluation has not been shown to be perverse.
The duty of the trial judge, I hold, is to receive all relevant evidence. That is perception. The next duty is to weigh the evidence in the con of the surrounding circumstances of the case. That is evaluation. A finding of fact involves both perception and evaluation. Evaluation of relevant evidence before the trial Court and the ascription of probative value to such evidence are the primary functions of the trial Court.
This is so, since that Court saw, heard and watched the demeanour of the witnesses when they gave evidence. Consequently, where this is done, the Appeal Court should always be reluctant to differ from the trial judge’s finding. It is only where the trial Court failed to evaluate such evidence properly that an appellate court can re-evaluate evidence, which has not been shown to be so in this case. See – Ogundalu v. Macjob (2015) 8 NWLR Part 1460 Page 96 at 116-117 Para F-A per Rhodes-Vivour JSC; All Progressive Grand Alliance (APGA) v. Al-Makura (2016) 5 NWLR Part 1505 Page 316 at 348 Para E-F; (2016) All FWLR Part 826 Page 471 at 495 Para A-B per Nweze JSC; Abeke v State (2007) 9 NWLR Part 1040 Page 411 at E-F Para per Mukhtar JSC (as he then was).
Indeed, a party who signs a document is bound by the contents thereof and cannot be heard to resile therefrom.
It was held by this Court in the case of Samuel Nwarie V. Daniel Adakwa (2016) LPELR-41600(CA) Page 14 Para B-F, per Abba-Aji JCA, as follows:
It is trite that where a document is voluntarily signed by a person, the contents of such a document are binding on the signatory to it, and generally, no extrinsic evidence will be allowed to add to or reduce therefrom any of such contents. It will amount to injustice to allow such a person to renege from the position he had voluntarily created by signing such a document. The position is that a man must not be allowed to blow hot and cold with reference to the same transaction.”
The Appellant, I hold, is bound by the contents of the cheques voluntarily signed by him and handed over by him to the nominal complainants for goods received. Extrinsic evidence will not be allowed to enable him renege from his commitments under these documents.
The implications of issuing a cheque were given in Abeke v State Supra, at Page 426 Para D-E per Oguntade JSC reading the lead judgment, as follows:
”The issuance of a cheque has certain connotations in law. A cheque issued by a drawer and accepted by the drawee serves two purposes. One is that of documenting the particular transaction. The other is that, it is a medium of payment, the issuance of which has far reaching implications in law.”
The lower Court was accordingly right in holding that the Appellant, having admitted signing the cheques, is bound by the contents of the cheques and cannot be heard to disown them. The lower Court, I further hold, having regard to the evidence before it, was right to convict the Appellant as it did. I accordingly resolve the 1st and 2nd issues for determination against the Appellant.
The 3rd issue for determination is:
Whether the evidence led and circumstance of the case justified the award of the sum of N241,000,000.00 made by the lower court in favour of the nominal complainant.
On the third issue, the learned Counsel to the Appellant submitted that the sum awarded in favour of the nominal complainant as restitution/compensation is not supported by evidence adduced at the trial Court, as the prosecution failed to establish the actual amount allegedly due to the nominal complainant from the supplies made to the Appellant, as none of the witnesses, particularly PW1 and PW2, who are staff of the nominal complainant, stated the exact amount of the goods covering the delivery notes and release advice tendered by the prosecution.
Learned Counsel submitted that the trial Court descended in to the arena when it sou motu computed the sums contained in Exhibits 1-27 in arriving at the sum awarded to the nominal complainant. He asked the Court to set aside this computation in view of the evidence of DW1 that these complainants in the company of policemen went to his shop and removed goods worth millions of Naira, which evidence was not challenged during cross-examination. This evidence, he said, was corroborated in the statement of PW1 at the EFCC, at page 35 of the record, which was attached to the proof of evidence, and which, though not tendered by the prosecution, can be looked at by the Court. He cited the case ofAkinola vs Unilorin (2005) FWLR (Part 259) 1934 at 1964, Paragraph C-D.
Learned Counsel further contended that, having failed in establishing the actual amount due to the nominal complainants for the supplies made to the Appellants, the Court should set aside the said award.
Learned Respondent’s Counsel submitted, however, that the Appellant who questions the computation made by the lower Court, has not denied owing the nominal complainant nor has he stated what is the actual amount of his indebtedness to the nominal complainant. His complaint is thus merely cosmetic and devoid of substance.
Citing the case of Ekanem vs Akpan (1991) 8 NWLR (Pt. 211) 616 and Adedeji vs National Bank (Nig) Ltd (1989) 1 NWLR (Pt. 96) 212, he submitted that the Court will not aid a party in taking benefit from his wrong doing or make a profit from his wrongful act.
He further contended that, the transaction documented by means of 21 cheques were found by the lower Court to be proved and there was evidence before the lower Court that only N20,000,000.00 (Twenty Million Naira) out of the total amount covered by those cheques has been paid by the Appellant and his co-convict, making the decision of the lower Court in subtracting the said amount and ordering the Appellant and his co-convicts to pay the balance of N241,000,000, correct. The said amount, he argued, reflects a dispassionate appraisal of the facts of the case and the applicable law on the issue. He urged the Court to uphold the said decision.
The lower Court, subsequent to the delivery of its judgment on 9/2/17, in a Ruling delivered on 28/2/17 at the instance of the prosecution, pursuant to the provisions of Section 319 of the Administration of Criminal Justice Act 2015 (ACJA) and Section 78 of the Penal Code, ordered the convicts to pay the sum of N241,000,000 (Two Hundred and Forty-One Million Naira) to the nominal complainants as ”restitution/compensation’.
The Court, in so ordering, held as follows:
the evidence led in this case and based on which the convicts were convicted clearly establish that the nominal complainants supplied rice within the month of August 2013 to the convicts for which they issued cheques in various amounts as payments for the consignments. The evidence also shows that 27 of these cheques in the sum of N261,000,000.00 (Two Hundred and Sixty-One Million Naira) only were returned unpaid. The total sum of these 21 cheques is 261 Million.
Learned Counsel for the convicts successfully established that the convicts on 28/08/13 made two payments to the nominal complainants in the sum of N10 Million each. This is proved by the entries in Exhibit 35 the Stanbic IBTC Statement of Account of the 3rd convict against the said date. I think this is the amount admitted by the PW3 during cross examination. Apart from this there is no evidence to establish the claims of the convicts in their extra judicial statements and oral evidence to the effect that they made both cash payments and bank transfers to the nominal complainants. It is not enough, having regard to the evidence established by the cheques Exhibit 1 – 16 and 21 – 31, to simply assert that they paid various sums of money. Witnesses or documents that proved the transaction or in the case of transfer, bank tellers are essential to establish such payments. None has been produced by the convicts. I therefore, after deducting the sum of N20,000,000.00 from the total sum of N261 Million, find that the prosecution has established by sufficient evidence, on preponderance of evidence, that the nominal complainants are entitled to restitution in the sum of N241,000,000.00 (Two Hundred and Forty-One Million Naira) only. I so hold.
The statutes relied upon by the lower Court and which allow for payment of compensation, are the following:
Section 319 of the Administration of Criminal Justice Act 2015 which provides as follows:
319. (1) A Court may, within the proceedings or while passing judgment, order the defendant or convict to pay a sum of money:
(a) as compensation to any person injured by the offence, irrespective of any other fine or other punishment that may be imposed or that is imposed on the defendant or convict, where substantial compensation is in the opinion of the Court recoverable by civil suit;
(b) in compensating a bona fide purchaser for value without notice of the defect of the title in any property in respect of which the offence was committed and has been compelled to give it up; and
(c) in defraying expenses incurred on medical treatment of a victim injured by the convict in connection with the offence.
(2) Where the fine referred to in Subsection (1) of this section is imposed in a case which is subject to appeal, no payment additional to the fine shall be made before the period allowed for presenting the appeal has elapsed or, where an appeal is presented, before the decision on the appeal.
(3) Order for cost or compensation may be made under this section irrespective of the fact that no fine has been imposed on the defendant in the judgment.
Section 78 of the Penal Code, provides as follows:
“Any person who is convicted of an offence under the Penal Code may be adjudged to make compensation to any person injured by his offence and such compensation may be either in addition to or in substitution for any other punishment.”
(a) The offence for which the accused was charged is within the jurisdiction of the Court.
(b) The accused must have been convicted of the said offence.
(c) There must be evidence before the Court which evidence must be such that, in the opinion of the Court, would be capable of making the amount of compensation to be awarded recoverable by Civil Suit.
The Court sated at page 460 paragraph B that the provisions of Section 78 of Penal Code and 365 (1) of the CPC:
Section 365 of the Criminal Procedure Code of Northern Nigeria, also relied upon by the lower Court, provides as follows:
365. (1) Whenever under any law in force for the time being a criminal Court imposes a fine, the Court may, when passing judgment, order that in addition to a fine, a convicted person shall pay a sum-
(a) in defraying expenses properly incurred in the prosecution;
(b) in compensation in whole or in part for the injury caused by the offence committed, where substantial compensation is in the opinion of the Court recoverable by civil suit;
(c) in compensating an innocent purchaser of any property in respect of which the offence was committed who has been compelled to give it up;
(d) in defraying expenses incurred in medical treatment of any person injured by the accused in connection with the offence.
In the instant case, the Appellant, in his evidence before the Court alleged that the nominal complainants told him that they went to his store on 20/8/13, with policemen ?and removed goods worth about N17 Million. When I took inventory I realized that they removed goods worth more than N40 Million.”
He continued in evidence:
”It is not true that the nominal complainant is being owed more than N300 Million by me. There’s the over N40 Million goods removed from my shop and there’s also the N20 Million transfer I made to them which has not been reflected in the charge.”
Under cross-examination, he restated:
”I said when the incident in this case occurred my son 2nd accused travelled and we could not find him.
At that time, I was in the charge of the keys to the shop but at a time I was locked up by the Police and nominal complainant collected the keys from the Police and took goods from the shop. I did not say this to EFCC because I was never asked.”
There thus appears to be some contention with regard to the actual amount owing.
Learned Counsel to the Appellant has referred me to the statement made to the Respondent, contained at Page 35 of the Record, and which, I note, was tendered by the Respondent as Exhibit 45C.
It has been held severally that a Court can make reference to the case file before it and make use of any document and relevant evidence. See Fumudoh v. Aboro (1991) 9 NWLR Part 214 Page 210 at 229, Para E, per Tobi JCA (as he then was); Onagoruwa v. Adeniji (1993) 5 NWLR Part 293 Page 317 at 331, Para G-H, by the same learned jurist.
This is moreso, when the actual statement was tendered in the Court by the prosecution.
The statement referred to by the Appellant is of one ‘Tithesh Konato’ at Page 35 of the Record, who, I note, is PW1. He is stated to be Indian and a Business Development Manager.
The statement is as follows:
”In addition to my earlier statement dated 18/9/2013 I wish to further state that a total of 1234 bags of 50 kg and 279 bags of 25 kg rice valued at N12,970,900 (Twelve Million Nine Hundred Seventy Thousand Nine Hundred Naira) was retrieved from Alh Musa Suleiman?s warehouse. The earlier total outstanding of N290,000,000 was reduced to N277,029,100 when the above value of goods retrieved was deducted.”
While there is no dispute with regard to the power of the Court to order compensation/restitution; in awarding compensation under the statutes above, the Courts must, however, be certain as to the exact amount owing, for which compensation should be paid.
It was held in the case of Martins v COP (2013) 4 NWLR Part 1343 Page 25 at 43 Para C per Muntaka-Coomassie JSC that the provisions of Section 78 of the Penal Code and 365(1) of the CPC, which, I hold applies similarly to Section 319 of the ACJA:
”… do not give room to any criminal Court to arbitrarily award compensation to any victim of an offence, when there is no sufficient evidence to such amount of compensation.”
In the instant case, no mention was made by the lower Court in its judgment of the evidence of the Appellant with regard to the goods allegedly retrieved from the Appellant’s shop in part amortization of the money owed.
Certainly, if the value of these goods is subtracted from the amount allegedly owing, the amount outstanding would be undoubtedly lower than the sum said to be owing.
It was therefore unsafe, I hold, for the lower Court, in the absence of proof of the exact amount outstanding, to suo motu take upon itself the task of reconciling these figures.
I thus do agree with the Respondent that the evidence led and circumstance of this case did not justify the award of the sum of N241,000,000.00 made by the lower Court in favour of the nominal complainant as compensation/restitution. I, in consequence, resolve the 3rd issue for determination in favour of the Appellant.
In consequence, this appeal succeeds in part.
While I affirm the conviction and sentence of the Appellant by the lower Court, I set aside the order of compensation of N241,000,000.00 (Two Hundred and Forty-One Million) ordered to be paid by the Appellant to the nominal complainant.
UWANI MUSA ABBA AJI, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Oludotun A. Adefope-Okojie, JCA.
I agree with the reasoning and conclusions that the appeal succeeds in part. The conviction and sentence of the Appellant is affirmed, the compensation of N241,000,000.00 (Two Hundred and Forty-One Million Naira) ordered by the lower Court to be paid to the Nominal Complainant is hereby set aside.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the draft judgment of my learned brother OLUDOTUN ADEBOLA ADEFOPE-OKOJIE JCA. I agree.
Appearances
Abdulaziz IbrahimFor Appellant
AND
Benjamin ManjiFor Respondent
