HADIZA MUSTAPHA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12106(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 31st day of October, 2018
CA/K/523/C/2014
RATIO
CRIMINAL LAW: ELEMENTS FOR THE OFFENCE OF FORGERY
“The ingredients or essential elements of the offence of forgery which must be established by cogent and reliable evidence in order to ground conviction are:
(a) That there is a document in writing.
(b) That the document or writing is forged
(c) That the forgery is by the accused person.
(d) That the accused person knows that the document or writing is false.
(e) That the accused intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See the case of Alake v. The State (1991) 7 NWLR (Pt. 205) P. 95.” PER IBRAHIM SHATA BDLIYA, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“A confessional statement (such as Exhibits E, G1 and G2) is admissible if it is direct and positive and relates to the maker’s acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. A voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons is usually accepted as satisfactory evidence on which the Court can convict. See Ogoala v. State (1991) 2 NWLR (Pt. 175) 509. The premium placed on confessional statement is very weighty. The justification is not farfetched. It is because an accused person can be convicted solely on his confessional statement, if made voluntarily and it is fully consistent and probable. This requirement, although conclusive, it is however desirable to have outside the confession itself, some evidence, be it slight, of circumstances which make it probable that the confession was true. The general position of the law as firmly established is that the Court can convict an accused person based on his confessional statement and such confession does not need to be corroborated if it meets the requirements of the law. Hassan v. State (2001) 6 NWLR (Pt. 709) 286; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Amusa v. State (2002) 2 NWLR (Pt. 750) 73; Ntaha v. State (1972) 4 SC 1; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Saidu v. State (1982) 3 SC 41.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
HADIZA MUSTAPHA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
The appellant (Hadiza Mustapha) and one other person were charged and arraigned before the Kano State High Court of Justice (The lower Court), with leave of Court, for committing the offences of conspiracy, criminal breach of trust, and use of forged documents under Sections 97, 315, 363 and 366 of the Penal Code of Kano State. The prosecution called six (6) witnesses and tendered documents which were admitted in evidence as exhibits. The appellant did not give evidence. She did not call witness. She rested her defence on the case of the prosecution. The other accused person gave evidence in his defence, and called two (2) witnesses. Written addresses were filed by learned counsel to the then accused persons. The learned Judge of the lower Court, in a judgment delivered on the 31st of March, 2014, convicted and sentenced the appellant for committing the offences under Sections 315, 363 and 366 of the Penal Code. Dissatisfied with the conviction and sentence, she filed notice of appeal to this Court.
The appellant’s brief of argument was filed out of time, which was deemed duly filed on the 24th of February, 2017. On page 3 thereof, 2 issues for determination were culled out of the grounds of appeal. The respondent did not file brief of argument. There was no representation for the respondent at the hearing of the appeal on the 2nd of October, 2018, though hearing notice was issued and served. Learned counsel to the appellant argued the appeal and urged this Court to allow same, set aside the judgment of the lower Court, discharge and acquit the appellant, accordingly. The issues for determination on page 3 of the appellant?s brief of argument are hereunder reframed thus:
ISSUE 1
Whether, having regard to the totality of the evidence adduced by the prosecution, the learned Judge of the lower Court rightly convicted and sentenced the appellant for committing the offences of criminal breach of trust, forgery and Use of forged documents under Sections 315, 365 and 366 of the Penal Code, Kano State? (Grounds 1 and 2).
ISSUE 2
Whether the learned Judge of the lower Court was right in Ordering payment of compensation totaling to the sum of Thirteen, Million Naira (N13,000,000.00) to the Mainstream Bank Limited under Section 78 of the Penal Code, Kano State? (Ground 3)
RESOLUTION OF ISSUES
ISSUE ONE (1)
Salisu Sule Esq., referred to Exhibits E, G1 and G2 (the alleged confessional statements made by the appellant) and contended that same were wrongfully admitted in evidence in the absence of learned counsel to the appellant, and that the said confessional statements were not shown to the appellant before they were admitted in evidence. Learned counsel referred to the proceedings of the lower Court of the 15th of April 2013, recorded on pages 90 – 91 of the printed record of appeal to buttress the submissions supra. It is learned counsel’s further contention that the statements were not read out to the appellant when same were admitted in evidence in the absence of her counsel. The proceeding referred to supra have been cited and relied on to reinforce the submissions supra.
Submitting further, learned counsel did contend that Exhibits G1 and G2 which were tendered through PW.4 were irregularly admitted as could be seen on page 105 of the printed record of appeal. That a confessional statement allegedly made by an accused person is admissible in evidence if same had been shown to have been made voluntarily. Counsel maintained that since Exhibits E, G1 and G2 were not shown nor read out to the appellant at the time they were tendered and admitted in evidence as exhibits, the learned Judge of the lower Court ought to have tested the authenticity of the statements as enunciated in the cases of Major Amachree v. Nigerian Army (2003) 3 NWLR (Pt. 807) P. 256 and Bature v. State (1994) 1 NWLR (Pt. 320) P. 267. Counsel submitted further that the learned Judge of the lower Court erred in law when he ascribed probative value to Exhibits E, G1 and G2, which were wrongly admitted in evidence in the absence of appellant’s counsel, nor were same read out to the appellant to confirm if the statements were voluntarily made to PW1 and PW3.
On Exhibits B1, B2 and B3, learned counsel did contend that the learned Judge of the lower Court erred in law when she admitted same in evidence to prove the commission of the offences of forgery, use of Forged documents and criminal breach of trust by the appellant. That the lower Court was wrong in relying on Exhibits B1 and B2, which were used to withdraw various sums of money from the Account of Alh. Manir Adam, having not called him to testify as a witness. That where someone’s signature is alleged to have been forged, that person is a vital and material witness whose evidence is material to the prosecution’s case. That the failure of Alh. Manir Adamu, whose signature was alleged to have been forged to testify, is fatal to the case of the prosecution. The principles of law espoused in the cases of Alake v. State (1993) 9 NWLR (Pt. 265) page 260; Rivs v. Kuree 7 WACA 175 and Wambai v. Kano N. A. (1965) NWLR P. 15, were cited and relied on to buttress the submissions supra.
Concluding, learned counsel submitted that Exhibits B1, B2 and B3, having been wrongly admitted in evidence coupled with the failure to have called Alh. Manir Adamu, whose signature was allegedly forged, as a witness, the prosecution did not prove the commission of the offences of forgery, use of forged documents and criminal breach of trust under Sections 315, 363 and 366 of the Penal Code beyond reasonable doubt as required by law. The principles of law propounded in the cases of Udosen v. State (2007) 29 NSCQR P. 646 and Igabele II v. The State (2006) 25 NSCQR P. 321 were cited and relied on to reinforce the submissions supra. This Court has therefore been urged to resolve issue 1 in favour of the appellant.
The appellant was charged and convicted for committing the offences of forgery, use of forged documents and criminal breach of trust under Sections 315, 363 and 366 of the Penal Code. Did the prosecution adduce credible evidence proving the commission of the aforesaid offences beyond reasonable doubt as required by the provisions of Section 135 (1) of the Evidence Act, 2011? The learned Judge of the lower Court convicted and sentenced the appellant for committing an offence under Section 315 of the Penal Code, Kano State. Section 315 of the Penal Code provides thus:
– 315. Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.”
The ingredients or essential elements of the offence which must be established by cogent evidence for committing an offence under Section 315 of the Penal Code are these:
(a) That the accused was either a public servant or a banker or a merchant or a factor or a broker or a legal practitioner or an agent.
(b) That he was in such capacity entrusted with the property in question or with dominion over it.
(c) That he committed criminal breach of trust in respect of it.
In arriving at the decision that the appellant committed the offence of Criminal breach of trust by a public servant or a banker under Section 315 of the Penal Code, the learned Judge of the lower Court relied on the evidence of PW1, PW2, PW3, PW4, PW5 and PW6 as well as Exhibits ‘A’, ‘B’, ‘G1’, ‘G2’, ‘H’. The evidence of PW1 have been recorded on pages 90 – 96 of the printed record of appeal. The witness was crossed-examined by learned counsel to the appellant which have been recorded on pages 125 to 127 of the record of appeal. The evidence of PW2, and his cross-examination by the learned counsel to the appellant were recorded on pages 96 to 98 and 127, respectively. PW3, gave evidence as the investigator of the case against the appellant. Exhibits ‘E’ and ‘F’ were admitted through him. The witness was cross-examined as recorded on pages 130 to 132 of the record of appeal. The evidence of PW4 have been recorded on pages 104 to 108 of the record. PW5 gave evidence as recorded on pages 108 to 110 of the record. He was cross-examined as recorded on pages 110 ? 117.
The 6th witness for the prosecution testified which was recorded on pages 111 – 117, whereas the cross-examination by learned counsel to the appellant was recorded on pages 119 to 120 of the record.
The learned Judge of the lower Court relied on the evidence of the witnesses that testified on behalf of the prosecution, especially on Exhibits E1, G1 and G2 which is a confessional statement. The contents of Exhibit E, are reproduced as follows:
“I Hadiza went to ask Alhaji Munir Adamu to open an account with my branch. He obliged and opened a fixed deposit with N100,000,000.00 (One Hundred Million Naira Only).
In a breach of trust I withdrew from the account about three or four times and diverted to my personal use. This was done over a period of about ten months. The last bit of his balance that he wanted to use could not be withdrawn for him because by then there was only four million in the account sixteen million was withdrawn by me illegally. When he complained to the Manager he swung into action because he believed something must have gone wrong so where did I put the money.
Honestly, I withdrew the money gradually and in piecemeal. And I have been spending it as I withdrew. Now I cannot account for the money that I withdrew fraudulently. I sold my car and added something to make One Million Five Hundred Thousand Naira as repayment. So there is still an outstanding balance of Fourteen Million Five Hundred Thousand Naira only.
I intended to repay this money by securing deposits for which I expect to get commissions to offset. The first withdrawal was Ten million was credited to my son’s account but my colleague Mahmoud Salihi said that account was not reflecting in Lagos Street branch it was in Broad street branch. He now advised we should put it in his wife’s account and I have been instructing him to withdraw in piecemeal to give me for my own use
The learned counsel to the appellant did contend that Exhibits E, G1, G2 were improperly admitted in evidence as same were not shown nor read out to the appellant at the time same were tendered for admission by the lower Court. The assertion made supra has been debunked by the evidence of PW3, who obtained the statement from the appellant. This was how Exhibits ‘E’, ‘G1’ and ‘G2’ were obtained by the witness from the appellant as contained on page 310 of the record of appeal of the lower Court:
“We gave them the petition to read. After going through they volunteered to make a statement to us. We cautioned them individually in writing and they made statements. They went through their statements which they recorded themselves and signed. 1st accused confessed to the crime while the 2nd accused denied.”
On the whole, Exhibits ‘E’, ‘G1’, ‘G2’, ‘B1’, ‘B2’ and ‘B3’ were admitted in evidence without any objection from the appellant nor her counsel. It is to be noted that the witness who tendered the statements made by the appellant was not cross-examined when he was recalled. The findings of the lower Court on the propriety of admitting Exhibits E, G, and G2 cannot be faulted. On page 309 of the printed record of appeal, the learned Judge of the lower Court held that:
‘The above confessional statement of the 1st accused as contained in Exhibit E was tendered and admitted without any objection from her. Also throughout the trial the 1st accused never made any assertion on the said confession nor was the witness through whom it was tendered questioned on it even when he was recalled for cross examination by the 1st accused’s counsel, not a single question was put to him in respect of this damaging piece of evidence coming from the 1st accused herself.”
By the provisions of Section 29(1) of the Evidence Act, 2011, a confessional statement of an accused person, if voluntarily made, is admissible in evidence and the Court can properly rely on same in the determination of the case or matter before it. In as much as the law enjoins a Court of law to act upon a confessional statement for the conviction of an accused person, the veracity of the confession ought to be tested. In other words, the test of veracity thereof has to be judicially determined. Confession of an accused should be tested as to its truth by examining it in the light of the other evidence, to determine:
“(a) whether the facts stated in it are true so far as can be tested;
(b) whether the accused had the opportunity of committing the offence;
(c) whether the accused’s confession was consistent with the facts which have been ascertained and proved;
(d) whether the accused’s confession was possible;
(e) whether there is anything outside it to show that it is true; and
(f) whether it is corroborated.”
On whether the six (6) tests to be applied in determining the weight to be attached to a confessional statement, I am in agreement with the learned Judge of the lower Court when he found and held thus, on pages 311 to 312 of the printed record of appeal; The said Exhibit E is properly received in evidence in this case and in determining the weight to be attached to it I find that it passes the six tests which every confessional statement has to pass before it can be acted upon. The evidence in the case as gathered from the prosecution witnesses and Exhibit A the letter of complaint written by the customer are factors outside the 1st accused’s confession that shows it is true, the confession is corroborated by the said evidence, the relevant statements in it are of facts that are tested as true.
There is overwhelming evidence that the 1st accused had the opportunity to commit the offence since the money was entrusted to her alone, the confession is one that is possible as it is consistent with facts that have been ascertained and proved.
Now even if no other evidence proved the misappropriation of the said sum of Ten Million Naira by the 1st accused, her confession in this case is one that I find enough to ground a conviction.”
A confessional statement (such as Exhibits E, G1 and G2) is admissible if it is direct and positive and relates to the maker’s acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. A voluntary confession of guilt, if fully consistent and probable, and is coupled with a clear proof that a crime has been committed by some persons is usually accepted as satisfactory evidence on which the Court can convict. See Ogoala v. State (1991) 2 NWLR (Pt. 175) 509.
The premium placed on confessional statement is very weighty. The justification is not farfetched. It is because an accused person can be convicted solely on his confessional statement, if made voluntarily and it is fully consistent and probable. This requirement, although conclusive, it is however desirable to have outside the confession itself, some evidence, be it slight, of circumstances which make it probable that the confession was true. The general position of the law as firmly established is that the Court can convict an accused person based on his confessional statement and such confession does not need to be corroborated if it meets the requirements of the law. Hassan v. State (2001) 6 NWLR (Pt. 709) 286; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Amusa v. State (2002) 2 NWLR (Pt. 750) 73; Ntaha v. State (1972) 4 SC 1; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Saidu v. State (1982) 3 SC 41.
In arriving at the decision to convict the appellant for committing the offence of criminal breach of trust under Section 315 of the Penal Code, the learned Judge of the lower Court found and held on pages 309 to 310 of the printed record of appeal as follows:
Now by law there are three ways of proving a crime and the first is by the confessional statement of the accused, then by circumstantial evidence and lastly by evidence of any eye witness. See the case of Igabele v. State (2006) 6 NWLR (Pt. 975) P. 100.
It is said that there is no evidence stronger than a person’s own admission or confession. And where a confessional statement satisfied the condition for its admission and the weight to be attached to it, it is stated as the best and strongest evidence possible, short of any eye witness account. See the case of Oseni v. State (2012) 5 NWLR P. 351.
By Section 29(1) of the Evidence Act, 2011 a confession if voluntary is deemed to be relevant fact against a defendant and may be given in evidence against him. The circumstances in which a confession cannot be admitted in evidence is stated in Section 29(2)(a) & (b) of the Evidence Act, 2011.
And it is where it was obtained by oppression of the person who made it or it was made in consequence of anything done or said which was likely in the circumstance to render such confession unreliable.”
I am in total agreement with the exposition of the principles of law supra that a confessional statement made by an accused person, if voluntarily made, and satisfies the six tests enumerated in the cases of Igba v. State (2018) 6 NWLR (Pt. 1614) P. 44 @ 58, Akpan v. State (1992) 6 NWLR (Pt. 248) P. 435; Idowu v. State (2000) 12 NWLR (Pt. 680) P. 58 and Ikemson v. State (1989) 3 NWLR (Pt. 110) P. 455, is the best evidence that can be relied on to convict an accused person for committing the offence with which he has been charged with, by a Court of law. Aka’ahs, J.S.C re-emphasized the position of the principles of law on confessional statement by an accused person in the case of Igba v. State (2016) 6 NWLR P. 44 @ 58, thus:
“In the judgment of Mshelia JCA, where she stated the correct legal position regarding a conviction based on the appellant’s confession, held that a confessional statement of an accused which if direct, positive and unequivocal occupies the highest authenticity on proof beyond reasonable doubt. In other words, once a confessional statement has been proved to be direct and positive an accused can be convicted on such statement alone without further evidence.”
The learned Judge of the lower Court relied on Exhibit ‘E’ and the corroborative evidence of PW1, PW2, PW3, PW4, PW5 and PW6 in convicting the appellant for committing the offence of criminal breach of trust under Section 315 of the Penal Code. I totally agree with the learned Judge of the lower Court when he relied on Exhibit E and the evidence of PW1, 2, 3, 4, 5 and 6 in convicting and sentencing the appellant for committing the offence of criminal breach of trust under Section 315 of the Penal Code.
The appellant was charged in counts 3, 5 and 7 with committing the offence of forgery under Section 363 and punishable under Section 364 of the Penal Code. Forgery has been defined in Section 363 of the Penal Code thus:
‘363. Whoever makes any false document or part of a document, with intent to cause damage or injury to the public or to any person or to support any claim or title or to cause any person to part with property or to enter into any express or implied contract or with intent to commit fraud or that fraud may be committed, commits forgery; and a false document made wholly or in party by forgery is called a forged document.’
The ingredients or essential elements of the offence of forgery which must be established by cogent and reliable evidence in order to ground conviction are:
(a) That there is a document in writing.
(b) That the document or writing is forged
(c) That the forgery is by the accused person.
(d) That the accused person knows that the document or writing is false.
(e) That the accused intends the forged document to be acted upon to the prejudice of the victim in the belief that it is genuine. See the case of Alake v. The State (1991) 7 NWLR (Pt. 205) P. 95.
The learned Judge of the lower Court relied on Exhibit G1, G3, B2 and B3 in convicting the appellant for committing the offence of forgery under Section 363 of the Penal Code. In Exhibit G2, the appellant confessed to be the originator of Exhibits B, B2 and B3. She stated as follows in Exhibit G2.
All the requests for which the money was collected by me were written by me. Vouchers may not have been written by me but once I gave the written instructions they were raised by the officers concerned
The evidence of PW1, 2, 3, 4, 5 and 6 taken together with Exhibit G2, have established all the ingredients or the essential elements of the offence of forgery under Section 363 of the Penal Code. The conviction and sentencing of the appellant for committing the offence of forgery cannot therefore be faulted.
The appellant was also charged with committing the offence of using as genuine forged document which he knew or has reason to know same was not genuine under Section 366 of the Penal Code. Section 366 of the Penal Code provides as follows:
“Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he had forged such document.”
In order to prove the commission of the offence of using forged documents as genuine knowingly, the following ingredients or elements must be shown to exist.
They are –
(a) That the accused used as genuine a forged document.
(b) That the accused knew or had reason to believe that the document was forged.
(c) That he did so fraudulently or dishonestly.
The learned Judge of the lower Court relied on the evidence of PW1, 2, 3, 4, 5 and 6, Exhibits B1, B2, B3 and G2 in convicting the appellant under Section 366 for committing the offence of using a forged documents which he knew or had reason to know were forged under Section 366 of the Penal Code. On page 318 of the printed record of appeal, the learned Judge found and held thus:
“It is in evidence in the case at hand that the 1st accused not only wrote those letters for the withdrawal of funds but she presented them and had the funds released to her. The evidence of the prosecution witnesses on this is cogent and compelling.”
It is settled principle of law that an accused person can be convicted solely on his confessional statement, if it is direct, positive and unequivocal. The foregoing proposition of the law has been propounded by the Apex Court and this Court in a litany of judicial decisions, for instance in Igba v. State (2018) 6 NWLR (Pt. 1614) P. 44 @ 56, Aka?ahs J.S.C, espoused thus:
“The learned trial Acting Chief Judge convicted the appellant based on his confessional statement and the evidence of PW2. The law allows for an accused to be convicted on his confessional statement alone if same is positive, direct and made voluntarily. See Mohammed v. The State (2007) 11 NWLR (Pt. 1045) 303; Demo Oseni v. The State (2012) 5 NWLR (Pt. 1293) 351.”
Exhibit G2, the confessional statement of the appellant was not challenged by the appellant. It was properly admitted in evidence. The evidence of PW1, 2, 3, 4, 5 and 6, are corroborative and reinforces the contents of Exhibits G2 and B1, B2 and B3. The decision of the learned Judge of the lower Court cannot therefore be faulted.
On the whole, having found and held that the learned Judge of the lower Court rightly convicted the appellant for committing the offences of criminal breach of trust, forgery and using forged documents as genuine knowingly or had reason to know, under Sections 315, 363 and 366 respectively, of the Penal Code, I resolve issue 1 against the appellant.
ISSUE 2
Whether the learned Judge of the lower Court was justified in ordering the payment of N13 Million as compensation to the Mainstream Bank Plc, under Section 78 of the Penal Code.
On this issue Sule Esq., of learned counsel, referred to Chapter xxxi of the Criminal Procedure Code and submitted that the procedure for awarding compensation to any person who incurred injury due to the act of a person convicted in course of committing an offence must be complied with. That what must be complied with have been set out under Section 365 (1)(b) of the Criminal Procedure Code. It is counsel’s contention that the appellant did not benefit from the N10 Million which was kept by another person, not the appellant. Counsel further submitted that no evidence was adduced by the prosecution as to the lost or injury incurred by Mainstream Bank Plc to warrant payment of compensation to it. The principles of law on payment of compensation to a victim of a crime espoused in Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) P. 251 was relied on to buttress the submissions supra. In conclusion, learned counsel did urge that the order to pay compensation to Mainstream Bank Plc is unwarranted, therefore improperly made, such on order be set aside by this Court.
Section 78 of the Penal Code, Kano State, provides thus:
“Any person who is convicted of an offence under this 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.”
Section 365 (1)(a) to (d) of the Criminal Procedure Code, Kano State 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.
By Sub-paragraph 1(b) of the provisions of Section 365 of the Criminal Procedure Code, the trial Court which convicted the appellant must first of all decide if any compensation could be possible in Civil Proceedings. In ordering for compensation to the Mainstream Bank Plc, the learned Judge held on page 326 of the printed record thus:
“In respect of count two, the convict shall reimburse the bank the sum of Ten million naira.
In respect of count nine and ten, the convict shall reimburse the bank the sum of N3 Million Naira.”
In order to be entitled to compensation under Section 78 of the Penal Code, and Section 365(1)(b) of the Criminal Procedure Code, the following must be satisfied by the prosecution.
(i) Ensure that the prosecution leads evidence to establish the injury caused in whole or part;
(ii) Establish that the accused benefited in whole or still partly retains the subject matter of the crime.
(iii) Establish and form an opinion in writing that the substantial compensation can be recoverable through a civil suit.
It is also a requirement for the order of compensation that same must have been sought by the prosecution at the trial, with evidence adduced to warrant the granting of same to the victim of the crime. See Ademola v. Sodipo (1992) 7 NWLR (Pt. 253) P. 251. The prosecution did not proffer evidence to warrant the granting of the order for payment of compensation to the victim of the crime, nor was there any application for same by the Mainstream Bank Plc.
The 3 requirements for making an order of compensation to a victim of a crime, where conviction has been secured by the prosecution, and in the process of conducting same, are that the prosecution incurred losses or costs therefor. In view of the foregoing, I find and hold that the lower Court did not rightly order for the payment of compensation to Mainstream Bank Plc in accordance with the law. The order for payment of N13Million to the Mainstream Bank Plc, was therefore not validly made. Same is hereby set aside. I resolve issue 2 in favour of the appellant. The appeal therefore partially succeeds, only to the extent that the order for payment of N13Million to the Mainstream Bank Plc, is hereby set aside.
For avoidance of doubt, the conviction and sentence of the appellant for committing the offences of criminal breach of trust, forgery and using forged documents under Sections 315, 364 and 366 of the Penal Code, is hereby affirmed.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother IBRAHIM SHATA BDLIYA JCA, in draft form and I agree with my Lord’s reasoned considerations of the two issues in this appeal and the conclusions on both issues. I align myself with the views of my Lord and consequently, I affirm the judgment of the lower Court by which it convicted and sentenced the Appellant for the offences of criminal breach of trust, forgery and using forged documents. I also set aside that part of the judgment of the lower Court wherein it ordered payment of compensation to Mainstream Bank plc.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read in draft the judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA. I agree with him that the appeal succeeds only in part, to wit, that the order for compensation to Mainstream Bank, Plc was wrongly made and hence, set aside, while the conviction and sentence of the Appellant for the offences of criminal breach of trust, forgery and using forged documents contrary to Sections 315, 364 and 366 of the Penal Code respectively is hereby affirmed.
Appearances:
Salisu Sule, Esq. For Appellant(s)
Douglas I. Gift, with him, Nasim SaleleFor Respondent(s)
