OYELERE v. FRN
(2020)LCN/15398(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Tuesday, October 20, 2020
CA/AK/212C/2018
RATIO
EVIDENCE: DETERMINING WHEN A PIECE OF EVIDENCE IS CONTRADICTORY
For a statement or evidence to be contradictory, it must be a direct and clear opposite of what was stated or given. Pieces of evidence contradicts one another when they are inconsistent. A discrepancy may occur when a piece of evidence contains a little more than what the other says or contains a minor difference in detail. SeeJimmy V. State (2013) LPELR 20333 (SC), Uche V. State (2018) LPELR 43715. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ISSUANCE OF DISHONOURED CHEQUE
The Appellant along with the 2nd Defendant, Royal Lere Ventures Nigeria limited, at the trial Court were charged for the offence of issuance of Dud cheque contrary to Section 1 (1) of the Dishonoured Cheque (Offences) Act, D11, Laws of the Federation of Nigeria, 2004. Section 1 (1) of the Dishonoured Cheque (Offences) Act, provides thus:
“1. Any person who-
(a) Obtains or induces the delivery of anything being stolen either to himself or to any other person, or
(b) Obtains credit for himself or for 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 fine.
(ii) in the case of a body corporate, be sentenced to a fine of not less than N5000.
While Section 2 provides that:
2. Where any offence under this act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the party of any director, manager, secretary or other similar officers, servant or agent of the body corporate (or any person purporting to act in any such capacity), he as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.
To establish the offence, the prosecution must prove the following elements; that the Appellant obtained credit by himself, that the cheque was presented within 3 months of the date thereon; and that on presentation, the cheque was dishonoured on the grounds that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn. PER RIDWAN MAIWADA ABDULLAHI, J.C.A.
Before Our Lordships:
Oyebisi Folayemi Omoleye Justice of the Court of Appeal
Ridwan Maiwada Abdullahi Justice of the Court of Appeal
Patricia Ajuma Mahmoud Justice of the Court of Appeal
Between
ALHAJI SULEIMAN ADEBAYO OYELERE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RIDWAN MAIWADA ABDULLAHI, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of S. A. Bola, J. of the Akure Judicial Division in charge No. AK/35C/2017 delivered on 21st May, 2018. The Appellant and the 2nd Defendant, Royal Lere Ventures Nigeria Limited at the trial Court were charged with the offence of issuing a Dud cheque contrary to Section 1 (1) of the Dishonoured Cheques (offences) Act Cap D11, Laws of the Federation of Nigeria, 2004.
BRIEF STATEMENT OF THE CASE
Upon arraignment, the Defendants pleaded not guilty to the charge. The prosecution called a total of three (3) witnesses and tendered some documents, while the Appellant called two (2) witnesses. The case for the prosecution was that the Appellant, in conjunction with his co-defendant, Royal Lere Ventures Ltd, were convicted by Honourable Justice S. A. Bola of State High Court 6, Akure, on the 21st day of May, 2018 for the offence of issuing a dishonoured Union Bank cheque to First City Monument Bank in settlement of their financial obligation to the bank. The offence was investigated and charged to Court by the Economic and Financial Crimes Commission pursuant to information filed under Section 1(1)(b) of the Dishonoured Cheques (Offences) Act, Cap D11, Laws of the Federation of Nigeria, 2004 and punishable under Section 1(1)(b)(i) of the same Act.
The Defendants issued Exhibit “B” dated, 24/5/2016, to Royal Lere Ventures Ltd/FCMB drawable on Union Bank Plc Account No. 0038929042, to the nominal complainant in this case, in settlement or purported settlement of an enforceable contract entered into between them. The said Exhibit “B”, when presented within three months, according to Exhibit “C”, before the Court below, for payment on 01/06/2016, was returned unpaid the same day and date, Account Not Funded. See INWD CHQ 00090008 IFO ROYAL CARE VENTURES NIG LTD, See also CLG CHQ 00090008 RTD. On the same day and date, the sums of N500, CHRGS ON RTP CHQ 90008 and VAT ON RTD CHEQ 90008 of N250 were debited against Union Bank Plc Account No. 0038929042 in respect of Exhibit “B”.
The PW1 and 2 insisted that Exhibit “B” was duly presented electronically but was returned unpaid and went ahead to give evidence of the above transactions. PW3 equally gave evidence to the effect that the Exhibit “B” was presented at Union Bank but was returned unpaid because the account was not funded.
The Appellant under cross-examination, owned up that he was the Manager and Director, and finally that he is the CEO and Managing Director of the 2nd Defendant, Royal Lere Ventures Ltd and that he is a major shareholder of the firm with 4million shares. He admitted that they gave post-dated cheque in favour of Royal Lere Ventures Ltd/FCMB and that they gave 9 post-dated cheques which include “Exhibit ‘B’”.
He further said that they have transaction with FCMB and that they enjoy facilities and can be indebted to the bank and that the 2nd Defendant was enjoying facilities with the FCMB when the cheque was presented and that they were not indebted to the bank when the cheque was presented as at 1/6/2016.
All payments were supposed to go through his account at FCMB, according to the offer from the proceed of sale. It is from the entries into the account that FCMB recovers the loan repayments. Exhibit “B” is payable into Royal Lere’s account at FCMB. It is not meant for settlement of financial indebtedness with FCMB. Application for loan was signed by the Appellant alone.
The Appellant admitted signing the cheque as manager and principal signatory to the 2nd Defendant.
At the end of the trial, the learned trial Judge convicted the Appellant and sentenced him to two years imprisonment while the 2nd Defendant was convicted and sentenced to a fine of N100,000.00 respectively.
On 11th June, 2018, the Appellant filed a Notice of Appeal containing five (5) grounds of Appeal before this Court, wherein he prayed this Court for:
a. An order allowing the Appeal in its entirety.
b. An order setting aside the conviction and sentence imposed on the Appellant and entering an order of discharge and acquittal.
Thereafter, the parties through their respective counsel filed and exchanged their briefs of argument in line with the rules governing the hearing of criminal appeals in this Court. The appeal was heard on 22nd July, 2020.
During the hearing of the appeal, learned counsel for the Appellant, Duro Adonis, Esq. adopted the Appellant’s brief of argument filed on 18th March, 2019 but deemed properly filed on 19th June, 2019, as representing his arguments for the appeal. He urged the Court to allow the appeal and discharge and acquit the Appellant. On the other hand, learned counsel for the Respondent, S.M.H Ibekwute, Esq. adopted the Respondent’s brief of argument filed on 2nd December, 2019, but deemed properly filed on 22nd July, 2020, as his reactions against the appeal. He urged the Court to dismiss the appeal and uphold the lower Court judgment.
ISSUES FOR DETERMINATION
In the Appellant’s brief of argument, he nominated two (2) issues for determination to wit:
1. Whether the trial Court in considering the information filed against the Appellant and the evidence before it, the prosecution has established her case beyond reasonable doubt against the Appellant.
2. Whether the Appellant can be convicted and sentenced based on the information upon which the Appellant was prosecuted.
The learned counsel for the Respondent, in its brief of argument, crafted a sole issue for determination viz:
“Whether the learned trial Court was right in convicting and sentencing the Appellant on the ground that the prosecution had proved its case beyond reasonable doubt in the circumstance of this case.”
A look at the two sets of issues shows that they are identical in substance. The Respondent’s sole issue can be subsumed under the Appellant’s issue one. For this, the appeal shall be decided on the issues formulated by the Appellant.
ARGUMENTS OF ISSUES
The Appellant, in his brief of argument, argued his two formulated issues together. In arguing the two issues, learned counsel for the Appellant submitted that the prosecution has the duty of proving the guilt of an accused person beyond reasonable doubt before any Court can convict the accused person and that the standard is static and never shifts. He cited the cases of Kalu V. F.R.N (2016) All FWLR (pt. 842) 1694, Goni V. State (2016) All FWLR (pt. 817) 636, Amada V. State (2010) 2 NWLR (pt. 1177) 447 for the view.
Learned counsel submitted that the Appellant and the 2nd Defendant were charged for the offence of issuance of Dud cheque to First City Monument Bank, which cheque was dishonoured for lack of sufficient fund in the account contrary to Section 1 of the Dishonoured Cheques (Offences) Act, Cap D11, Laws of the Federation of Nigeria 2004.
Counsel contended that in proving the offence, the prosecution must establish that a cheque was issued in favour of a third party, and the third party presented the cheque but it was dishonoured due to lack of fund. That from the face of Exhibit B, the cheque was issued in favour of the 2nd Defendant to be deposited in its account with FCMB, but was never issued in favour of the First City Monument Bank and the prosecution did not establish that the cheque was issued in favour of FCMB. He referred to the testimony of PW2.
Learned counsel argued that, the prosecution has not discharged the onus placed on him to prove his case beyond reasonable doubt, and the Court should not be moved by sentiment and speculation. He cited Abeke V. State (2007) All FWLR (pt. 366) 644 and urged the Court to hold that Exhibit B was never presented to Union Bank Plc.
Learned counsel reasoned that there is contradiction and conflict in the testimonies of PW1 and PW3 and that the testimonies were speculative and assumptive as to the presentation of Exhibit B. That the witnesses were unable to proof the means and mode by which Exhibit B was presented to Union Bank for clearing, this contradiction, according to counsel, create doubt and should be resolved in favour of the Appellant.
Counsel argued that the 2nd Defendant is a distinct legal personality which will be liable for its action. He cited Habib (Nig) Bank Ltd V. Ochete (2001) 3 NWLR (pt. 699) 114 for the view. That since the Appellant and the 2nd Defendant enjoyed separate legal entities, the fact that the Appellant signed Exhibit B, on behalf of the 2nd Defendant does not make him liable for the act of his principal because, said counsel, Exhibit B and Exhibit C are the cheque and statement of account of the 2nd Defendant and not that of the Appellant. That there is no evidence before the trial Court in proving the elements of the offence against the Appellant to warrant his conviction and sentence. That it is not the duty of the trial Court to speculate on the case before it, when the prosecution has failed to discharge the burden placed on him. He cited Okejere V. State (2017) All FWLR (pt. 866) 386 and urged the Court to so hold and resolve the issues in favour of the Appellant, allow the appeal and to also discharge and acquit the Appellant.
Learned counsel for the Respondent submitted that to constitute the offence of issuance of Dud cheque, the prosecution must prove that: the Appellant obtained credit for himself, that the cheque was presented within three months of the date thereon, and that on presentation, the cheque was dishonoured on the ground that there was no funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn. He cited Abeke V. State (2007) 9 NWLR (pt. 1040) 411, Alhaji Musa Suleiman V. F.R.N (2018) LPELR 46667 (CA) and Woolmington V. DPP (1935) AC 462.
Counsel said, the argument of the Appellant that Exhibit B was issued in favour of his co-defendant is not tenable in view of the decision of Abeke V. State (supra). That Section 1 (1)(a) & (b) of the Dishonoured Cheque Act neither prescribed procedure that presentation of cheque should be nor any particular form that evidence of presentation of cheque must be. That Exhibit C clearly shows the date of the presentation as 1/6/2016.
On the arguments of the learned Counsel for the Appellant, that there was contradiction in the evidence of PW1 and PW2, Counsel to the Respondent submitted that there is no contradiction and the learned trial Judge rightly held so in his judgment. That even if there is contradiction, such contradiction must be material and substantial. He cited Salawu V. State (2011) LPELR 9351, Galadima V. State (2017) LPELR 43469 (SC).
Learned counsel quoted the provision of Section 2 of the Dishonoured Cheque Act and submitted that the Appellant having admitted that he is the CEO and Managing Director of the 2nd Defendant (Royal Lere Venture Ltd) and that he is the major shareholder and principal signatory to the 2nd Defendant and that they gave nine (9) postdated cheques including Exhibit B, the Appellant as well as the 2nd Defendant are guilty of the offence committed and punished accordingly in same manner as individual. He cited Rowaye Jubril V. FRN (2018) LPELR 43993 (CA) for the view.
Counsel submitted that the learned trial Judge was right in convicting the Appellant. He urged the Court to resolve the issues in favour of the Respondent, dismiss the appeal and uphold the judgment of the lower Court.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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RESOLUTION
The Appellant along with the 2nd Defendant, Royal Lere Ventures Nigeria limited, at the trial Court were charged for the offence of issuance of Dud cheque contrary to Section 1 (1) of the Dishonoured Cheque (Offences) Act, D11, Laws of the Federation of Nigeria, 2004. Section 1 (1) of the Dishonoured Cheque (Offences) Act, provides thus:
“1. Any person who-
(a) Obtains or induces the delivery of anything being stolen either to himself or to any other person, or
(b) Obtains credit for himself or for 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 fine.
(ii) in the case of a body corporate, be sentenced to a fine of not less than N5000.
While Section 2 provides that:
2. Where any offence under this act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the party of any director, manager, secretary or other similar officers, servant or agent of the body corporate (or any person purporting to act in any such capacity), he as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.
To establish the offence, the prosecution must prove the following elements; that the Appellant obtained credit by himself, that the cheque was presented within 3 months of the date thereon; and that on presentation, the cheque was dishonoured on the grounds that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn.
In proof of its case, the prosecution fielded three witnesses. PW1, a staff of First City Monument Bank, testified that the Appellant approached the bank on behalf of the 2nd Defendant and requested for a loan of Ten million naira (N10,000,000.00) which was approved and disbursed to the 1st Defendant/Appellant, in May, 2012.
That the Appellant thereafter applied for an advancement of the existing Ten million naira (N10,000,000.00) with additional Thirty million naira (N30,000,000.00), making a total of Fourty million naira (N40,000,000.00) loan, which was disbursed in January, 2013 and both facilities expired in April, 2013. That later on behalf of the 2nd Defendant, the Appellant applied for tenure extension which was approved.
The 1st Defendant/Appellant as DW1 testified that he is the Chief Executive Officer (CEO) and the Managing Director of the 2nd Defendant. That he is a major shareholder of the company with four (4) million naira shares and the sole signatory. He further stated that they have transactions with FCMB and they enjoyed facilities and they could be indebted to the bank. That the 2nd Defendant was enjoying facilities with the FCMB from the evidence at hand, it is clear that FCMB granted a loan of N10,000,000.00 (Ten million naira) at the first place and when the said loan is running, the Appellant applied for an advancement of the existing loan of N10,000,000.00 with addition of N30,000,000.00 making loan sum to N40,000,000.00. The Appellant in Exhibit E, stated as follows:
“The total amount our company, Royal Lere Ventures Ltd, received from FCMB was (N40,000,000) Fourty Million Naira only and to my knowledge we have paid up to (N26,000,000) Twenty six million to the account to reduce the loan…”
It is evidently clear that the Appellant engaged in the credit facilities loan upon which the cheque was issued to FCMB. In my view, the Respondent has proved the first element of the offence that the Appellant obtained loan.
On the second element, that is whether the cheque was presented within three months of the date thereon. In proving the second element, the Respondent testified that the cheque in question ‘Exhibit B’ was dated 24/5/2016. The Appellant also testified that Exhibit B was dated 24/5/2016 and that from Exhibit C, the Statement of Account of the Appellant, the cheque was presented on 1/6/2016. I have looked at the cheque leaf, Exhibit B, it was dated 24/5/2016, while Exhibit C, is the Statement of Account of the Appellant from the Union Bank which was presented on 1/6/2016 as can be seen from the Exhibit. It is not in doubt from the evidence before the trial Court, the Appellant issued Exhibit B, the cheque in question which bear the amount of N5,802,563.71. The cheque was presented within three months of its being issued. It is my view that the Respondent had proved the second ingredient of the offence charged. With regards to the third ingredient, as to whether on presentation of the cheque, the cheque was dishonoured on the grounds that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn. It is on record and well established that Exhibit B, the cheque in question was drawn in favour of the First City Monument Bank. FCMB presented the cheque to the paying Bank, that is Union Bank on 1/6/2016 and was dishonoured due to insufficient funds in the Appellant’s Account when the cheque was presented. PW1 testified that the cheque was returned because the corporate account with the Union Bank was not funded and the 2nd Defendant was aware of it. PW2 states that on Exhibit C there was a transaction on 1/6/2016 and the amount is N5,802,563.71 which is on cheque 00090008 in favour of Royal Lere Venture Limited. That the transaction states that cheque 00090008 was returned as account not funded. That before the issuance of the cheque for payment, the balance on the account was N2,931.15 which means that the account had no sufficient balance to settle the cheque. The Appellant as DW1 stated that the cheque was not issued to FCMB but issued in favour of Royal Lere Venture Ltd/FCMB. He reiterated that he signed the cheque which was issued by them at the point they were given a loan.
A perusal of the entire record especially the admissible evidence before the Court shows that the Appellant had presented the cheque in question on 1/6/2016 as can be seen from Exhibit C, a documentary proof of the Appellant’s transaction. The cheque from the evidence was received by the First City Monument Bank and eventually sent to Union Bank and the cheque went to the clearing house but was dishonoured and returned account not funded.
The evidence of the prosecution witnesses and indeed that of the Appellant’s shows that the cheque was presented and returned unpaid by the Union Bank due to lack of fund in the Appellant’s account with the bank when the cheque was presented.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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The Appellant contended that the 2nd Defendant is a distinct legal entity and the fact that he signed Exhibit B, does not make him liable. I disagree with this line of argument, the Appellant engaged in the credit facilities/loan transaction for 2nd Defendant upon which the cheque was signed and issued. He is the Managing Director and Chief Executive Officer and a signatory to the account of the 2nd Defendant. The Appellant obtained credits/loan and when the cheque was presented for payment within three months of the date of the cheque, the cheque was dishonoured on the ground that the account was not funded. No doubt about that, the Appellant was guilty of an offence of issuance of a Dud cheque. See Section 1(1), (2) and (3) of the Dishonoured Cheque (Offences) Act, Abeke V. State (2007) LPELR 31 (SC), Rivers State Microfinance Agency V. Isokariari & Anor (2018) LPELR 44863 (CA).
The Appellant argued that there were contradictions in the evidence of the prosecution witnesses. For a statement or evidence to be contradictory, it must be a direct and clear opposite of what was stated or given. Pieces of evidence contradicts one another when they are inconsistent. A discrepancy may occur when a piece of evidence contains a little more than what the other says or contains a minor difference in detail. SeeJimmy V. State (2013) LPELR 20333 (SC), Uche V. State (2018) LPELR 43715.
I have perused the evidence of the prosecution witnesses on record transmitted to this Court, I find no contradictions in the prosecution evidence. It is my firm view that there are no contradictions at all in the prosecution witnesses’ testimonies and I so hold.
The two issues which were argued together by the Appellant, are resolved against the Appellant.
Having resolved the issue against the Appellant, I find that this appeal has no merit. It is accordingly dismissed. The decision of the trial Court of 21st may, 2018 wherein it convicted the Appellant and sentenced him to two years imprisonment is hereby affirmed.
OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading the draft of the leading judgment, in this appeal, just delivered by my learned Brother, Ridwan M. Abdullahi, JCA.
I am at one with His Lordship’s line of reasoning and the conclusion reached by him in the said leading judgment that the appeal is unmeritorious. I equally dismiss the appeal and abide by the consequential orders made therein.
PATRICIA AJUMA MAHMOUD, J.C.A.: I agree wholly with the judgment just delivered by my learned brother, Ridwan M. Abdullahi, JCA, that this appeal being unmeritorious should be dismissed. I dismiss it and affirm the conviction and sentence of the trial lower Court.
Appeal is dismissed.
Appearances:
Duro Adonis, Esq. For Appellant(s)
M. H. Ibekwute Esq., For Respondent(s)
