UDOFIA v. C.O.P
(2020)LCN/15663(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Monday, August 17, 2020
CA/A/723C/2017
Before Our Lordships:
AdamuJauro Justice of the Court of Appeal
Stephen Jonah Adah Justice of the Court of Appeal
YargataByenchitNimpar Justice of the Court of Appeal
Between
UBONG JOHN UDOFIA APPELANT(S)
And
COMMISSIONER OF POLICE RESPONDENT(S)
RATIO:
EVALUATION OF EVIDENCE IS THE DUTY OF THE COURT
It is basic and an established position of our law that evaluation of evidence is the duty of the trial Court which heard the witnesses and received evidence at the trial. Evaluation entails a thorough appraisal and assessment of evidence that will bring about a logical conclusion on issues of law and fact. STEPHEN JONAH ADAH, J.C.A.
THE EVALUATION OF EVIDENCE IS THE TASK OF THE TRIAL JUDGE
The task of evaluation is that of the trial judge who saw, heard and assessed the witnesses as they testified at the trial and observe witness demeanour. Okoro, JSC, in the case of Ezeani v. FRN (2019) LPELR-46800 held that evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, Adamu v. The State (1991) 4 NWLR (Pt. 187) 530, (1991) LPELR-73 (SC). STEPHEN JONAH ADAH, J.C.A.
THE STRICT COMPLIANCE OF THE STEPS TO BE TAKEN AS PRESRIBED BY THE LAW
Counsel stated that the law is trite, where a law like in Section 3(2) of the Dishonoured Cheques (Offences) Act, prescribes steps to be taken, no other steps other than that prescribed must be followed. He cited the case of Amaechi v. INEC (2008) 10 WRN 1 @ 33-34 Ratio 16. Therefore, the consequence in Law of the prosecution of the Appellant by the Police which is contrary to Section 3(2) of the Dishonoured Cheques Act, is that the Appellant was not prosecuted and his sentence, conviction is null and void arising from an invalid Act. This robs the trial Court of its Jurisdiction on the matter.
THE VEIL OF THE COMPANY CAN BE LIFTED
Counsel stated that it is a settled law that where a company acts and its actions affects the rights of aperson negatively, the veil of the company can be lifted to see and hold those behind the act liable. He relied on the case of Dr. S. Okechukwu v. Corporative and Commercial Bank (Nig.) Plc & Anor. (2012) 52 NSCQR page 68 @ 101 -102. Therefore, the Appellant cannot hide under the principle or cloak of separate legal entity as a defence to absolve him from the crime of issuance of dishonoured cheques he committed against the complainant. He cited the cases of Mohammed v. State (1997) 9 NWLR part 520 page 169 at 223, Bature v. State (2015) 20 WRN page 128 at 152-153 and Isiaka v. State (2012) 4 WRN page 164 at 182. STEPHEN JONAH ADAH, J.C.A.
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal Capital Territory, High Court, sitting in Abuja, delivered on the 12th day of February, 2015; Coram: Jude O. Okeke J. Wherein the Appellant was charged and arraigned on a three (3) counts charge bothering on of the offences of Advanced Fee Fraud and Issuance of 2 Dud Cheques, contrary to Sections 1 (3) of the Advanced Fee Fraud and Other Related Offences Act and Section 1 of the Dishonoured Cheques Act, respectively.
The charges are reproduced hereunder as follows:
Count One:
That you Ubong John Udofia, ‘m’ adult of Guida village Kubwa Abuja on or about 5th May and June 2010 in Garki Abuja within the Abuja Judicial Division with intent to defraud deceitfully collected the sum of N3,642,425.00 (Three Million Six Hundred and Forty-Two Thousand, Four Hundred and Twenty-Five Naira) on the pretense that you got a construction job and that you will pay back the money with 20% interest, however, when you collected the money, you did not execute any construction job but converted same to your use. You thereby committed an offencepunishable under Section 1(3) of the Advance Fraud and other Related Offences Act 2006.
Court Two:
That the you Ubong John Udofia ‘m’ adult of Guida village Kubwa Abuja on or about 26/6/2010 at Garki Abuja within the Abuja Judicial Division issued Maimuna Ibrahim an Oceanic Bank International Plc cheque No: 1823925 for the sum of Two Million Three Hundred and Fifty Thousand, Nine Hundred and Forty-Eight Naira (N2,350,948.00) in payment of the money you deceitfully collected from her between May and June 2010 which was presented for payment on the 21/06/2010 and returned dishonoured for lack of funds knowing fully well that you had no money in the said account. You thereby committed an offence contrary to Section 1 of the Dishonoured Cheque Act LFN 2004.
Count Three:
That you Ubong John ‘m’ Adult of Guida village Kubwa on or about 5/7/2010 at Garki Abuja within the Abuja Judicial Division issued Maimuna Ibrahim with an Oceanic Bank International Plc cheque No: 18239321 for the sum of One Million, Two Hundred and Ninety Nine Thousand, Four Hundred and Thirty Seven Naira (N1,291,437.00) in payment of the money you deceitfully collectedfrom her between May and June 2010, which was presented for payment on the 5/7/2010 and returned unpaid for lack of funds knowing fully well that you do not have money in the said account. You thereby committed an offence contrary to Section 1 of the Dishonoured Cheque Act LFN 2004.
The Appellant pleaded not guilty to each of the counts above and thereafter, the matter proceeded into full trial before the trial Court.
In order to prove his case, the Prosecution called two (2) witnesses, tendered Eleven Exhibits and closed his case. Thereafter, the Appellant filed a no-case submission, which was considered and the trial Court upheld the no-case submission on count one and ordered the Appellant to enter his defence with regards to counts two and three of the charges as contained in its ruling delivered on the 8th day of February, 2013.
The Appellant did enter his defence in respect of the two counts in the charge wherein he testified for himself and closed his case.
In a considered judgment delivered on the 12th of February, 2015, the trial Court convicted the Appellant on the two counts charge of Issuance of Dud Cheque contrary to Section 1(1) of the Dishonoured Cheque Act and sentenced him to two years imprisonment on each of the counts which shall run concurrently.
Dissatisfied by this decision, the Appellant appealed to this Court vide the notice of appeal filed on 13th day of March, 2015. The record of appeal was transmitted to this Court on 20th of October, 2017, but deemed properly filed and served on the 19th day of May, 2020.
The Appellant filed the appellant’s brief on 19/05/2020, which was deemed properly filed and served same day. While the Respondent filed the Respondent’s brief on 26/11/2018 but deemed properly filed and served on 07/04/2020.
The Appellants framed two issues for determination. These issues are as follows:
1. Whether having regards to the provision of Section 3(2) of the Dishonoured Cheques (Offences) Act, the trial Court’s jurisdiction to try the Appellant was not afflicted when the Nigeria Police Force prosecuted the Appellant without the fiat or authorization of the Attorney General of the Federation.
2. Whether failure of the learned trial Court to properly consider and evaluate the documentary Exhibits before convicting theAppellant for the offence of issuing Dishonoured Cheques did not occasioned a miscarriage of justice.
The Respondent adopted the issues of the Appellant for the determination of this appeal. This appeal will therefore be determined on the two issues as submitted by the Appellant. I now start with issue one.
Issue One:
This issue is whether having regards to the provision of Section 3(2) of the Dishonoured Cheques (Offences) Act, the trial Court’s jurisdiction to try the Appellant was not afflicted when the Nigeria Police Force prosecuted the Appellant without the fiat or authorization of the Attorney Genera! of the Federation.
Learned counsel for the Appellant relied on Section 3(2) of the Dishonoured Cheques (Offences) Act. He argued that the powers to prosecute an offender under this Act are vested in the Attorney General of the Federation or of a State and not the Police. Therefore, the prosecution of the Appellant by the Nigerian Police under the Dishonoured Cheques and other Offences Act robs the trial Court of its jurisdiction. He submitted that the prosecution of the Appellant by the Police, ultra vires the powers of the Policeto prosecute having regards to Section 3(2) of the Dishonoured Cheques (Offences) Act and all acts founded on ultra-varies action are null and void.
He contended that the word âultra-viresâ means beyond or above the power conferred. It is an act which is invalid since it has been done in excess of authority conferred by law. He cited the cases of Oniga v. Govt. of Cross Rivers State & Anor (2016) LPELR-40112 CA 13 Para C and Ejimofor v. NITEL (2007) 1 NWLR (Pt.1014) 153 @180 para C, G-H.
Counsel stated that the law is trite, where a law like in Section 3(2) of the Dishonoured Cheques (Offences) Act, prescribes steps to be taken, no other steps other than that prescribed must be followed. He cited the case of Amaechi v. INEC (2008) 10 WRN 1 @ 33-34 Ratio 16. Therefore, the consequence in Law of the prosecution of the Appellant by the Police which is contrary to Section 3(2) of the Dishonoured Cheques Act, is that the Appellant was not prosecuted and his sentence, conviction is null and void arising from an invalid Act. This robs the trial Court of its Jurisdiction on the matter.
Counsel for the Respondent submitted that the trialof the Appellant for the offences of issuance of dud cheque under the Dishonoured Cheque (Offences) Act by the Nigerian Police Force, did not affect the jurisdiction of the trial Court. As regards to Section 3(2) of the Dishonoured Cheques (Offences) Act. The Appellant contended that the trial Court erred when the Appellant was prosecuted by the Respondent for offences under the Dishonoured cheque (offences) Act without the fiat of the Attorney General of the Federation.
Counsel submitted that the contention of the Appellant’s counsel is based on a misconception of the provision of Section 3(2) of the Dishonoured Cheques (Offences) Act. Thus:
Section 3(2) of the Dishonoured Cheques (Offences) Act:
3(1) offences under this act shall be triable summarily by the High Court of the state where the offence was committed and the procedure application in the case of summary trial of offences before such Court shall apply to the same extent for the purpose of trials for offences under this Act.
3(2) Authority to exercise the powers of the Attorney General of the Federation under Section 160 of the Constitution of the Federal Republic of Nigeria 1999(which relates to the initiation and conduct of criminal proceedings for offences under an enactment) is hereby in respect of any offence under this Act committed in a state conferred on the Attorney General of that state but nothing in this subsection shall be construed as precluding the Attorney of the Federation from exercising any of the powers this subsection relates.
Counsel submitted that there is nothing in the provision of Section 3(2) of the Dishonoured Cheques (Offences) Act, that prohibits the Nigerian Police Force, from prosecuting offences under the Act. Furthermore, the provision is made to extend the power to prosecute offences under the Act to state Attorney General where an offence of that nature is committed within a state. In order words, since the Dishonoured Cheques (Offences) Acts, is federal law which the states Attorney General ordinarily cannot prosecute offences created by it, the Act has by virtue of Section 3(2) thereof made it possible for State Attorney Generals to prosecute offences created by the Act.
He maintained that the duty of the Court in the interpretation of statutes is to seek the intention of the drafters of the law.And in this case, if the drafters of the Dishonoured Cheque (Offences) Act, had intended that offences under the Act shall be exclusively prosecuted by the Attorney General of the Federation or of the State, it would have expressly said so and in the absence of such express provision, the Court cannot input into the Act what was not intended by the legislature. He relied on the case of Isah v. State (2018) 8 NWLR part 1621 page 346 at 361.
Counsel stated that the combined effect of Section 23 of the Police Act, Section 98(1) of the Federal Capital Territory High Court Act and Section 227 of the Criminal Procedure Code under which the Respondent instituted the action and leading to the conviction of the Appellant empowers the Respondent to prosecute on behalf of the state any offence created by any law in Nigeria without the fiat of the Attorney General of the Federation. He relied on the cases of Olusemo v. COP (1998) 11 NWLR part 575 pages 547 at page 563-564 and 559, Nyame v. FRN (2010) All FWLR part 527 pages 618 at 663, Aniakor v. Nigeria Police Force (2014) 15 NWLR part 1429 page 155 at 173-174 and FRN v. Osahon (2006) 25 NSCQR page 512 at page 544Counsel pointed out that Section 3(2) of the Dishonoured Cheque (Offences) Act and Section 23 of the Police Act in which the Respondent derives his power to institute and prosecute the Appellant at the trial Court under the Dishonoured Cheque (Offences) Act, have to be read in conjunction with Section 174 and 211 of the 1999 Constitution. Furthermore, in resolving the conflict between Section 3(2) of the Dishonoured Cheques Offences Act and Section 23 of the Police Act, as to who should prosecute offences under the Act, Section 174 of the 1999 Constitution should be used to resolve the conflict.
Counsel submitted that the provisions of Section 23 of the Police Act, Section 98(1 ) of the FCT High Court Act, Section 227 Criminal Procedure Code under which the charges were filed, Section 3(2) of the Dishonoured Cheque (Offences) Act and Section 174 of the 1999 Constitution (as amended), the Respondent did not require the fiat of the Attorney General of the Federation before instituting the prosecution of anybody (Appellant) for the offence under the Dishonoured Cheque (Offences) Act. The contention of the Appellant that the Respondent actedultra-vires in its power is erroneous. He urged this Court to discountenance same.
He maintained that in criminal trial where an Accused did not raise an issue of procedure timeously, he will not be allowed to raise it at the appeal stage. He cited the case of Nnakwe v. The State (2013) 18 NWLR part 1385 page 1 at 29. Failure of the Appellant to raise the issue of the competence of the Respondent to try him under the Dishonoured Cheque (Offences) Act, at the trial Court, cannot be raised at this stage. He urged this Court to so hold.
Counsel finally submitted that the Respondent did not act ultra-vires in its power to institute criminal proceedings against the Appellant under the Dishonoured Cheque (Offences) Acts. He urged this Court to so hold and resolve this issue in favour of the Respondent.
A deep and elaborate argument has been mobilised by the parties on this issue. What is really intriguing in this issue is the fact that the Appellant is not canvassing the fact that he has no business with the offence for which he was convicted and sentenced, his foremost contest is that the Police that prosecuted him have no right to prosecute him.
His take is that it is only the Attorney General of the Federation or the State that could prosecute him for the offences in focus. Prosecution of offenders in this country Nigeria is guided by the Constitution and the Law. The learned counsel for the Appellant had canvassed in his brief of argument that under Section 3(2) of the Dishonoured Cheque (Offences) Act, the power of prosecution was vested in the Attorney General of the Federation and the State.
Let me begin by saying that the provision of Section 3(2) of the Dishonoured Cheque Act is very clear, clean and plain that it does not require any construction. The law provides as follows:
Authority to exercise the powers of the Attorney-General of the Federation under Section 160 of the Constitution of the Federal Republic of Nigeria 1999 (which relates to the initiation and conduct of criminal proceedings for offences under an enactment) is hereby, in respect of any offence under this Act committed in a State, conferred on the Attorney-General of that State, but nothing in this subsection shall be construed as precluding the Attorney-General of the Federation from exercising any of the powers to which this subsection relates.The law gives to the Honourable Attorney General of a State the power to prosecute offenders of this law. It did not confer on the Attorney General of the Federation and of the State absolute proprietary right of prosecution under this Act. The law must accord to the provision of the Constitution which confers on the Attorney General the power of prosecution as the Chief Law Officer of the Federation. The Constitution under Section 174 endowed the Attorney General of the Federation with the follows powers:
174 – (1) The Attorney-General of the federation shall have power –
(a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court martial, in respect of any offence created by or under any Act of the National Assembly;
(b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
(2) The powers conferred upon theAttorney – General of the Federation under subsection (1) of this Section may be exercised by him in person or through officers of his department.
(3) In exercising his powers under this Section, the Attorney-General of the Federation shall have regard to the public interest, the interest of justice and the need to prevent abuse of legal process.
This Constitution conceived for the Attorney General the power to take over or continue any such criminal proceedings that may have been instituted by any other authority or person. This follows therefore, the fact that the constitution did not intend to make prosecution of offenders the absolute prerogative of the Attorney General. To imagine that the Attorney General alone should be the sole authority in prosecution of offenders in a country of thirty-six states and the Federal Capital Territory is to over burden that office and clog down easy prosecution of offenders. The Constitution of Nigeria 1999 is the creator of the Nigeria Police Force. By Section 214(1) of 1999 Constitution there shall be a Police Force for Nigeria, which shall be known as the Nigeria Police Force, and subject to the provisions ofthis section no other Police Force shall be established for the Federation or any part thereof. Also, Act of the National Assembly which is the Police Act, 2004 by Section 3 following the Constitution establishes the Nigeria Police Force. Section 4 of the Police Act CAP P19 Laws of the Federation of Nigeria 2004 specifies the General duties of the Police. It provides as follows:
“The Police shall be employed for the prevention and detection of crime, the apprehension of offenders, the preservation of the law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged them by, or under the authority of this or any other Act.”
Furthermore, Section 23 of the Police Act, endowed the Police with the power of prosecution of any prosecution before any Court of law in Nigeria subject to the power of the Attorney General under Sections 174 and 211 of the Constitution. The power of the Police to prosecute was well considered by the Supreme Court in the case of FRN v. Osahon (2006) LPELR-3174 (SC). The Supreme Court per Pats Acholonu, JSC held at pages 40 – 41 of the report as follows:“…Section 174 (1) of the Constitution which states as follows: “The Attorney General of the Federation shall have power – (a) to institute and undertake criminal proceedings against any person before any Court of law in Nigeria other than a Court martial, in respect of any offence created by or under any Act of the National Assembly; (b) to take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and (c) to discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.” It must be admitted that there are three elements ingrained in this provision namely: (a) Power of the Attorney General to institute and undertake criminal proceedings before any Court of law in Nigeria (b) a recognition that power to institute criminal proceedings is not exclusively vested in the Attorney General, id est, it impliedly admitting of initiating of criminal proceedings by other authorities, agencies and persons. (c) The office of the Attorney General can use its discretion to do any of the thingsmentioned in that section. Because he shall have a discretion to do any of these things mentioned therein if he so chooses or desires, it then means that he ought not be unduly overzealous in taking over or continue to prosecute a case, initiated by any other body, thereby tacitly recognizing that the Attorney General does not have the monopoly of instituting criminal prosecutions, fiat or no fiat.”
In the instant case, Section 3(2) of the Dishonoured Cheque Act, does not prohibit the Police or other authorities in prosecuting the offenders under the Act. It follows therefore, that there can never be any controversy as to the powers of any Police to prosecute before any Court the offences to which the Dishonoured Cheques Act relates. This issue from the foregoing, is resolved in favour of the Respondent.
Issue Two:
This issue is- whether failure of the learned trial Court to properly consider and evaluate the documentary Exhibits before convicting the Appellant for the offence of issuing Dishonoured Cheques did not occasioned a miscarriage of justice.
Learned counsel for the Appellant argued that the trial Court failed to properlyevaluate the documentary evidence that were in favour of the Appellant before his conviction on 12th December 2015, and this failure would make the said judgment liable to be set aside by this Honourable Court. He referred this Court to pages 235 of the record of appeal and also the entire evidence of PW1 at pages 177 to 187 of the Record of Appeal.
Counsel stated that the law is trite that Courts, being Courts of law and facts does not indulge in the realm of speculation, hypothesis, suppositions or assumptions. He cited the cases of Bature v. State (2015) 20 WRN 128 at 152-153 and Mohammed v. State (1997) 9 NWLR (pt. 520) 169 @ 223.
Furthermore, the trial Court at pages 230-235 of the Record of Appeal set out the ingredients to establish the offence under Section 3(2) of the Dishonoured Cheques Act against the Accused beyond reasonable doubt as follows:
1. The cheque was issued by the Accused person to the nominal complainant.
2. The cheque was presented to the bank within 3 months from the due date.
3. The cheque was dishonoured for lack of funds in the drawers account on which the cheque was drawn.
Counsel argued that the trial Court unexpectedly overlooked the contents of Exhibits C and D, which is said to be the Dishonoured Cheque. On the face of Exhibits C and D dated 5th July 2010 and 21st June 2010, respectively and duly admitted in evidence on 1/12/2012, it shows that the two cheques were issued by IB KLENZ NIGERIA LIMITED and not by the Appellant as alleged in the two counts charge on which the Appellant was convicted. IB KLENZ NIGERIA LIMITED is a Limited Liability Company which is different from the Appellant. The two counts under which the Appellant was charged and convicted did not mention IB KLENZ NIGERIA LIMITED or that the Appellant used the cheque of the said company. Thus, there is no evidence showing that the Appellant issued his owned cheque to Maimuna Ibrahim which was returned unpaid because the cheques Nos:1823925 and 18239321 allegedly issued to her, as stated in counts 2 and 3 of the charge sheets belongs to IB KLENZ NIGERIA LIMITED. Furthermore, there is no evidence in support of the allegations in the charge sheet or of proving ingredients of the offence alleged, the Prosecution cannot be said to have proved his case beyond reasonable doubt. He reliedon the cases of Isiaka v. State (2012) 4 W.R.N @164 ratio 9, Ifejirika v. State (1999) 3 NWLR (Pt. 591) 59 and Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367 ratios 31 and 35.
Counsel pointed out that the trial Court was wrong to have convicted the Appellant without resolving the doubts in the testimonies of the Prosecution’s witnesses in favour of the Appellant, that the “DAR” allegedly endorsed on Exhibits C and D (pages 12 & 13 of the Record of Appeal) were not marked or stamped by the Bank staff to indicate that the cheques were actually presented to the bank and returned unpaid. Also, whether Exhibits C and D were tendered within 3 months of their issuance as required by law (Section 3(2) of the Dishonoured Cheques Act), because all these doubts ought to be resolved and proved beyond reasonable doubt by the Prosecution. He cited the case of Olusola Adepoju v. The State (Supra).
Furthermore, the trial Court did not consider the set of facts that can be interpreted in a manner favourable to the Appellant. Thus, these facts that were not considered by the trial Court includes:
1. Counts 2 and 3 of the charge sheetsdid not mention that the Appellant issued Cheques Nos. 1823925 and 18239321 in the IB KLENZ NIGERIA LIMITED, and PW1 never testified to these facts as found by the trial Court.
2. The learned trial Court also at pages 238 of the record of Appeal found that “a look at the two cheques (Exhibits C and D) shows they clearly had the words “DAR” marked on twice by the bank”. This perverse finding of the trial Court was not supported by evidence. The DAR endorsed on EXHIBITS C and D was not dated, stamped or initialled by the bank staff and no bank official was called to testify. At page 238 of the Record of Appeal, the trial Court found that the Appellant in his testimony expressed gratitude to God that the cheque was not stamped in the bank as “Dutch Cheque”.
3. The cheque Nos.1823925 and 18239321, (Exhibits C and D) were issued by IB KLENZ NIGERIA LIMITED and not the Appellant. Thus, a limited liability company as at the date of its incorporation becomes a full legal person with legal capacity to conduct its own affairs. See Section 28 of the Companies and Allied Matters Act.
4. The undisputed facts established before thetrial Court is that the entire transaction that gave rise to the criminal charge against the Appellant was purely a loan transaction. See Exhibits A and B.
The trial Court did not consider all the defences raised and available to the Appellant in its judgment of 12th February, 2015, which is liable to be set aside by this Honourable Court. He relied on the case of Ebre& 2 Ors. v. State (2001) 6 SCJE 388 @ 397 paras B-C.
Counsel urged this Honourable Court to allow this appeal and set aside the judgment of the trial Court dated 12th February, 2015.
Learned counsel for the Respondent submitted that the trial judge properly considered and evaluated all the documentary Exhibits (i.e. Exhibits A, B, C, D, E, F, G, H, I & J) before concluding that the Appellant was guilty of the offence of issuing Dishonoured Cheques, consequently convicted and sentenced him accordingly. He referred this Court to the judgment of the trial Court at pages 235-240 of the Record of Appeal. He relied on the case of Akinbisade v. State (2006) 17 NWLR part 1007 page 184 at 204.
The Appellant in paragraphs 5.0 and 5.1 of the Appellant’s brief of argumentquoted a portion of the judgment of the trial Court and contended that the holding of the trial Court was not supported by evidence before the Court and that Exhibits C and D were issued by IB KLENZ NIG. LTD, a Limited Liability Company and not by the Appellant.
Counsel in response to this contention submitted that the Appellant’s counsel argument is highly misconceived. He referred this Court to Exhibits A and B (pages 81 and 82 of the Record of Appeal), Exhibit F (page 21 of the Record of Appeal).
The two cheques which the Appellant signed twice and issued to PW1 in repayment of the money borrowed from her as reflected in Exhibits A and B were drawn on the account of IB KLENZ NIG. LTD (pages 12 &13 of the Record of Appeal) and also the cross- examination of the Appellant (pages 208 & 213 of the record of Appeal). He maintained that the extract of the testimony of the Appellant as outlined above never intended that the company will pay back the money to PW1. The Appellant also never raised any distinction between him and his company.
Counsel stated that it is a settled law that where a company acts and its actions affects the rights of aperson negatively, the veil of the company can be lifted to see and hold those behind the act liable. He relied on the case of Dr. S. Okechukwu v. Corporative and Commercial Bank (Nig.) Plc & Anor. (2012) 52 NSCQR page 68 @ 101 -102. Therefore, the Appellant cannot hide under the principle or cloak of separate legal entity as a defence to absolve him from the crime of issuance of dishonoured cheques he committed against the complainant. He cited the cases of Mohammed v. State (1997) 9 NWLR part 520 page 169 at 223, Bature v. State (2015) 20 WRN page 128 at 152-153 and Isiaka v. State (2012) 4 WRN page 164 at 182.
The Appellant contended that the cheques apart from being marked with the word “DARâ was not stamped by the bank which raised a doubt as to whether it was presented to the bank for payment (page 9 of the Appellant’s brief). And that even if it was presented, it was after three months from the due date. He submitted in response to this that the testimony of PW1 on pages 178, 182 and 187 to the effect that she presented the cheques twice for payment and it was dishonoured twice was never challenged by the Appellant at the trial. The testimony of PW1 was corroborated by Exhibit J2, the statement of account of the Appellant’s company clearly shows that there was no sufficient fund in the account on the due dates of the cheques to sustain the cheques. (see last paragraph of pages 178, 7th paragraph on pages 182 and also 2nd paragraph on page 187 of the record of Appeal). The evidence of PW1 was further corroborated by the testimony of PW2 (pages 199 & 202 of the Record of Appeal). He relied on the case of UBN v. Ayodare (2007) 30 NSCQR page 1 at page 3 Ratio 3.
Counsel submitted that the trial judge properly considered all the defences raised by the Appellant before convicting him. He urged this Court to resolve this issue in favour of the Respondent and dismiss this appeal for lacking in merit, affirm the judgment and conviction of the Appellant by the trial Court.
It is basic and an established position of our law that evaluation of evidence is the duty of the trial Court which heard the witnesses and received evidence at the trial. Evaluation entails a thorough appraisal and assessment of evidence that will bring about a logical conclusion on issues of law and fact.
The task of evaluation is that of the trial judge who saw, heard and assessed the witnesses as they testified at the trial and observe witness demeanour. Okoro, JSC, in the case of Ezeani v. FRN (2019) LPELR-46800 held that evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. See Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, Adamu v. The State (1991) 4 NWLR (Pt. 187) 530, (1991) LPELR-73 (SC). In essence what therefore amounts to evaluation of evidence is the opinion formed by a Judge on the amount, value or quality of evidence before him after thinking about or considering such evidence carefully. All in all, evaluation of evidence for our purpose is the appraisal of oral evidence and the ascription of probative value to the evidence resulting in the finding of facts. Adjudication by the trial Court therefore revolves around the assessment of evidence so as to give it value or the quality so desired. See Onwuka v. Ediala (1989) 1 NWLR (Pt. 96) 182 at 208, Chief Niyi Akintola v. Buraimoh L. Balogun &Ors.(2000) 1 NWLR (Pt. 642) 532 at 549.
In the instant case, the learned trial judge held in his judgment at pages 235 to 237 of the Record of Appeal as follows:
Both in his statement to the Police (Exhibit F), examination in chief and cross examination, the Accused person admitted he knew the nominal Complainant (PW1) and that he borrowed money from her in 2009 as shown in Exhibits A and B and was supposed to pay her the sums as stated in Exhibit C to her. He also admitted being the Managing Director and Chief Executive Officer of IB Klenz Nigeria Limited. He admitted as well under cross examination that he issued Exhibits C and D to the Complainant. He however did not issue them to her to present to a bank as collateral for the money he collected from her.
From the foregoing, it is evident the Accused does not contest having borrowed the sums of money stated in Exhibits A and B from the nominal Complainant as well as having issued the cheques Exhibits C and D to her. By the records too, it is apparent that under cross examination he admitted he was the sole signatory of the company IB Klenz Nig. Ltd on whose account Exhibits C and D weredrawn and that between 22nd December, 2010 and 22nd February, 2013, there was no credit balance of up to N2,350,000.00 in it. Indeed, he admitted that the account never had a credit balance of up to this amount from inception to 2013. The highest credit balance was N20,942.52.
…
When cross examined on the issue, the PW1 insisted that she presented Exhibit C to the bank twice and it was dishonoured. That she presented it to the bank on the date written on it being 5th July, 2010. That she was told on enquiry by the bank that there was no money in the account. The accused did not contradict the piece of evidence with any evidence to show the cheque was honoured on presentation in the bank.
The trial Court from the record before the Court, did evaluate all the evidence creditably before coming to the conclusion that the two counts were proved beyond reasonable doubt and convicted the Appellant. The cheque in issue were properly found to be issued and presented to the bank for clearance when the Appellant had no such money in his Bank to his credit. It was also so obvious that the cheques were not issued as collateral as alleged by the Appellant.It holds good therefore that the Prosecution did prove its case beyond reasonable doubt before the trial Court. The evaluation of evidence as carried out by the trial Court in the circumstances of this case is unassailable. The Appellant has failed to establish the need for the findings and evaluation made by the trial Court should be interfered with by this Court.
This issue therefore, is resolved in favour of the Respondent.
From the foregoing therefore, I am highly convinced that the appeal is lacking in merit. The appeal is hereby dismissed. The judgment of the trial Court delivered on the 12th day of February, 2015 is hereby affirmed.
ADAMU JAURO, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother, Stephen Jonah Adah, JCA. I am in complete agreement with the reasoning and conclusion contained therein to the effect that the appeal is lacking in merit, and ought to be dismissed.
I adopt the said judgment as mine and join my brother in dismissing the appeal. The judgment of the trial Court delivered on 12th February, 2015 is here affirmed.
YARGATA BYENCHIT NIMPAR, J.C.A.: I was given the privilege of reading in advance the judgment just delivered by my brother, STEPHEN JONAH ADAH, JCA and in concise manner resolved the issues for determination in this appeal.
The Appellant indeed cannot hide under the principle or cloak of separate legal entity as a defence to absolve himself from the offence of issuance of dishonoured cheques which he committed. It is settled that companies act through human alter ego. See CHEMIRON (Int’l) LTD v. STABILINI VISINONI LTD (2018) LPELR-44353(SC) and KATE ENTERPRISES LTD v. DAEWOO NIG. LTD (1985) 2 NWLR (Pt.5) 116. Therefore, if the alter ego of an artificial person uses his position to commit a crime through the instrumentality of company cheques, he must bear responsibility because the transaction herein was not company’s business. It is preposterous for the Appellant to want to use that to escape criminal liability.
I also dismiss the appeal for lacking in merit. I abide by the other orders made in the lead judgment.
Appearances:
ALIYU I. LEMU ESQ., with him, A.Y. MUNDI ESQ.For Appellant(s)
SIMON LOUGH ESQ., (ACP)For Respondent(s)