(2018) LPELR-46075(CA)

Transcription

1 STATE v. UGOKWE CITATION: ABDU ABOKI TANI YUSUF HASSAN MOHAMMED MUSTAPHA In the Court of Appeal In the Abuja Judicial Division Holden at Abuja ON MONDAY, 16TH JULY, 2018 Suit No: CA/A/579C/2015 Before Their Lordships: Between THE STATE - Appellant(s) And IBE UGOKWE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal

2 1. CRIMINAL LAW AND PROCEDURE - ISSUANCE OF DISHONOURED/DUD CHEQUE(S): Element of the offence of issuing dishonoured cheque(s) "The starting point in the determination of this appeal would invariably be a critical appraisal of the provisions of Sections 1(1)(b)(i) and 2(a) & (b) of the Dishonoured Cheques (Offences) Act CAP D11, LFN 2OO4, which state as follows: 1. (1) Any person who- (a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or (b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall- (i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and (II) in the case of a body corporate, be sentenced to a fine of not less than N5,000. (2) For the purposes of subsection (1) of this section- (a) the reference to anything capable of being stolen shall be deemed to include a reference to money and every other description or property, things in action and other intangible property; (b) a person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shah be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified. It is glaring from the above that for the Appellant to succeed in a charge under Section 1 (1) (b)(i) of the Dishonoured Cheques (Offences) Act CAP D11, LFN 2004, the following ingredients must be proved: 1. That the accused person obtained credit for himself 2. That the accused person issued a cheque to the complainant. 3. That upon presentation, the cheque was dishonoured on the ground that there was insufficient funds standing to the credit of the accused person. 4. That the cheque was presented not later than three months from the date of issuance."per ABOKI, J.C.A. (Pp , Paras. D-C) - read in context

3 2. EVIDENCE - CALLING OF WITNESS(ES): Whether in a criminal trial, a host of witnesses is required by the prosecution to achieve a proof beyond reasonable doubt "It is the law, as rightly stated by learned counsel to the Appellant that the prosecution need not call a host of witnesses in proof of its case, as the evidence of a single witness, if believed by the Court, can establish a criminal case. See NKEBISI v. STATE (2010) 5 NWLR (PT. 1188) 491 EFFIONG v. STATE (1998) 8 NWLR (PT. 562) 362. It is however the trite, that it is incumbent on the prosecution to call a witness whose testimony will determine the case one way or another. Such a witness, known as a vital witness, is key to the success of the prosecution's case. see: IMHANRIA v. NIGERIAN ARMY 1 (2007) 14 NWLR (PT 1053) 76."Per ABOKI, J.C.A. (P. 18, Paras. A-D) - read in context

4 ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): The Respondent was arraigned at the High Court of Kogi State, sitting at Lokoja, on three heads of charge of issuance of dud cheques punishable under Section 1 (1) (13) (i) of the Dishonoured Cheques Offences Act, CAP D11, LFN 2004; to wit: 1st head of charge That you, Ibe Ugokwe on or about the 3rd day of August 2011 at Lokoja in Lokoja Local Government Area within Kogi State judicial Division issued dud cheque No of Four Hundred and Fifty Thousand Naira only to one Ugochukwu Onakwe and you thereby committed an offence punishable under Section 1(1)(b)(i) of Dshonoured Cheques (Offences) Acts CAP D11 Laws of the Federation of Nigeria nd Head of Charge That you, Ibe Ugokwe on or about the 20th day of October, 2011 at Lokoja in Local Government Area within Kogi State Judicial Division issued dud cheque No of Two Hundred and Twenty Four Thousand Naira only to one Ugochukwu Onakwe and you thereby committed an offence under Section 1(1)(b)(i) of Dishonoured Cheques 1

5 (Offences) Acts CAP D11 Laws of the Federation of Nigeria rd Head of Charge That you, Ibe Ugokwe on or about the 5th day of June, 2012 at Lokoja in Lokoja Local Government Area within the Kogi State judicial Division issued dud cheque No of Two Hundred Thousand Naira only to one Ugochukwu Onakwe and you thereby committed an offence punishable under Section 1(1)(b)(i) of the Dishonoured Cheques (Offences) Acts CAP D11 Laws of the Federation of Nigeria The case of the Appellant as can be gleaned from the Record is that sometime in 2010, the Complainant (PW1), sought the Respondent's assistance to accommodate his goods worth about N874, , pending when he (PW1) would sort out the issues regarding his shop. When PW1 came back at a later date to claim his goods, he discovered that the Respondent had sold all his goods without his consent. After several months of persistent demand for payment by PW1, the Respondent at various times between 2

6 2011 and 2012 issued three United Bank for Africa cheques (Exhibits 1, 2, and 3) to PW1, which were dishonoured by the bank upon presentation, on the ground that there was insufficient funds in the account of the Respondent. In proof of its case, the Appellant called two witnesses and tendered five exhibits. On its part, the Respondent in his defence denied entering into the transaction in person as alleged by the Appellant. He stated that PW1 was a supplier to a Company Heritage Pyramid Concept Ltd; in which he (the Respondent), is a Director. He referred to the name on the cheques issued by the said Company to PW1 and stated further that the cheques were not properly presented and there was sufficient money in the account on which the cheques were drawn. He testified for himself and called no other witnesses. At the conclusion of trial, N.A AIANAH, J (CON), discharged and acquitted the Respondent. At page 156 to 157 of the Record, the Trial Court held as follows: "On the whole, therefore the prosecution has failed to prove beyond reasonable doubt that the accused committed the offences alleged against him, I therefore do not find the 3

7 accused guilty of any of the charges preferred against him. I hereby discharge and acquit the accused of the offences alleged against him..." Dissatisfied with this decision, the Appellant appealed to this Court. The Amended Notice of Appeal deemed filed on the 24th of January 2018 is upon ten grounds. The Appellant's brief of argument was dated and filed on the 29th of September MOHAMMED SANNI IBMHIM Esq., (the Honourable Attorney General of Kogi State), who settled the Appellant's brief, formulated the following four issues for the determination of this Court, namely: 1. Whether from the totality of the evidence adduced at the Trial Court, the prosecution has proved the case against the Respondent beyond reasonable doubt as distilled by law? 2. Whether there was substantial compliance with Section 201 of the Criminal procedure Code? 3. Whether the failure to call a banker to testify is fatal to the case of the prosecution thereby making the admission of exhibit 6 of no effect? 4. Whether there was proper evaluation of the evidence of the prosecution adduced before the Trial Court? 4

8 No brief of argument was filed on behalf of the Respondent, despite the service of the Appellant's brief on him and repeated service of hearing notices. Consequently, by an order of this Court made on the 2nd of May 2018, this appeal shall be heard on the Appellant's brief alone. At the hearing of the appeal on the 3rd of May 2018, Y.E. Yusufu Esq., (acting DPP, Kogi State), adopted and relied on the Appellant's brief of argument and urged this Court to allow the appeal and set aside the judgment of the Trial Court and convict the Respondent as charged. Having stated that this appeal was heard on the Appellant's brief alone, the four issues formulated by the Appellant are hereby adopted for the determination of this appeal and they shall be considered together. SUBMISSION ON ISSUES On whether from the totality of the evidence adduced at the Trial Court, the prosecution has proved the case against the Respondent beyond reasonable doubt as distilled by law, it is submitted for the Appellant that the law is settled that the onus is always on the prosecution to prove all the ingredients of an offence charged beyond reasonable doubt. 5

9 Reliance was placed on Section 135 of the Evidence Act, 2011 as well as the cases of: OBIAKOR v. STATE (2002) 6 SCN] 202; STATE v. AIBANGBEE (1988) 7 SC (PT. 1) ; AIGUOREGHIAN & ANOR v. THE STATE (2004) 1 SCNJ 56. Learned counsel to the Appellant contended that the Appellant, as Prosecution, has proved the case against the Respondent as charged, and urged this Court to so hold. Relying on the case of ABEKE v. THE STATE (2007) ALL FWLR (PT. 366) 644, he listed the ingredients that the prosecution must prove to sustain a conviction under Section 1 (1) (b)(i) of the Dishonoured Cheques Offences Act, CAP D11, LFN 2004, and submitted that the prosecution has proved the ingredients of the offence charged beyond reasonable doubt. Learned counsel to the Appellant invited this Court's attention to the evidence of PW1 and PW2 at pages 117 to 123, and 130 to 132 of the Record respectively, as well as the case of FAJEMIROKUN v. COMMERCIAL BANK NIG. & ANOR (2009) 2 NWLR (PT ) 299, and 6

10 impugned the Trial Court's decision that it is not in all cases that a drawer of a dishonoured cheque commits an offence. He posited strongly that the Trial Court erred in holding that the prosecution had not proved the ingredients of the offence charged, when there was ample, cogent and sufficient evidence that Exhibits 1, 2, and 3 were dishonoured by the Bank as a result of insufficient funds in the Respondent's account. He also referred this Court to Exhibit 5, the extra judicial statement of the Respondent, and submitted that the Respondent admitted that he paid the sum of N200, to PW1, after Exhibit 3 was dishonoured by the Bank. This learned counsel to the Appellant argued, is a free, voluntary, direct and positive confession by the Respondent and the Trial Court ought to have convicted the Respondent based on Exhibit 5. He called in aid these cases: HASSAN v. STATE (2001) 6 ALL NLR 251; ALARAPE v. THE STATE (2001) 2 SC 125; UBIERHO v. THE STATE (2005) 5 NWLR (PT. 919) 664; CHIOKWE v. THE STATE (2005) 5 NWLR (PT)

11 On the issue of whether there was substantial compliance with Section 201 of the Criminal Procedure Code, learned counsel to the Appellant answered this question in the affirmative and submitted that from the couching of the heads of charge, the Respondent was left in no doubt of the case against him. He invited this Court's attention to pages 9 and 10 of the Record as well as the following authorities: SECTION 206 of the CRIMINAL PROCEDURE CODE SONOMA (ALIAS DR) v. IGP (2013) LPELR (CA); OGUDO v. STATE (2011) 12 SCNJ 40. He maintained that the Respondent was not prejudiced by the charge framed against him as he was put on sufficient notice of the offences charged against him and his right to fair hearing was therefore not breached. On whether the failure to call a banker to testify is fatal to the case of the prosecution thereby making the admission of exhibit 6 of no effect, it is stated for the Appellant that the prosecution is not bound to call a host of witnesses to prove the guilt of an accused person. A court of law can convict on the testimony of a single witness if the witness can be believed given the circumstances of the case. Reliance was placed on the following cases: 8

12 OLABODE v. STATE (2009) VOL. 38 NSCQR (PT. 1) ; AKPABIO v. STATE (1994) 7-8 SCNJ (PT 111) 429; IDIOK v. STATE (2006) 12 NWLR (PT. 993) 29; NWAEZE v. THE STATE (1996) 2 NWLR (PT. 428) 11; NKEBISI v. THE STATE (2010) 5 NWLR (PT. 1188) Learned counsel to the Appellant maintained that although calling an expert witness is desirable in proving the guilt of an accused person, it is not a sine qua non, and the finding of the Trial court that the failure of the Appellant to call a banker to testify, was fatal to the Appellant's case was highly misconceived. The case ofoyem v. FRN (2013) LPELR (CA) was relied on. On the issue of whether there was proper evaluation of the evidence of the prosecution adduced before the Trial Court, learned counsel to the Appellant relied on the case of ANYEGWU v. ONUCHE (2009) 3 NWLR (PT. 1129) 675, and submitted that considering the totality of the evidence adduced by the Prosecution, the Trial Court failed to properly evaluate the evidence adduced before it. He opined that the salient questions before the Trial Court was whether the Respondent 9

13 has any obligation to pay PW1 a certain sum of money; whether he issued any cheque to that effect; and whether the cheques were presented and dishonoured by the Bank after presentation. It is his view that had the Trial Court properly evaluated the evidence adduced, vis-d-vis these questions as well as the provisions of Section 1 (1)(b)(i) of the Dishonoured Cheques (Offences) Act CAP D11, LFN 2004, it would have come to a different conclusion. This Court is therefore urged to re-evaluate the evidence adduced at the trial and find in favour of the Appellant. In conclusion, this Court is urged to allow the appeal, set aside the judgment of the Trial Court and convict the Respondent as charged. RESOLUTION OF ISSUES The starting point in the determination of this appeal would invariably be a critical appraisal of the provisions of Sections 1(1)(b)(i) and 2(a) & (b) of the Dishonoured Cheques (Offences) Act CAP D11, LFN 2OO4, which state as follows: 1. (1) Any person who- (a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or (b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or

14 10

15 insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall- (i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and (II) in the case of a body corporate, be sentenced to a fine of not less than N5,000. (2) For the purposes of subsection (1) of this section- (a) the reference to anything capable of being stolen shall be deemed to include a reference to money and every other description or property, things in action and other intangible property; (b) a person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shah be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified. 11

16 It is glaring from the above that for the Appellant to succeed in a charge under Section 1 (1) (b)(i) of the Dishonoured Cheques (Offences) Act CAP D11, LFN 2004, the following ingredients must be proved: 1. That the accused person obtained credit for himself 2. That the accused person issued a cheque to the complainant. 3. That upon presentation, the cheque was dishonoured on the ground that there was insufficient funds standing to the credit of the accused person. 4. That the cheque was presented not later than three months from the date of issuance. The onerous task before this Court is to ascertain whether the Appellant sufficiently discharged the onus placed on it by law in proof of its case. To do so, I shall have recourse to the testimonies of PW1 (the Complainant), and the Respondent. At pages 117 to 119 of Record, PW1 stated inter alia: "... I approached the accused for assistance in accommodating my goods in his store pending when I secure another shop. The accused agreed to help me. On 20th January, 2011 I conveyed my goods to Ibe's place. 12

17 The goods were electronics and furniture consisting of new televisions, home theatre, TV stand and tables valued at N874,000. Ibe, the accused received and verified all the goods himself I stayed away from Lokoja for months when I learnt that the ownership of my shop has changed I hurriedly came back and fortunately took the shop from the new owner. I went to the accused's place to retrieve my goods as agreed but to my utter dismay what I got was disappointment and betrayal. The accused had sold all the goods that I entrusted in his care without my consent and converted the proceeds to his own use...after several months of my persistent demands, the accused offered to pay me by cheque. He wrote and signed for me a post dated UBA cheque. The cheque was dated id August, 2011 and the value on the cheque was N450, 000 as part payment. On the due date I took the cheque to UBA and presented it at the counter for payment, the Cashier at the counter after verification returned the cheque to me and told me that the owner of the account does not have money in his account and therefore he could not pay me. 13

18 I notified the accused of the development. He neither disputed nor refuted the bank's assertion which implies that he was aware that he had no money in his account. Subsequently, Ibe issued me another UBA cheque as part payment. The cheque was dated 20th October, The monetary value on the cheque was N224, 000. Again I took the cheque to UBA for payment. The Cashier at the counter could not pay me after the verification of the cheque due to unavailability of funds in the account... I went to the accused and demanded for explanation... His attitude suggested that he was not surprised that his cheque failed. After several months he issued me another cheque again dated 5th June, 2012 for N200,000. I reluctantly accepted the cheque owing to the previous unpleasant experiences with his cheques. However, I advised myself that since my previous attempts and efforts to realize the payment of the cheques failed, doing so through my bank may yield positive result hence I deposited the cheque in my account at Oceanic Bank Plc on 5th June 2012, hoping that my account will be credited 14

19 with N200,000. Days later, I received SMS alert from my bank. One of the SMS notified me of the charges debited on my account due to the cheque transaction. The other message was an information that my cheque was returned uncleared. I went to the bank for clarification. They told me at the bank using their word that the drawer of the cheque does not have sufficient funds in his account, therefore the cheque could not clear. Consequently, they returned the cheque to me stamped and marked DAR'. The three cheques were tendered in evidence and marked as Exhibits 1, 2, and 3. On his part, the Respondent in his extra judicial statement (Exhibit 5) stated inter alia at page 6: "...I know one Ugochukwu...Sometime in 2012, he do supply me electronics to sell for him...i issued a cheque of N200,000 to Ugochukwu and I later paid the N200,000 to Ugochukwu and I later paid the money into his account on 3/10/2012. I issued the money on 5/6/2012 and paid the money on 3/10/2012. I paid the money after the presentation of the cheque. 15

20 So far, I am owing him N600, Six Hundred Thousand Naira only." He testified at page 134 of the Record, inter alia thus: "..I know the PW1, Ugochukwu Orakwe Sometime ago, we had a business transaction. We are into supply of electronics. The 'we' I am referring to is Heritage Dynamic Concept Ltd. The PW1 is one of the company's suppliers and after the supply the company issued him some cheques in view of the supplies. He was asked not to present any of the cheques until we call him for presentation or until he calls us. To my greatest surprise, he called me that the company cheques was presented and it was dishonoured.." Under cross-examination, he stated inter alia at pages : "...I have seen Exhibits 1, 2, and 3. The exhibits emanated from my company. I signed Exhibits 1, 2 and 3. My company issued them to PW1. There is nothing on the face of Exhibits 1, 2, and 3 that says that the cheques should not be presented to the Bank on dates which they are drawn. The cheques are issued as post dated cheques to PW1. 16

21 Post dated cheques have due dates... I issued the cheque as an agreement for the transaction..." From the above, it is not in dispute that the Respondent issued Exhibits 1, 2, and 3 in favour of the P.W.1. It is also common ground that the Exhibit 3 was returned to the P.W.1 (the Complainant) unpaid. The implication of that was that the cheque issued in favour of the P.W.1 was dishonoured for reason of insufficiency of funds to the Respondent's credit. The Trial Court, in addressing this issue, held thus at pages : "...However, a cursory look at the cheques, particularly the ones in the first two charges and which were marked as Exhibits 1 and 2 will show no mark of any receiving bank on them. In other words, there is nothing to show on the face of the said cheques that they were ever presented for payment. To make matters worse, no official of any of the receiving bank was called to testify about whether the cheques were ever presented for payment... Therefore, in the absence of any proof that Exhibits 1 and 2 were presented for payment and dishonoured, it means that the prosecution has failed to prove an essential ingredient and the first two charges must fall..." 17

22 I am in total agreement with the findings of the Trial Court on this score. It is the law, as rightly stated by learned counsel to the Appellant that the prosecution need not call a host of witnesses in proof of its case, as the evidence of a single witness, if believed by the Court, can establish a criminal case. See NKEBISI v. STATE (2010) 5 NWLR (PT. 1188) 491 EFFIONG v. STATE (1998) 8 NWLR (PT. 562) 362. It is however the trite, that it is incumbent on the prosecution to call a witness whose testimony will determine the case one way or another. Such a witness, known as a vital witness, is key to the success of the prosecution's case. see: IMHANRIA v. NIGERIAN ARMY 1 (2007) 14 NWLR (PT 1053) 76. In the instant case, the absence of any markings to show that Exhibits 1 and 2 were presented and dishonoured, and the failure of the Appellant to call any of the staff of the receiving bank to further clarify the issue, is fatal to the case of the Appellant in respect of the first two charges, as rightly held by the Trial Court. 18

23 The case is however different, with regards to Exhibit 3. There is ample evidence on record, that the said cheque was presented and dishonoured. It is also not in doubt that the said cheque (Exhibit 3), was issued by the Respondent's company. At page 119 of the Record, PW1 testified inter alia: "...If I see the cheque of 3rd August, 2011, I can recognize it. It bears my name and it is a UBA Cheque. It also has the accused business name i.e. HERITAGE DYNAMIC PYRAMID CONCEPT. If I see the cheque of 2nd October, 2011 I can recognize it as it bears my name, as the payee and it has the accused business name. The last cheque also bears my name, the accused business name and the stamp." The import of the above is that the all the cheques were issued, not personally by the Respondent, but by his company, which by the way, was not made a party to this case. Consequent upon the above, there is nothing before this Court suggesting that the Respondent committed an offence under Section 1(1)(b)(i) above. The cheques issued in this case, were not personally issued by him, to bring him within the contemplation of Section 1 (1) (b)(i) of the Dishonoured Cheques (Offences) Act CAP D11, LFN

24 I am of the firm view therefore, that the guilt of the Respondent has also not been established in respect of the 3rd head of charge. I therefore resolve all the issues raised by the Appellant herein against it. In the final analysis, I find no merit in this appeal and it is hereby dismissed. The decision of the Trial Court delivered on the 2nd of July, 2015 is hereby affirmed. TANI YUSUF HASSAN, J.C.A.: I read before now the judgment just delivered by my learned brother, Hon Justice Abdu Aboki, (PJCA). I agree with the reasoning and conclusion dismissing the appeal. MOHAMMED MUSTAPHA, J.C.A.: I had the advantage of reading the draft judgment just delivered by my learned brother, Abdu Aboki, JCA. I adopt the reasons given by my learned brother and I also dismiss this appeal for lack of merit. The judgment of the trial Court delivered 2nd July, 2015 is hereby affirmed. 20

25 Appearances: H.E. Yusufu, (Ag. DPP Kogi State Ministry of Justice) with him, A.A. Hassan, (SLO), M.M. Tseja (L.O.) and Barakat F. Yahaya (L.O.) For Appellant(s) Respondent absent, but served. For Respondent(s)