ALH. ABDULLAHI SHEHU V FEDERAL REPUBLIC OF NIGERIA & ORS

Legalpedia Citation: (2024-11) Legalpedia 11375 (CA)

In the Court of Appeal

Holden At KADUNA

Mon Nov 21, 2022

Suit Number: CA/K/94/C/22

CORAM

AMINA AUDI WAMBAI JUSTICE, COURT OF APPEAL

ABUBAKAR MAHMUD TALBA JUSTICE, COURT OF APPEAL

MOHAMMED BABA IDRIS JUSTICE, COURT OF APPEA

PARTIES

ALH. ABDULLAHI SHEHU

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA
A. B. NA ALLAH RESOURCES LIMITED
SA’ADATU PETROLEUM LIMITE

RESPONDENTS

AREA(S) OF LAW

Not Available

SUMMARY OF FACTS

The Appellant along with two companies were arraigned before the High Court of Justice of Kaduna on 22 counts amended charges of fraud, obtaining by false pretences and issuance of dud cheques which they pleaded not guilty to the 22 counts charge. The learned trial Judge held that the 1^st Respondent had proved the guilt of the Appellant and the co-defendants and they were guilty of the entire 22 counts of the charge. The Appellant was sentenced to 7 years imprisonment for count 1 and 2, (two) years imprisonment for each of counts 2 – 22 and the terms of imprisonment were to run concurrently. The 2^nd defendant (A. B. Na Allah Resources Ltd) was sentenced to a fine of #5,000 in respect of Count 2 – 17 and to a fine of #50,000 only in relation to Count 1 of the charge. While the 3^rd defendant (Sa’adatu Petroleum Limited) was sentenced to a fine of #50,000 only in respect of count 1 and to a fine of #5,000 only in respect of counts 18 – 22 of the charge. Aggrieved by the judgment of the trial Court, the Appellant has lodged an appeal at this instant court.

HELD

Appeal dismissed.

ISSUES

Whether in the light of the totality of evidence led, the trial Kaduna State High Court Judge was justified in finding the Appellant guilty of the offences of obtaining by false pretences and issuance of dud cheques?

RATIONES DECIDENDI

BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF

In our criminal law, the burden of proof is on the Prosecution and it must be proved beyond reasonable doubt as mandated by the provision of Section 135(1) of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean proof beyond all iota/shadow of doubt. See generally, the cases of BANJO VS. STATE (2013) 16 NWLR (PT. 1331) 455; UMAR VS. STATE (2014) 13 NWLR (PT. 1425) 497; DIBIA VS. STATE (2017) 12 NWLR (PT. 1579) 196; AGU VS. STATE (2017) 10 NWLR (PT. 1573) 171 and THOMAS VS. STATE (2017) 9 NWLR (PT. 1570) 230. Per – MOHAMMED BABA IDRIS JCA

PROOF BEYOND REASONABLE DOUBT – WHEN IT CAN BE ATTAINED

In legal parlance, it is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable.” See the case of MAIGARI VS. STATE (2013) 17 NWLR (PT. 1384) 425. Per – MOHAMMED BABA IDRIS JCA

BURDEN OF PROOF ON THE PROSECUTION – WHETHER OR NOT THE BURDEN OF PROOF SHIFTS

In any criminal proceeding, the prosecution has the burden of establishing the guilt of the defendant beyond reasonable doubt. See Section 135 of the Evidence Act 2011. The burden remains on the prosecution and does not shift. Per – MOHAMMED BABA IDRIS JCA

PROOF BEYOND REASONABLE DOUBT – MEANING OF

Proof beyond reasonable doubt means establishing the guilt of the defendant with compelling and conclusive evidence. It does not mean proof beyond all doubt or all shadow of doubt or proof to the hilt. If the evidence is strong against a person as to leave only a remote probability in the mind of a reasonable man, the case is proved beyond reasonable doubt. Per – MOHAMMED BABA IDRIS JCA

PRINCIPLE OF NATURAL JUSTICE – PURPORT OF THE PRINCIPLE

The principle of natural justice, equity and good conscience nemo judex in causa sua, restrains the court from usurping the function of the prosecution under the Nigerian adversarial jurisprudence. That is to say, the court must be an unbiased umpire and must not descend into the arena of conflict. Per – MOHAMMED BABA IDRIS JCA

PROVING THE GUILT OF AN ACCUSED – THREE WAYS TO PROOF THE GUILT OF AN ACCUSED

In the case of OJO VS. STATE (2018) 15 NWLR (PT. 1643) PAGE 527 @ 546 PARAS A – D, the Supreme Court held that the three ways of proving the guilt of an accused are:

(a) through a voluntary confessional statement of the accused person; and/or

(b) through direct credible and reliable eyewitnesses or victims of the offence account depending on the circumstance of the offence or offences; and/or

(c) through circumstantial evidence pointing or focusing on the guilt of the accused person that he was the one or one of the persons who committed the offence or offences charged and by no other person(s) but him.”

Under our criminal jurisprudence, the Prosecution can prove the guilt of the defendant through three major ways as decided in Supreme Court case of DANJUMA VS. STATE (2019) LPELR – 47037 (SC), it was held per Bage JSC that:

“The penal code in our land gives the prosecution the choice or options for proving its case beyond reasonable doubt. A prosecutor may deploy all three options or a combination of options. The guilt of an accused maybe proved by – (i) Confessional statement of the accused; (ii) evidence of an eye witness and; (3) circumstantial evidence.”

See also, the cases of UMARU VS. STATE (2014) 13 NWLR (PT. 1425) AT 497 and IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394) PAGE 305. Per – MOHAMMED BABA IDRIS JCA

PRESUMPTION OF INNOCENCE – AN ACCUSED IS PRESUMED INNOCENT UNTIL PROVEN GUILTY

The rights of the defendant are protected under Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria which provides:

“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proven guilty.”

Per – MOHAMMED BABA IDRIS JCA

STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL TRIALS

The standard of proof in criminal trials is proof beyond reasonable doubt. The proof required is not to push a court of trial into looking for proof beyond the shadow of doubt but rather proof beyond reasonable doubt. The Respondent should be allowed to prove the charge against the Appellant. Per – MOHAMMED BABA IDRIS JCA

ESTBLISHING THE GUILT OF THE DEFENDANT – PROSECTION SHOULD ENSURE ALL THE VITAL INGREDIENTS OF THE CHARGE ARE PROVED BY EVIDENCE

It is trite that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the defendant beyond reasonable doubt and the prosecution should readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See the cases of YONGO VS. COP (1992) 4 SCNJ 113 and UCHE WILLIAMS VS. THE STATE (1992) 10 SCNJ 74. Per – MOHAMMED BABA IDRIS JCA

OBTAINING BY FALSE PRETENCES – MEANING OF

The Appellant was charged for obtaining by false pretenses and issuing dud cheques. Let us start by defining and analyzing what the offence of obtaining by false pretenses entails. In the case of EZEANI VS. FRN (2019) LPELR – 46800, Supreme Court held that:

“On the counts of obtaining by false presence, the transaction has shown clearly as follow:

That there was a pretence.

That the pretence emanated from the accused person.

That the pretence was false.

That the appellant and his co-accused person knew that it was false.

That there was an intention to defraud

That the monies obtained from the nominal complainant was capable of being stolen, and

That the appellant induced the owner of the money to transfer his whole interest in the property.”

Per – MOHAMMED BABA IDRIS JCA

THE OFFENCE OF OBTAINING BY FALSE PRETENCE – INGREDIENTS OF THE OFFENCE

In OMOREDE DARLINTON VS. FRN (2018) LPELR – 43850, the Supreme Court per Eko, JSC explained the ingredients of the offence held:

“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts:

A pretense is made by way of representation.

From the accused person.

iii. To the person defrauded.

The representation is pretence.

The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.

The accused makes the false representation with intent to defraud the victim to whom the false representation was made.

vii. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person.

viii. The property transferred is capable of being stolen i.e. is as portable. Per – MOHAMMED BABA IDRIS JCA

ISSUANCE OF A DUD CHEQUE – WHETHER OR NOT IT CONSTITUTES AN OFFENCE

On the offence of the issuance of dud cheque for which the Appellant was convicted, the Appellant has argued that there was no legal justification for his conviction. The Appellant’s defence was that he issued the cheque under duress and that no lawful obligation was owed. In the case of ONYEKUMNARU VS. FRN 2018 LPELR – 46040, it was held that it is rudimentary law that the issuance of a dud cheque is a criminal offence by virtue of the Dishonoured Cheques (Offences) Act. See also, the case of FAJEMIROKUN VS. COMMERCIAL BANK NIGERIA LTD (2009) LPELR (1231) 1 (SC). Per – MOHAMMED BABA IDRIS JCA

PRINCIPLE OF SEPARATE LEGAL ENTITY – AN ALTER EGO CANNOT HIDE UNDER THIS PRINCIPLE TO ESCAPE CRIMINAL LIABILITY

The learned counsel for the Appellant has also argued that the Appellant was sued in his personal capacity and not as the Managing Director of the 2^nd and 3^rd Respondents and thus, he could not be held liable. In the case of UDOFIA VS. COP (2020) LPELR – 51084 (CA), it was held that 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 egos. See also, the cases of CHEMIRON (INT’L) LTD VS. STABILINI VISINONI LTD (2018) LPELR – 44353 (SC) and KATE ENTERPRISES LTD VS. 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. Per – MOHAMMED BABA IDRIS JCA

VEIL OF INCORPORATION – WHEN THE VEIL OF INCORPORATION CAN BE LIFTED

It is settled law that where a company acts and its actions affects the rights of a person negatively, the veil of the company can be lifted to see and hold those behind the act liable. In the case of AKINGBADE VS. STATE (2015) LPELR – 25850, it was held that:

“It is also well settled that directors, officers and employees of a company can be criminally liable for any criminal acts that they personally commit regardless of whether they were acting in furtherance of the corporation’s interests. The directors, officers and/or employees must answer for any personal wrongdoing and cannot be shielded by the corporate entity. The court will, when the occasion demands, lift the veil of incorporation to identify wrongdoers.”

Per – MOHAMMED BABA IDRIS JCA

LIFTING THE VEIL OF INCORPORATION – MEANING OF

Lifting the “veil of incorporation” or “piercing the corporate veil” is defined in Black’s Law Dictionary, 9th Edition as:

“The judicial act of imposing personal liability on otherwise immune corporate officers, directors or shareholders for the corporation’s wrongful acts.”

Per – MOHAMMED BABA IDRIS JCA

LIFTING THE VEIL OF INCORPORATION – CIRCUMSTANCES WHEN THE VEIL OF INCORPORATION WILL BE LIFTED

The circumstance under which the “veil of incorporation” of a company may be lifted was succinctly stated in the case of ALADE VS. ALIC (NIG.) LTD & ANOR (2010) 19 NWLR (PT. 1226) 111 @ 130 E – H and 142 C – E, where the Supreme Court held per Galadima, JSC at 130 E – H that:

“One of the occasions when the veil of incorporation will be lifted is when the company is liable for fraud as in the instant case.”

Per – MOHAMMED BABA IDRIS JCA

LIFTING THE VEIL OF INCORPORATION – THE COURTS WILL NOT HESITATE TO LIFT THE VEIL OF INCORPORATION

I do not know of a formal procedure or ceremony that need to be conducted before the veil of incorporation of a corporate body can be lifted. Companies and corporate bodies are controlled by humans who act as their alter egos. Even though it is true that a company is a separate legal entity from its officers, our courts will not hesitate to lift the veil of incorporation in order to hold liable any officer who uses the company as a vehicle to perpetrate fraud. In UABOI G. AGBEBAKU VS. THE STATE (2015) LPELR – 25763 (P. 24, PARAS C – F) (CA), it was held per Otisi, JCA that:

“It is also well settled that directors, officers and employees of a company can be held criminally liable for any criminal acts that they personally commit regardless of whether they were acting in furtherance of corporation’s interests. The directors, officers and or employees must answer for any personal wrongdoing and cannot be shielded by the corporate entity. The Court will, when the occasion demands, lift the veil of incorporation to identity wrongdoers. See: FDB Financial Services Ltd v Adesoza (2002) 8 NWLR (PT. 668) 170 at 173 relied upon in Alade v. ALIC Nig. Ltd. (supra).; Adeyemi v. Lan & Baker (Nigeria) Ltd (supra).”

Per – MOHAMMED BABA IDRIS JCA

THREAT TO LIFE – A THREAT TO LIFE MUST BE BACKED WITH SOME OVERT ACT IN ORDER TO MAINTAIN AN ACTION

Back to the issue, the Appellant and DW1 testified that PW2 threatened to kill him if he did not sign the cheques. Assuming without conceding that he was indeed threatened, what overt act did PW2 do to make the Appellant so scared for his life that he signed cheques knowing fully well that once they are dishonoured it will constitute a criminal offence?

In EZEADUKWA VS. MADUKA (1997) 8 NWLR (PT. 518) 635 AT 661 (B – C), this Court per Tobi, JCA as he then was, considered the constitutional provision of right to life and held as follows:

“In order to succeed in an action… an applicant must prove that the respondent threatened to kill him. And here, mere oral threat on the part of the respondent to kill the applicant is not enough to sustain an action. The threat should be backed up with some overt act of an attempt to kill or exhibition of weapons or material capable of effecting the murder or killing of the applicant. A mere vulgar threat of an oral nature without more cannot sustain an action.”

The Appellant merely stated that he was threatened by words of mouth and that PW2 locked the door to his office and threatened to kill him if he did not sign him cheques. What overt act did PW2 do to put the Appellant in reasonable fear for his life? I do not know as I cannot see any from the record. I therefore discountenance this issue of threat. Per – MOHAMMED BABA IDRIS JCA

ADMISSIBILITY OF SECONDARY EVIDENCE – STATEMENT OF ACCOUNT IS A SECONDARY EVIDENCE HENCE NEEDS NOT TO BE CERTIFIED BEFORE IT CAN BE ADMISSIBLE

The learned Appellant’s counsel has also argued that the statement of account tendered as Exhibits 4, 5 and 10 were inadmissible for failure of being certified. The question that arises is: does a statement of account need to be certified before it can be in an admissible form?

In the case of UBN PLC VS. SPARKLING BREWERIES LTD & ANOR (2000) LPELR 6934, it was held:

“I must say straight away that in the course of trial of this case the cross-respondents Bank as borne by the several statement of account on each of those occasions when the statements of account were sought to be tendered, the cross-appellants objected pointing out that they are secondary evidence and that the provisions of the Section 97 of the Evidence Act were not satisfied. These statements of account were however typed on the original letter headed papers of the cross-respondent Bank. This ostensibly made the court to admit them as original statement of account and as primary evidence. It seems to me that the only way a statement of account may be described as an original is when all that is sought to be proved is the statement of account as a document in existence. But if what is sought to be proved as in this case is the entries in a banker’s book or the contents of the records of a bank then the statement of account is secondary evidence. Consequently, for it to be admitted in evidence the provisions of Section 97 of the Evidence Act, Cap. 112 of the Laws of the Federation of Nigeria, 1990 must be met. See Yesufu v. A.C.B. (1976) 1 All NLR (Reprint) 328; A.C.B. v. Oba (1993) 7 NWLR (Pt. 304) 173 at 182.

In the case of UNION BANK VS. MAISHINKAFA (2022) LPELR – 57083 (CA), it was held:

“In the case of Mrs. Elizabeth N. Anyaebosi v. R. T. Briscoe (Nig) Ltd (1977 – 1988) 2 SCJE page 511 at 535, the Court held that:

“A computerised statement of account does not fall into the category of evidence absolutely inadmissible by law as it is admissible as secondary evidence under Section 97(2) (now S. 90(1)) of the Evidence Act in respect of the documents stated in Section 97(1), (d) or (g) (Now S. 89(1)) of the Act.”

And in the case of Narindex Trust Ltd & Anor v. Nigerian Intercontinental Merchant Bank Ltd (2001), 5 SCM 126, the Supreme Court held that it is not necessary according to law that the words of the Section 97(2)(e) must be strictly followed word to word before secondary evidence of entries in the ledger of the bank is admitted in evidence once there is substantial compliance.”

From the above cited cases, it is clear that the statement of account which were tendered as Exhibits 4, 5 and 10 respectively, need not be certified before they can be said to be in an admissible form as they are secondary evidence. A statement of account is computer generated and thus, was in an admissible form and need not be certified. Per – MOHAMMED BABA IDRIS JCA