CORAM
PARTIES
NAHEL BERNARD MONSOUR APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant who was at all material times the Chief Executive and the alter-ego of the Co-Defendant, Hinz Catering and Hospitality Co. Nig. Ltd., was arraigned in the High Court of Justice Lagos State, with a Co-Defendant on a three count charge of issuance of cheques totaling N25, 346,370, to the Law Firm of C. O. Toyin Pinheiro and Co., being the Defendant who was appointed manager of the properties of Worldwide Project and Properties Ltd. The cheques, which were for the latter’s benefit, were dishonoured on account of lack of funds in the account on which the cheques were issued contrary to section 1(1) of the Dishonoured Cheques Offences Act). The Respondent case was that the Appellant and Co-Defendant as the erstwhile appointed property managers of Worldwide Projects and Properties Ltd., collected the sum of N25, 346,370, from customers on behalf of the Company which they were yet to remit before their appointment was terminated and replaced with the Law Firm of C.O. Toyin Pinheiro and Co. with instructions to recover the fund from the Appellant and Co-Defendant. They issued three cheques to the Law Firm, in a bid to refund the monies but the said cheques were dishonoured due to the lack of funds and/or insufficient funds in the accounts of the Appellant and the Co-Defendant with First Bank of Nigeria Plc. Consequently, the Appellant was arrested by the EFCC and detained for a period of about 3 months. Upon consideration of the evidence in the case and the final written addresses of the Appellant, the Co-Defendant and the Respondent, the court below believed and accepted the Respondent’s case or version and found the Appellant and the Co-Defendant guilty as charged and sentenced the Appellant to imprisonment for two years, without the option of a fine. The Appellant being aggrieved with the decision of the court below has filed a notice of appeal.
HELD
Appeal Dismissed
ISSUES
Not Available
RATIONES DECIDENDI
ISSUANCE OF CHEQUE – IMPLIED REPRESENTATION OF AN ISSUED CHEQUE
“In substance the representation is that by issuing a cheque the drawer believes the facts are that, as far as can reasonably be foreseen, the cheque will be honoured on presentment. For the learned authors of Halsbury’s Laws of England (Fourth Edition, 2006 Reissue or Lord Mackay of Clashfern’s Edition) 277 aptly state that –
“By giving a cheque, whether post-dated or not, the drawer impliedly represents that the state of facts existing at the date of delivery is such that in the ordinary course of events the cheque will be met on presentation for payment on or after the date specified in it: R v. Gilmartin (1983) QB 953, 76 Cr App. Rep. 238 CA; and see Metropolitan Police Comr. v. Charles (1977) AC 177 at 182, 63 Cr App Rep. 252 at 260 – 261, HL, per Lord Diplock; R v. Hazelton (1874) LR 2 CCR 134; R v. Page (1971) 2 QB 330 at 333, 55 Cr. App. Rep. 184 at 190, CA.”
JUDGMENT OF A COURT- WHETHER THE JUDGMENT OF A COURT SHOULD BE READ IN ISOLATION
“It is trite that the judgment of a Court must be read as a whole or harmoniously, not in isolation to the other parts from the judgment vide Akaighe v. Idama (1964) All NLR (Reprint) 317 at 322, Mbani v. Bosi (2006) 11 NWLR (pt.991) 400 at 417, Adebayo v. A.-G., Federation (2008) All FWLR (pt.412) 1195, Adegbuyi v. A.P.C. (2014) All FWLR (pt.761) 1486 at 1504.” –
CONVICTION – WHEN CAN A CONVICTION BE SET ASIDE?
“A conviction may only be set aside, if a finding or holding occasions a substantial miscarriage of justice vide the proviso to section 19(1) of the Court of Appeal Act 2004, as amended, which whittles down or curtails the scope of section 19 thereof; and the test for establishing the occurrence of substantial miscarriage of justice was aptly stated in the case of Abdu Dan Sarkin Noma v. Zaria Native Authority (1963) N.N.L.R. 97 at 102 thus –
“Might the trial court have acquitted after directing itself properly on the evidence properly admitted at the hearing, and on a reasonable view of that evidence”; or more fully and adapting the words of Channel, J., in Bateman’s case “There is a failure of justice not only where the Court comes to the conclusion that the conviction was wrong, but alos when it is of opinion that the error or omission in the court below may reasonably be considered to have brought about the conviction, and when, on the whole facts and in the absence of the error or omission, the trial court might fairly and reasonably have found the appellant not guilty”.
See also Ononuju v. State (2013) 6 S.C.N.J. 458.
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APPELLATE COURT – WHETHER AN APPELLATE COURT IS CONCERNED WITH THE REASONING PROCESS IN THE DECISION OF THE TRIAL COURT
“An appellate Court is more concerned with whether the decision arrived at is correct not necessarily with the reasoning process in the decision made by trial court vide Ukejianya v. Uchendu 13 W.A.C.A. 45 at 46, Taiwo and Ors. v. Sowemimo (1982) 5 S.C. 60 at 74 – 75, Ibuluya v. Dikibo (2011) 3 W.R.N. 1 at 43.” –
OFFENCES IN RELATION TO DISHONORED CHEQUES – SECTIONS 1 AND 2 OF DISHONURED CHEQUES (OFFENCES) ACT
“Sections 1 and 2 of the Act are pertinent to the discussion. For ease of reference, I copy them below –
“1.Offences in relation to dishonoured cheques, etc.
(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 of 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 was issued, shall 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.
(3)A person shall not be guilty of an offence under this section if he proves to the satisfaction of the court that when he issued that cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in subsection (1) of this section.
2.Offences by body corporate
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 part of any director, manager, secretary or other similar officer, 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”.
Section 2 thereof covers a situation a director, manager, secretary or other similar officer, servant or agent of a body corporate is in league with the body corporate in the commission of an offence which would also make the human being concerned equally guilty of the offence.
RECORD OF COURTS – PARTIES AND COURTS ARE BOUND BY THE RECORD OF COURT
“Parties and the court are bound by the record of the court.” –
CONVICTION – IMPLICATION OF CONVICTING AN ACCUSED PERSON ON A WRONG SECTION OF AN ENACTMENT
“In any event, had the wrong section of the enactment been used in convicting the appellant, the correct or right provision of the Act would have been substituted to fit the evidence adduced and accepted by the court below vide Egunjobi v. F.R.N. (2013) 3 NWLR (pt.1342) 534 at 579, Olatunbosun v. State (2013) 34 W.R.N. 1 at 30’.
SENTENCE – WHEN DOES A SENTENCE OF IMPRISONMENT COMMENCE?
“Section 315 of ACJL 2011 of Lagos State provides –
“A sentence of imprisonment takes effect from and includes the whole of the day on the date on which it was pronounced, provided that in reckoning the length of imprisonment, the Court SHALL direct that any period of detention prior to conviction SHALL be taken into consideration”.
INTERPRETATION OF PROCEDURAL LAWS – DUTY OF COURTS IN THE INTERPRETING OF PROCEDURAL LAW
“Procedural laws are often enacted for the protection of a defendant and must receive generous/liberal and/or strict interpretation mandatorily learning in favour of the defendant vide Okegbu v. State (1979) N.S.C.C. 151 at 174 following the English case of Secretary of State for Defence v. Warn (1968) 3 W.L.R. 609 at 614. See also Ohuka (supra) and Lambert (supra) cited by the appellant”.
‘DETENTION’ –MEANING OF ‘DETENTION’
“The phrase ‘detention’ means the state of being kept in a place and prevented from leaving vide Oxford Advanced Learners Dictionary 7th Edition page 399. Detention in EFCC custody and detention on remand by court order would, in my view, answer to the intendment of the phrase ‘detention’ used in sections 315 of ACJL of Lagos State 2011.” –
OFFENCE OF ISSUANCE OF DISHONOURED CHEQUES – ELEMENTS THAT CONSTITUTES THE OFFENCE OF ISSUANCE OF DISHONOURED CHEQUE
“In the case of Abeke v. State ( cited in the lead judgment), also reported in (2012) 1 BFLR, 1, the Supreme Court: per Onnoghen, JSC (now CJN) at 16, after setting out the provisions of section 1(1)(b) of the Dishonoured Cheques (Offences) Act, held that:
“ From the above, the duty on the prosecution is to prove:-
That appellant obtained credit by himself;
That the cheques was presented within three months of the date thereon; and
That on presentation, the cheque was dishonored on the ground 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.”
The above, therefore, are the essential ingredients or elements which constitute the offence under the section and which the law requires the prosecution to prove beyond reasonable doubt in order to secure a conviction thereof in the absence of a cognizable defence by the Appellant. The defence put up by the Appellant was untenable and the trial court was on a firm terrain of the law and so right to have convicted the Appellant for the offence. See also Abdulrahim v. C.O.P Rivers State (2013) 4 BFLR,1, Paddy Eke v. FRN (2013)IBFLR, 262.”-
CASES CITED
Not Available
STATUTES REFERRED TO
Dishonured Cheques (Offences) Act|