CORAM

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Uzo Ifeyinwa Ndukwe-Anyanwu JCA

Joseph Olubunmi Kayode Oyewole JCA

Joseph Eyo Ekanem JCA

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PARTIES

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ONYEKACHI NWOSU

APPELLANTS 

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FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, FINANCIAL CRIME, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant was arraigned before the trial Court initially on a charge containing eight counts of various offences which charge was amended a couple of times with the final version being the 2nd amended charge filed on the 25th January, 2019.

The six counts faced by the Appellant at trial comprised one count of forgery and another count of altering the forged document, both contrary to Section 1(2)(c) of the Miscellaneous Offences Act, Cap M17, Laws of the Federation, 2004 while the remaining four counts were for being connected with the grant of loan knowing same to have defective collateral contrary to Section 15(1)(a)(iii) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2, Laws of the Federation, 2004 and punishable under Section 16(1)(a) thereof.

The learned trial Judge delivered a considered judgment wherein the Appellant was found guilty and sentenced accordingly. Dissatisfied with the decision, the Appellant invoked the appellate jurisdiction of this court through this appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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Whether from the totality of the evidence led, the prosecution proved its case against the Appellant beyond reasonable doubt?

 

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RATIONES DECIDENDI

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FORGERY – ESSENTIAL INGREDIENTS OF THE OFFENCE OF FORGERY

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Section 1(2)(c) of the Miscellaneous Offences Act (supra) provides thus: Any person who makes or utters any forged document, cheque, promissory note or other negotiable instrument, knowing it to be false or with intent that it may in any way be used or acted upon as genuine, whether in Nigeria or elsewhere to the prejudice of any person or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act or thing, whether in Nigeria or elsewhere, shall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years without the option of a fine.

The essential ingredients or elements to be established before the offence created herein could be said to have been proved beyond reasonable doubt are as follows:

(i) That the accused alters or forges a document, cheque, promissory note or other negotiable instrument.

(ii) That the accused person knew the document, cheque, promissory note or other negotiable instrument to be false.

(iii) That the accused person presented the said document, cheque, promissory note or other negotiable instrument to the other party with the intention that it could be acted upon in the belief that it is genuine. And

(iv) That the act of the accused was to the prejudice of any person or with intent that any person may, in the belief that the said document, cheque, promissory note or other negotiable instrument was genuine be induced to do or refrain from doing any act or thing, whether in Nigeria or elsewhere.

This much was similarly amplified by this Court with respect to the same offences of forgery and altering under Section 467(2)(c) the Criminal Code in ODIAWA VS. FRN (2008) LPELR 4230 (CA), ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 and WAGBATSOMA VS. FRN (2015) LPELR- 24649(CA). – Per J. O. K. Oyewole, JCA

 

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CHARGE – WHETHER THE PROSECUTION CAN AMEND A CHARGE

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The law is trite that the prosecution is at liberty to amend a charge as often as may be necessary any time prior to judgment. See UGURU VS. THE STATE (2002) LPELR-3325 (SC). – Per J. O. K. Oyewole, JCA

 

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BRIEF – ESSENCE OF A BRIEF OF ARGUMENT

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It is unacceptable for counsel to raise in the brief of arguments issues of facts which were meant for cross-examination but never brought up. A brief is meant to contain arguments in support of the identified issues in the appeal. See NWOKORO & ORS V. ONUMA & ANOR (1990) LPELR-2125(SC) at 15-16. – Per J. O. K. Oyewole, JCA

 

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COLLATERAL – EFFECT OF ISSUING OUT A LOAN OR FACILITY WITH A DEFECTIVE SECURITY OR COLLATERAL

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The provisions of Section 15(1)(a)(iii) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act (supra) are as follows:

1) Any director, manager, officer or employee of a bank who- (a) knowingly, recklessly, negligently, wilfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person- (iii) with a defective security or collateral is guilty of an offence under this Act.

Section 16(1)(a) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act is as follows:

(1) A person who commits an offence under Section 15 of this Act is liable on conviction, subject to Subsection (4) of this Section, in the case of an offence-

(a) under Subsection(1)(a),(b)or(c) of that Section, to imprisonment for a term not exceeding five years without an option of a fine; To succeed here, the prosecution must show:

(i) That the Appellant was a director, manager, officer or employee of a bank;

(ii) That he knowingly, recklessly, negligently, wilfully or otherwise grants, approves the grant, or is otherwise connected with the grant or approval of a loan, an advance, a guarantee or any other credit facility or financial accommodation to any person. And

(iii) That the said loan, advance, guarantee or any other credit facility or financial accommodation had a defective security or collateral. See ONAKOYA VS FRN (supra). – Per J. O. K. Oyewole, JCA

 

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EVIDENCE – WHETHER ARGUMENT OF COUNSEL CAN CONSTITUTE A SUBSTITUTE FOR ADDUCED EVIDENCE

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…arguments of counsel cannot constitute a substitute for adduced evidence. Indeed, counsel is only master of the law and cannot be permitted to delve into the presentation of facts which were not supported by the adduced evidence. See SALAWU YOYE VS OLUBODE & ORS (1974) 10 SC 209 at 215 and IBIKUNLE VS STATE (2007) LPELR-8068 (SC). – Per J. O. K. Oyewole, JCA

 

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CASES CITED

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NOT AVAILABLE

 

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Miscellaneous Offences Act, Cap M17, Law of the Federation of Nigeria, 2004

3. Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act, Cap F2, Laws of the Federation, 2004

4. Evidence Act, 2011

5. Administration of Criminal Justice Act, 2015

 

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