JOSKU NIGERIA LIMITED v. IJUMU LOCAL GOVERNMENT & ORS
April 11, 2025ONYIA IFEANYI V FEDERAL REPUBLIC OF NIGERIA
April 11, 2025Legalpedia Citation: (2018) Legalpedia (CA) 40217
In the Court of Appeal
HOLDEN AT ENUGU
Sun Mar 18, 2018
Suit Number: CA/L/658C/2017
CORAM
PARTIES
ROWAYE JUBRIL APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
This Appeal is against the Judgment of the High Court of Lagos State. Brila Energy Limited, the 2nd Defendant at the lower Court; was one of the Companies investigated for fraud subsidy on Premium Motor Spirit (PMS) by the Economic and Financial Crimes Commission (the EFCC) based on the Petitions sent to the EFCC by the then Minister of Petroleum Resources, Allison Madueke, and some Civil Society Organisations. The Appellant, as the 1st Defendant before the lower Court, is the Managing Director and the alter ego of the 2nd Defendant. At the conclusion of investigation, the Appellant and Brila Energy Limited were arraigned for trial on a 13 count charge for obtaining money by false pretences, contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, Forgery contrary to Section 467(2) (k) of the Criminal Code Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468 of the Criminal Code Cap. C17, Laws of Lagos State. They pleaded not guilty and the matter proceeded to trial. To prove its case, the Respondent called twenty witnesses and tendered forty-three exhibits. At the close of the Respondent’s case, the Appellant and the 2nd Defendant entered a “No Case Submission” which was however overruled. Thereupon, the lower Court called upon the Appellant and the 2nd Defendant to enter their defence. However, they opted to rest their cases on that of the Respondent. The lower Court thereafter delivered its Judgment wherein it found the Appellant and the 2nd Defendant guilty on all counts. The Appellant was sentenced to ten years imprisonment on the 1st count and eight years imprisonment on counts two to thirteen of the charge, the terms of imprisonment were to run concurrently. The 2nd Defendant, Brila Energy Limited, was ordered to refund to the Federal Government of Nigeria the sum of N963, 796, 199.85k (Nine Hundred and Sixty-Three Million, Seven Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira, Eighty Five Kobo), being the amount found to have been fraudulently obtained. Dissatisfied with the Judgment of the trial Court, the Appellant has appealed.
HELD
Appeal Dismissed.
ISSUES
Whether the Appellant was rightly charged, prosecuted and convicted along with the 2nd Defendant (a limited liability Company) with respect to the crimes alleged against the company? Whether the learned trial Judge was right or wrong to have relied on the inadmissible/Hearsay evidence of PW 17 and Exhibit P7 to hold that the prosecution proved beyond reasonable doubt the offences of forgeries of 2 (two) Saybot Concrement documents (pages 26 & 29 in Exhibit Pl) against the Appellant? Whether the Learned Trial Judge was right or wrong when she held that the prosecution proved beyond reasonable doubt the offence of forgeries of 4 Inspectorate Marine Services documents (Exhibit P8) against Appellant? Whether the learned trial Judge was right or wrong when she held that the prosecution proved beyond reasonable doubt, the offence of uttering 2 (two) Saybolt Concrement documents (pages 26 & 29 in Exhibit p1) and 4 Inspectorate Marine services documents (Exhibit p8) against the Appellant? Whether the learned trial Judge rightly admitted in evidence and relied on the internet print-out copy of Lloyds List of Intelligence Report/Database (Exhibits p23- 25) as well as the hearsay testimony of PW9 who tendered same in evidence, for the purpose of establishing the truth of prosecution’s case/allegation that the Mother vessel MT LIMAR was not at the port of loading and point of transhipment at the relevant times stated in the bills of lading? Whether the learned trial Judge rightly or wrongly admitted in evidence, accorded probative value to Exhibit p41 series, which were documents made in Greece, in Greek language and purportedly translated to English language in order to establish the truth of the allegation of non-importation of fuel by the 2nd Defendant and non-STS transfer of fuel by the Mother Vessel MT overseas Limar to 1st Daughter vessel Delphina? Whether the learned trial Judge rightly or wrongly held that the prosecution proved beyond reasonable doubt, the offence of Advance Fee Fraud of the sum of N963, 796,119.85 against the Appellant? Whether the material and unresolved contradictions in the evidence of prosecution witnesses (PWs) were sufficient to cast doubt in the guilt of the Appellant? Whether the learned trial Judge rightly or wrongly admitted and acted on irrelevant and highly prejudicial evidence of Appellant’s reputation/business relationship as Director and Shareholder of Inter oil Nigeria Limited and Ports and Marine Cargo Experts Limited? Whether the failure of the learned trial Judge to consider the evidence of prosecution witnesses which is in favour of the innocence of the Appellant and cast doubt in the prosecution’s case did not result in miscarriage of justice? Whether the sentence imposed by the Court below [on the Appellant] who has no Criminal record is an issue given the circumstances of the case is excessive?
RATIONES DECIDENDI
COMPANY LAW
VEIL OF INCORPORATION – WHETHER THE VEIL OF INCORPORATION OF A LIMITED LIABILITY COMPANY CAN BE LIFTED FOR THE PURPOSES OF ATTACHING LEGAL RESPONSIBILITY OR LIABILITY TO ITS OFFICERS CARRYING ON THE USUAL BUSINESS OF THE COMPANY
“Section 65 of the Companies and Allied Matters Act, 1990 provides-
“Any act of the members in general meeting, the board of directors or of a managing director while carrying on in the usual way the business of the company, shall be treated as the act of the company itself and the company shall be criminally and civilly liable therefore to the same extent as if it were a natural person. Provided that:
(a) The company shall not incur civil liability to any person if that person had actual knowledge at the time of the transaction in question that the general meeting, board of directors, as the case may be had no power to act in the matter or had acted in an irregular manner or if, having regard to relationship with the company, he ought to have known of the absence of such powers or the irregularity.
(b) If in fact a business is being carried out by the company, the company shall not escape liability for acts undertaken in connection with that business merely because the business in question was not among the business authorized by the company’s memorandum.”
It is evident from these provisions that a limited liability company or an incorporated company is a different legal entity from its management. It has a separate and distinct life and existence. In other words, the officers and members of an incorporated company are covered by the company’s veil of incorporation and that veil cannot be lifted for the purpose of attaching legal responsibility or liability to its officers who are carrying on the usual business of the company. See also Oriebosi V Andy Sam Investment Co. Ltd (2014) LPELR-23607(CA) 23-24; Fairline Pharmaceutical Industries Ltd V Trust Adjusters Nig. Ltd (2012) LPELR 20860(CA) 30; Chartered Brains Ltd V Intercity Bank Plc (2009) LPELR 8697(CA) 18-22; Ogbodo V Quality Finance Ltd (2003) 6 NWLR (PT. 815) 147: Erebor V Major & Co. (Nig) Ltd (2000) LPELR-9129(CA) 14.”
WORDS AND PHRASES
ALTER EGO – DEFINITION OF ‘ALTER EGO’
“Also, the Black’s Law Dictionary 8th Edition at page 89, defines ‘alter ego’ thus:
‘A corporation used by an individual in conducting personal business, the result being that a Court may impose liability on the individual by piercing the corporate veil when fraud has been perpetrated in someone dealing with the corporation.’
COMPANY LAW
VEIL OF INCORPORATION – EXCEPTIONS TO THE RULE ON THE VEIL OF INCORPORATION
“Nonetheless, in-roads have long since been made into this absolute position of the law such that there are exceptions to the rule. For instance, a director or managing director of a company shall be held liable or responsible when it is alleged and proved that he is a surety or a guarantor to the trade debt of the company. See Cooperative Bank Ltd V Obokhare (1996) 8 NWLR (PT. 468) 579; & Afribank Nig Ltd V Moslad Enterprises Ltd (2007) LPELR-5126(CA) 19-10, PARAS G-D, Akaahs, JCA (as he then was).
Another exception has also been created by Section 10(1) of the Advance Fee Fraud Act which provides –
‘Where an offence under the Act has been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in such capacity, he, as well as the body corporate where practicable shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.’
This therefore constitutes an exception to the law that the act of an officer of a company such as a director, manager or the like, shall be treated as the act of the company itself and he shall be criminally or civilly liable for such acts. It is therefore no surprise that this Court, in the recent case of Nwude V FRN (2015) 5 NWLR (PT.1505) 471 AT 482, when faced with similar facts and circumstances, held thus:
‘Under Section 10 of the Advance Fee Fraud and other Related Offences Act, 1995, where an offence under the Act which has been committed by a body corporate is proved to have been committed on the instigation or with the connivance of or attributable to any neglect on the part of a director, manager, secretary, or other similar officer of the body corporate, or any person purporting to act in any such capacity, he, as well as the body corporate, where practicable shall be deemed to have committed that offence and shall be liable to be proceeded against and punished accordingly.’”
COMPANY LAW
LIFTING THE VEIL OF INCORPORATION – CIRCUMSTANCES THAT WILL WARRANT LIFTING THE VEIL OF INCORPORATION
“In addition, I agree with learned Counsel to the Respondent that the decision of the Supreme Court in Oyebanji v State (2015) LPELR-24751(SC) is firmly applicable to the facts in the instant Appeal. In that case, the managing director of the company sought to escape liability from an allegation of stealing levelled against him by hiding behind the veil of incorporation, contending that by receiving monies for the purchase of tyres, tubes and granulated sugar from the complainant to the Police and defaulting on the agreement, it acted for the Company Baminco Nig Ltd, and so could not be held liable for the acts of the company. In upholding the decisions of the trial Court as well as that of the Court of Appeal, the Supreme Court, per Galadima, JSC held thus at pages 19-21 of the E-Report as follows:
‘The Courts below rightly disregarded the corporate entity of the Baminco (Nig) Ltd and paid regard to the entities behind the legal facade or “veil” of incorporation in the interest of justice… In my respectful view, the veil of incorporation ought to be lifted in the interest of justice and in the circumstances of this case. There can be no better instance when the corporate veil can be lifted as in this case. The Court will not allow a party to use its company as a cover to dupe, defraud or cheat innocent individual or a company who entered into a lawful contract with it only to be confronted with defence of the company’s legal entity as distinct from its directors. As it has been observed elsewhere, most companies in this country are owned and managed solely by an individual, while registering the members of his family as the shareholders. Such companies are nothing but one-man business! Hence there is the tendency to enter into contract in such company’s name and later on turn around to claim that he was not a party to the agreement since the company is a legal entity. See Akinwumi Alade v Alice (Nigeria) Ltd & Anor (2010) 12 SC (Pt. II) 59.’ (Emphasis supplied)
In his own contribution to the Judgment, Fabiyi, JSC also stated inter alia thus at pages 25-26 of the E-Report –
‘Let me start my remarks by pointing it out right away that the appellant qualifies as the ‘alter ego’ of Baminco Nigeria Ltd…’Alter ego’ is said to mean ‘second self’. Under the doctrine of alter ego, [the] Court merely disregards [the] corporate entity and holds [the] individual responsible for [the] act knowingly and intentionally done in the name of the corporation. Ivy v. Plyler 246 Cal. App. 2d 548. To establish the doctrine, it must be shown that the individual disregarded the entity of the corporation and made it a mere conduit for the transaction of his own private business. The doctrine simply fastens liability on the individual who uses the corporation merely as an instrumentality in conducting his own personal business. Liability springs from fraud perpetrated not on the corporation but on third persons dealing with the corporation… Perhaps I should further say that the appellant was the directing mind and/or arrow head of Baminco Nigeria Limited when the role carried out by him is properly considered. The appellant was the human personality behind the activity of the company… There is no shred of doubt that the fraudulent acts of the appellant called for the lifting of the veil of his company which opened him up for prosecution before the trial Court… He was rightly found guilty of stealing by conversion of the stated money.’ (Emphasis supplied)”
LAW OF EVIDENCE
SIGNATURE ON DOCUMENTS – IMPORT, SIGNIFICANCE AND CONSEQUENCE OF A SIGNATURE ON DOCUMENTS
“In addition to the provision of Section 10(1) of the Advance Fee Fraud Act, this Court in the case of Tsalibawa V Habiba (1991) 2 NWLR (Pt. 174) 461, per Ogundere, JCA (as he then was) stated thus on the import, significance and consequence of a signature on a document:
‘It is common knowledge that a person’s signature, written names or mark on a document, not under seal, signifies an authentication of that document that such a person holds out himself out as bound or responsible for the contents of such a document. R v. Kent Justices L.R. 8 Q.B. 305.’”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ORAL EVIDENCE – RATIONALE FOR REQUIRING THAT ORAL EVIDENCE MUST BE DIRECT
“It is correct as submitted, that Section 126(a)-(d) of the Evidence Act, 2011, provides inter alia that “oral evidence must, in all cases whatever, be direct”. The rationale for the rule can be said to be
(1) The unreliability of the original maker of the statement who is not in Court and not cross-examined;
(2) The depreciation of the truth arising from repetition;
(3) Opportunities for fraud;
(4) The tendency of such evidence to lead to prolonged inquiries and proceedings;
(5) Hearsay evidence tends to encourage the substitution of weaker evidence for stronger evidence.
However, there are numerous exceptions to the rule, for instance-
(a) Dying declarations under Section 39(a) – Alli V Alesinloye (2000) 4 SC (PT. 1) 111;
(b) Evidence of traditional and communal history of land under Section 43 – Anka V Lokoja (2001) 4 NWLR (PT.702) 178;
(c) Admissibility of documents under Section 83 – Anyaebosi V Rt Briscoe (Nig) Ltd (1987) 6 SC 15;
(d) Affidavit evidence under Section 108;
(e) Res Gestae under Section 4;
(f) Expert opinion under Sections 68-71; etc.”
–
COMPANY LAW, COURT, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
BUSINESS RECORDS – WHETHER COURTS ARE PERMITTED TO ADMIT BUSINESS RECORDS IN EVIDENCE
“In addition, and more relevant to these deliberations, Sections 41 and 51 of the Evidence Act provide as follows
‘41. A statement is admissible when made by a person in the ordinary course of business, and in particular when it consist of any entry or memorandum made by him in books, electronic device kept in the ordinary course of business, or in the discharge of a professional duty, or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind, or of a document used in commerce written or signed by him, or of the date of a letter or other document usually dated, written or signed by him.’
‘51. Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.’
By this provision, a Court is permitted by law to admit in evidence records, as was done in the instant case, which records are said to have been meticulously kept in the course of the business of a company, and the issues relating thereto are brought before the Court upon an inquiry. In such a case, it is immaterial that the maker of the entries in the record does not testify in such a business concern.”
COMPANY LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
BUSINESS RECORDS – WHETHER AN OFFICER OF A COMPANY CAN GIVE EVIDENCE ON THE CONTENTS OF A BUSINESS RECORD
“By a combination reading of Sections 41 and 51 of the Evidence Act, records maintained by organizations and business concerns (such as corporations and bank) in respect of their day to day activities are business records which any of its officers, and not necessarily the maker, can give evidence of its contents.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF ELECTRONIC EVIDENCE – CONDITIONS FOR THE ADMISSIBILITY OF ELECTRONIC EVIDENCE
“It is also settled law that electronic evidence can be made in the ordinary course of business of establishments like bank and corporate bodies. The condition for the admissibility of this kind of evidence is that the maker must have made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at the time still fresh in his memory. This is also the import of Section 41 of the Evidence Act.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF ELECTRONIC EVIDENCE – WHETHER ORAL EVIDENCE CAN SUFFICE WHERE THE CERTIFICATE OF TRUSTWORTHINESS IS NOT PRODUCED
“The Appellant has also sought to impugn the integrity of Exhibit 7 contending that the Respondent failed to tender the certificate of trustworthiness of the computer used in printing the documents, in compliance with Section 84(a) of the Evidence Act. However, where such a certificate is not produced, it has been held that oral evidence of a person familiar with the operation of the computer can be given of its reliability and functionality; and that such a person need not be a computer expert. See R V Shephard (1993) AC 380.”
CRIMINAL LAW AND PROCEDURE, WORDS AND PHRASES
OFFENCE OF FORGERY – WHAT CONSTITUTES FORGERY?
“Thus, the elements of the offence of forgery of these documents were undoubtedly proved, see Alake V State (1991) 2 NWLR (PT. 205) 567; Babalola V State (1989) 4 NWLR (PT. 115) 264 AT 277. In the latter case, the Supreme Court, per Nnaemeka-Agu, JSC, expatiated on the nature of what constitutes forgery as follows:
‘The mere production of Exh. D1, which not only told a lie to wit: that it issued from an existing bank, but also told a lie about itself – that it was a genuine and duly issued bank draft – made it clearly a forgery under Section 399. For those were the constituents of intent to defraud. Also, the moment it was knowingly used to induce the Carpet Company to part with their eight rolls of carpet on the belief that Exhibit D1 was a genuine bank draft the element of intent to deceive was complete. So the two intents were present. One [of them] would have been enough.’ (Emphases supplied).”
CRIMINAL LAW AND PROCEDURE, PRACTICE AND PROCEDURE
OFFENCE OF FORGERY – WHETHER THE SIGNATURES BY SIGNATORIES OF A CHEQUE RENDERS SAME GENUINE WHERE THERE WAS AN INTENT TO DEFRAUD
“This is the import of the decision of the Supreme Court in Nigeria Air Force V Kamaldeen (2007) 7 NWLR (PT. 1032) 164 at 191, per Musdapher, JSC (as he then was):
‘The mere fact that the signatories on the cheque (including the respondent) are the normal persons designated to sign the cheque) does not make it genuine when right from the beginning there was intent to defraud. It has been held it is a forgery for a registrar of a Court to issue a writ to the effect that an order was made for the sale of a judgment debtor’s property when no such order was made. See Etim V The Queen (1964) All NLR 38.” See also Emu V State (1980) 2 NCR 297 at 303’.”
CRIMINAL LAW AND PROCEDURE
OFFENCE OF FORGERY – WHO CAN BE CULPABLE OF THE OFFENCE OF FORGERY?
“It is the law that where a document was used as an intermediate step in the scheme of fraud in which the accused is involved, if it shown that such a document was false and was presented or uttered by an accused person in order to gain an advantage, an irresistible inference exist that either the accused forged the document with his own hand or procured someone to commit the forgery. It is immaterial who actually forged a document so long as an accused person is a party to the forgery. In Agwuna V Ag Federation (1995) 5 NWLR (PT. 396) 418, the Supreme Court held per Iguh, JSC as follows:
‘”It is certainly not the law that it is only the person who manually writes or signs a forged document that may be convicted for forgery of the document. The position of the law is that all persons who are participles criminis whether as principals in the first degree or as accessories before or after the fact to a crime are guilty of the offence and may be charged and convicted with [the] actual commission of the crime.’ (Emphasis supplied)
See also Osondu V FRN (2000) 12 NWLR (PT. 682) 483; & Hassan V Queen (1959) SCNR 520 at 522.”
WORDS AND PHRASES
UTTERING – DEFINITION OF ‘UTTERING’
“The Criminal Code of Lagos State defines uttering to include – ‘using or dealing with, and attempting to use and deal with, and attempting to induce any person to use, deal with, or act upon the thing in question..’.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF ORAL EVIDENCE – CONDITIONS FOR THE ADMISSIBILITY OF DIRECT ORAL EVIDENCE OF A STATEMENT MADE BY A PERSON IN A DOCUMENT TO ESTABLISH EVIDENCE OF A FACT
“It is indeed the law as provided under Section 83 of the Evidence Act, 2011 that, in a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document to establish that fact shall only be admissible as evidence of that fact if the conditions contained in paragraphs (a) to (d) thereof are satisfied.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
COMPUTER GENERATED DOCUMENTS – CONDITIONS TO BE FULFILLED FOR THE ADMISSIBILITY OF COMPUTER GENERATED DOCUMENTS
“By Section 84(2) of the Evidence Act, 2011, there are four conditions which are required to be satisfied in relation to the document and computer in question are
1. That the statement sought to be tendered was produced by the computer during a period when it was in regular use;
2. That during the period of regular use, information of the kind contained in the document or statement was supplied to the computer;
3. That the computer was operating properly during that period of regular use; and
4. That the information contained in the statement was supplied to the computer in the ordinary course of its normal use.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF ELECTRONIC EVIDENCE – CONDITION FOR ADMISSIBILITY OF ELECTRONIC EVIDENCE
“Another condition for the admissibility of electronic evidence under Section 84(4) of the Act is that an authentication certificate of the computer/device used in producing the documents should be produced. From case law, this subsection permits even non-experts to issue such a certificate, especially persons who, though not possessing the required professional qualifications, may have acquired some practical knowledge and be in the position described in the subsection, to bring him within the definition of an expert by the expanded definition of an expert in Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (PT. 1377) 374.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF COMPUTER-GENERATED DOCUMENT – CONDITION FOR THE ADMISSIBILITY OF COMPUTER-GENERATED STATEMENT OR DOCUMENT
“Section 84, which is similar to Section 69 of UK PACE 1984, does not require the prosecution to show that the statement is likely to be true. Whether it is likely to be true or not is a question of weight for the Court to decide. Instead, all it requires as a condition for the admissibility of a computer-generated statement/document is positive evidence that the computer processed, stored and reproduced whatever information it received. It is majorly concerned with the integrity of the computer, in other words, the way in which the computer dealt with the information to generate the statement which is being tendered as evidence of a fact which it states. See DPP V Mckeown (1997) 1 ALL ER 737.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF ELECTRONIC EVIDENCE – INGREDIENT AN AUTHENTICATION CERTIFICATE SHOULD CONTAIN FOR RELIANCE TO BE PLACED ON IT
“If an authentication certificate is relied on, it should show on its face that it is signed by a person who, from his job description, can confidently be expected to be in a position to give reliable evidence about the operation of the computer. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and that it was operating properly will inevitably vary from case to case. See R V Shepard (1993) 2 WLR 102.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ELECTRONIC EVIDENCE – APPROPRIATE FORM OF AUTHENTICATING ELECTRONIC EVIDENCE
“There is no single approach to authentication applicable across board. Instead, the most appropriate form of authenticating electronic evidence will often depend on the nature of the evidence and the circumstances of each particular case. However, such evidence may also be authenticated by direct testimony from a witness with personal knowledge, by comparison with other authenticated evidence, or by circumstantial evidence.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ELECTRONIC EVIDENCE – TYPE OF DOCUMENTS THAT REQUIRES CERTIFICATION
“This is therefore in tandem with the production processes approved by the Supreme Court in Dickson V Sylva (2017) 8 NWLR (PT. 1567) 167, wherein Galadima, JSC held inter alia thus:
‘From the above provisions, it is crystal clear that it is only with respect to the computer that “produces” the document, in this case the DVD (Exhibit P42B) that ought to be certified.’”
COMPANY LAW, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF BUSINESS RECORD – CONDITIONS FOR THE ADMISSIBILITY OF BUSINESS RECORD
“It must however be noted that for a document to be admitted as a business record, there must be some evidence of a business duty to make and regularly maintain a record of that type.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CERTIFICATION OF DOCUMENTS – WHETHER PAYMENT OF LEGAL FEES IS A REQUIREMENT FOR CERTIFICATION
“In Tabik Investment Ltd V Guaranty Trust Bank Plc (2011) LPELR-3131(SC); & Biye V Biye (2014) LPELR-24003(CA), amongst other numerous decisions, the Supreme Court and this Court have stated emphatically that payment of legal fees and evidence of same is an integral part of the certification process, it cannot be waived and none can be exempted from paying such certification fees.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PUBLIC DOCUMENTS – REQUIREMENTS FOR THE ADMISSIBILITY OF PUBLIC DOCUMENTS
“It is not in issue that the documents tendered as Exhibit 41 are public documents, and the law is that for them to be legally admissible evidence, they must be duly certified – Sections 102 to 105 of the Evidence Act, 2011; Alamieyeseigha V FRN (2006) 16 NWLR (PT. 1004) 1; & Araka V Egbue (2003) 17 NWLR (PT. 848).”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
PUBLIC DOCUMENTS – REQUIREMENTS FOR THE ISSUANCE OF CERTIFIED COPIES OF PUBLIC DOCUMENTS
“It is also the law that, with regard to public documents, persons interested in being issued with certified true copies of same must pay the prescribed fees before same are issued.”
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE
BURDEN OF PROOF IN CRIMINAL TRIAL –ON WHO LIES THE BURDEN OF PROOF IN CRIMINAL TRIAL
“It must be said that astonishingly, in the face of this flood of evidence, the Appellant and Brila Energy Ltd decided to keep mum, adducing no evidence, whether oral or documentary, to contradict or impugn the evidence laid before the trial Court by the prosecution. This, of course is their inalienable and absolute right to do since the law is settled that in a criminal trial, the onus is always on the prosecution to prove its case beyond reasonable doubt, and the accused is not expected to prove his innocence. See Section 135(1) and (2) of the Evidence Act in conjunction with the presumption of innocence in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended; Okashetu V State (2016) LPELR-40611(SC) at 4, PARAS D-E; & Chianugo V State (2002) 2 NWLR (PT. 750) 225 AT 236.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CONTRADICTORY EVIDENCE – CIRCUMSTANCES WHEN CONTRADICTORY EVIDENCE MAY AVAIL AN ADVERSE PARTY
“It is settled law that a piece of evidence will be regarded as a contradiction when it affirms the opposite of what the other evidence has stated, not when there is a minor discrepancy. Also, contradictions in evidence can only avail the opposite party where they are material, substantial and affect the live issues in the matter, to the extent that they affect the fortunes of the Appeal in favour of the party raising the issue. The law is long since settled that only material contradictions in evidence can change the fortunes of an Appellant in an Appeal. See Suleimana V Laga (2013) LPELR-23223(CA) 35, Paras D-F; & (2005) ALL FWLR (PT. 248) 1762 AT 1759.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
MINOR CONTRADICTIONS IN EVIDENCE – WHETHER MINOR CONTRADICTIONS CAN VITIATE A PROSECUTION’S CASE
“Be that as it may, minor and inconsequential contradictions which do not seriously relate to the ingredients of the offence charged cannot vitiate the prosecution’s case against the Appellant. See Friday V State (2016) LPELR-40638(SC) AT 22, PARAS C-E; Yaki V State (2008) ALL FWLR (PT. 440) 618; Nasiru V State (1999) 1 SC 1.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CONTRADICTION IN EVIDENCE – CIRCUMSTANCES WHEN CONTRADICTORY EVIDENCE MAY BE FATAL TO A PROSECUTION’S CASE
“For a contradiction to be fatal to any case or evidence, it must be on material points. Put another way, discrepancies do not negative an otherwise credible evidence of a witness. Before the evidence of the prosecution is said to be contradictory in nature such as to create a doubt as to which of two or more alternative versions should be believed, it must be such as to change the course of events. The contradiction in this respect must be material and fundamental. That is, it must imply that there are two or more conflicting accounts or versions of the same incident. Contradictions can therefore be said to have occurred where an account of an incident by a witness is at variance and glaringly too with another person’s account of the same incident, such that accepting the account of one witness would mean rejecting the version of the other because both accounts are mutually exclusive and in conflict. If every contradiction, however trivial to the overwhelming evidence before the Court, will vitiate a trial, then almost all prosecution cases will fail. Human faculty, it is said, may miss details due to lapse of time and error in narration in order of sequence. See Ekezie V State (2016) LPELR-40961(CA) 9-10, PARAS F-D; Maiyaki V State (2008) LPELR-1823(SC) at 34, PARAS A-B; Babarinde V State (2012) LPELR-8367(CA) at 72, PARAS C-D; Ebeinwe V State (2011) 7 NWLR (PT. 1246) 402; Eke V State (2011) 3 NWLR (PT. 1235) 589; Attah V State (2010) 10 NWLR (PT. 1201) 190; Akpa V State (2008) 14 NWLR (PT. 1106) 72; & Olayinka V State (2007) NWLR (PT. 1040) 561.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
CONTRADICTION IN THE EVIDENCE OF A WITNESS – NATURE OF CONTRADICTION IN THE EVIDENCE OF A WITNESS THAT WOULD BE FATAL
“Going forward and even assuming that there were some inconsistencies in the testimonies of the witnesses, it is settled law that contradiction in the evidence of a witness that would be fatal must relate to material facts and be substantial. It must deal with the real substance of a case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. See Ojeabuo V FRN (2014) LPELR-22555(CA) at 21, PARAS C-F; Iregu V State (2013) 12 NWLR (PT. 1367) 92; Musa V State (2013) 9 NWLR (PT. 1359) 214; Famakinwa V State (2013) 7 NWLR (PT. 1354) 597; Osung V State (2012) 18 NWLR (PT. 1332) 256; Osetola V State (2012) 17 NWLR (PT. 1329) 251.”
LAW OF EVIDENCE, COURT, PRACTICE AND PROCEDURE
CONTRADICTORY EVIDENCE – ATTITUDE OF COURTS TO CONTRADICTORY EVIDENCE
“In Theophilus V State (1996) 1 NWLR (pt. 423) 139 at 155, paras A-B, the Supreme Court explained the position of the law thus:
‘It is not every trifling inconsistency in the evidence of the prosecution witnesses that is fatal to its case. It is only where such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the Court and therefore necessarily create some doubt in the mind of the trial Court that an accused is entitled to the benefit therefrom.’
This point was reiterated by Rhodes-vivour, JSC in Egwumi V State (2013) 13 NWLR (Pt 1372) 525 at 555, paras D-F thus:
‘When two or more persons are called as witnesses to say what they saw on a particular day there are bound to be discrepancies in their testimonies. The Court is only concerned with testimony on material facts and not peripherals that have no bearing on the substance in issue.’
To cap up this issue, it is well to be reminded of wise words from the learned Jurist of high repute, Oputa, JSC in Ikemson V State (1989) LPELR-1473(SC) at 44 where he magisterially intoned as follows:
‘Two witnesses who saw the same incident are not bound to describe it in the same way. There is bound to be slight differences in their accounts of what happened. When their stories appear to be very similar, the chances are that those were tutored or tailored witnesses. Minor variations in testimony seem to be a badge of truth. But when the evidence of witnesses violently contradict each other, then that is a danger signal. A trial Court should not believe contradictory evidence. Contradictory means what it says – contra-dictum – to say the opposite.’
In reiterating the position of the Supreme Court on this issue, in the more recent case of Uche V State (2015) LPELR-24693(SC) 32-33, PARAS B-A, Nweze, JSC followed up in these words:
‘Hence, testimonies of witnesses can only be said to be contradictory when they give inconsistent accounts of the same event. That explains why the law takes the view that for contradictions in the testimonies of witnesses to vitiate a decision, they must be material and substantial. That, such contradictions must be so material to the extent that they cast serious doubts on the case presented as a whole by the party on whose behalf the witnesses testify, or as to the reliability of such witnesses… This is so because it would be miraculous to find two persons who witnessed an incident giving identical accounts of it when they are called upon to do so at a future date. If that were to happen, such accounts would be treated with suspicion, as it is likely that the witnesses compared notes. In effect, minor variations in testimonies seem to be badges of truth… In any event, Courts have taken the view that witnesses may not always speak of the same facts or events with equal and regimented accuracy.’” –
WORDS AND PHRASES
SENTENCING – DEFINITION AND ESSENCE OF SENTENCING
“Sentencing may be defined as the judicial determination of a legal sanction to be imposed on a person found guilty of an offence. It means the prescription of a particular punishment by a Court to someone convicted of a crime. Sentencing generally aims at the protection of the society through the prevention of crime or reform of the offender, which may be achieved by the means of elimination, deterrence or reformation/rehabilitation of the offender. The justification is that, imposing the penalty will reduce future incidences of such offences by preventing the offender from re-offending or correcting the offender so that the criminal motivation or inclination is removed; or by discouraging or educating other potential offenders. See Usman V State (2015) LPELR-40855(CA) at 40-41, PARAS D-B.”
CRIMINAL LAW AND PROCEDURE, COURT, PRACTICE AND PROCEDURE
SENTENCE – FACTORS GUIDING THE COURT IN EXERCISING ITS JURISDICTION TO REVIEW A SENTENCE
“It has been established that an Appeal Court does not alter a sentence on the mere ground that, if the learned Justices of the Court had tried the Appellant, they might have imposed a different sentence. For an Appeal Court to interfere, the sentence must be manifestly excessive in view of the circumstances of the case or be wrong in principle. See Uwakwe V State (1974) 9 SC 25.
The factors which guide the Court in the exercise of its jurisdiction to review a sentence include –
(a) The gravity of the offence;
(b) The prescribed punishment for the offence;
(c) The prevalence of a particular of crime in a locality; and
(d) The circumstances of the offence to see if there are grounds of mitigating the punishment.
The sentencing power of a Judge is predicated on his discretionary powers, which must be seen to have been exercised judicially and judiciously. See Zacheous V State (2015) LPELR-24531(CA) at 49, PARAS A-E; Isang V State (1996) 9 NWLR (PT 473) 458; & Igboanugo V State (1992) 3 NWLR (PT. 228) 176.”
.
CRIMINAL LAW AND PROCEDURE, COURT, PRACTICE AND PROCEDURE
SENTENCING – FACTORS TO BE CONSIDERED BY A JUDGE IN FIXING A SENTENCE
“In most cases, the law fixes an upper limit and leaves a Judge with the power to fix the sentence appropriate within the limit, which may vary from a caution and discharge, a binding over order, a fine or imprisonment, depending on the Judge’s view of the circumstances of the case. However, the Judge is also bound to consider factors such as the gravity or otherwise of the offence, the prevalence of the offence, whether the convict is a first offender, and the prevailing attitude of the populace to the offence. See Zacheous V State (Supra); & Onilikwu V Cop (1981) 2 NLR 49. Thus where the law prescribes a maximum sentence for an offence, the Court has a discretion to impose less than the maximum prescribed by taking into consideration extenuating factors such as the age of the convict being a first offender, etc. See Amoshima V State (2011) 14 NWLR (PT. 1268) 530 at 554 per Onnoghen, JSC.”
COMPANY LAW, LEGAL PERSONALITY
LIMITED LIABILITY COMPANY – LEGAL PERSONALITY OF A LIMITED LIABILITY COMPANY
“Limited liability companies are separate legal entities which are enabled to conduct business in their own right, with its legal rights and liabilities distinct from their shareholders or officers. The locus classicus on the nature of separate legal personality of a limited liability company is the case of Salomon V Salomon & Co. Ltd (1897) A.C. 22. See also A.I.B. Ltd V Lee & Tee Industries Ltd (2003) LPELR-9171(CA); Zest News Ltd V Senator Mahmud Waziri (2003) LPELR-6238(CA). See Section 65 of the Companies and Allied Matters Act, 1990.”
COMPANY LAW
LIMITED LIABILITY COMPANY – PRIMARY REASON FOR INCORPORATING A LIMITED LIABILITY COMPANY
“One of the primary reasons for incorporating a limited liability company is to shield the individual shareholder(s) or its officers from liability. The shareholders or officers are usually not personally liable for the debts and actions of the company simply by reason of being its shareholder or officer. The Courts would however not hesitate to set aside this protective veil of a corporation if the corporate form is abused.”
COMPANY LAW
LIFTING THE VEIL OF INCORPORATION – CIRCUMSTANCES WHEN THE VEIL OF INCORPORATION WOULD BE LIFTED
“One established circumstance when the veil of incorporation would be lifted to reveal the persons behind the veil is when the company is being used for an improper purpose, such as when it is used to commit a fraud or wrong. The law would go behind the veil of incorporation in this circumstance, to expose and apprehend the individual member of the company whose act or conduct is criminally reprehensible; Oyebanji V State (2015) LPELR-24751(SC). The lifting of the veil would reveal the individual member or officer of the company who would be held accountable. Contributing to the decision in Oyebanji V State (supra), Kekere Ekun, J.S.C said, pages 41 – 42 of the E-Report:
‘The circumstance in which the “veil of incorporation” of a company may be lifted was succinctly stated in the case of: Alade V. ALIC (Nig) Ltd. &. Anor. (2010) 19 NWLR (Pt.1226) 111 @ 130 E-H & 142 C-E where this Court held thus: Per Galadima, JSC at 130 E-H: 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. In FDB Financial Services Ltd. V. Adesola (2002) 8 NWLR (Pt.668) 170 at 174, the Court considering the power of a Court to lift the veil of incorporation held thus:
‘The consequence of recognizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift this veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud it is in the quest to avoid the normal consequences of the statute which may result in grave injustice that the Court as occasion demands have a look behind or pierce the corporate veil.’
See further Adeyemi V. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR (Pt.663) 33 at 51.” Per Muntaka-Coomassie, JSC at I42 C-E “It must be stated unequivocally that this Court, as the last Court of the land, will not allow a party to use his company as a cover to dupe, cheat and or defraud an innocent citizen who entered into a lawful contract with the company only to be confronted with the defence of the company’s legal entity as distinct from its directors.’”
COMPANY LAW
COMPANY – NATURE OF A COMPANY
“The Supreme Court in Mma Inc. V Nma (2012) LPELR-20618(SC), per Galadinma, JSC, at pages 48 – 49 of the E-Report, succinctly related the nature of the company in this manner:
“A company is only a juristic person; it can act through an alter ego, either its agents or servants. Evidence of PW1 is given in that capacity. See Kate Ent. Ltd. V. Daewoo Nigeria Ltd (1985) 2 NWLR (Pt.5) 116 on what a legal status of a Company is. This Court held in that case that:
‘4.1.14…… At Common Law such company is a persona ficta and can only act through its agents or servants.
See Lennards Carrying Co. v. Asiatic Petroleum Co. Ltd. 1915 AC 705 per Viscount Haldane L.C. at pp.713 – 714 and Bolton (Engineering) Co. Ltd. vs. Graham & Sons Ltd. (supra) at p.172 per Denning L. J. who observed that;
‘A company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, these managers are the state of the mind of the company and are treated by the law as such.’ ”
COMPANY LAW
LIFTING THE VEIL OF INCORPORATION – INSTANCES WHEN THE VEIL OF INCORPORATION WOULD BE LIFTED
“Where the director or manager of a company engages in fraudulent activity in the name of the company, the veil of incorporation will certainly be lifted to ascribe liability for the criminal conduct. If particular statute so prescribes, the identified officer of the company, as well as the company itself shall be held accountable. See Section 10(1) of the Advance Fee Fraud and Other Related Offences Act, 2006.”
WORDS AND PHRASES
HEARSAY EVIDENCE – MEANING OF HEARSAY EVIDENCE
“By the hearsay rule, an assertion other than one made by a person while giving oral evidence in Court is inadmissible as evidence of the facts asserted. In very simple terms, hearsay evidence is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made. Section 37 of the Evidence Act, 2011 provides that:
Hearsay means a statement
(a) Oral or written made otherwise than by a witness in a proceeding; or
(b) Contained or recorded in a book, document or any record whatsoever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
Section 38:
Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. ”
LAW OF EVIDENCE, WORDS AND PHRASES
HEARSAY EVIDENCE – MEANING AND NATURE OF HEARSAY EVIDENCE
“The meaning and nature of hearsay evidence was described in AROGUNDADE V STATE (2009) LPELR-559(SC) by the Supreme Court, per Onnoghen, JSC (as he then was) at page 23 of the E-Report in this manner:
‘In the case of Subramaniam vs Public Prosecutor, (1956) 1 WLR 965 at969, hearsay evidence was described in the following terms:
‘Evidence of a statement made to a witness called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made’.
From the above, it is clear that the purpose for which a statement made by a person to the witness is tendered in Court determines its admissibility since if the intention of introducing the evidence is to establish the truth of the statement/evidence it would be hearsay and inadmissible but would be admissible if the purpose or intention is to establish the fact that the statement was made by the person concerned.’
In Ojo V Gharoro (2006) LPELR-2383(SC) AT PAGE 16 of the E-Report, Tobi, JSC, described hearsay evidence as follows:
‘When a third party relates a story to another as proof of contents of a statement such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests also, in part, on the veracity and competence of some other person. See Judicial Service Committee v. Omo (1990) 6 NWLR (Pt.157) 407. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify. See Utteh v. The State (1992) 2 NWLR (Pt. 223) 257.’
See also: Utteh V State (1992) LPELR – 6239(SC); FRN V Usman (2012) LPELR-7818(SC).”
LAW OF EVIDENCE, COMPANY LAW,
HEARSAY EVIDENCE – EXCEPTIONS TO THE RULE ON ADMISSIBILITY OF HEARSAY EVIDENCE WITH REGARD TO BUSINESS RECORDS
“Although hearsay evidence is generally inadmissible, the provisions of the Section 38 of the Act make it clear that the law regarding hearsay is not cast in iron. There are exceptions to the rule. The main exceptions to the hearsay rule are contained in Part IV in the Evidence Act, 2011. One of the exceptions is in respect of records made or kept in the course of regularly conducted activity of a business, organization, occupation or calling, whether or not for profit. Relevant thereto are the provisions of Sections 41 and 51 of the Act which provide as follows:
Section 41 :
A statement is admissible when made by a person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books, electronic device or record kept in the ordinary course of business, or in the discharge of a professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him:
Provided that the maker made the statement contemporaneously with the transaction recorded or so soon thereafter that the Court considers it likely that the transaction was at that time still fresh in his memory.
Section 51:
Entries in books of accounts or electronic records regularly kept in the course of business are admissible whenever they refer to a matter into which the Court has to inquire, but such statements may not alone be sufficient evidence to charge any person with liability.
The phrase in the ordinary course of business underscores a requirement of routineness and repetitiveness employed in keeping of traditional or typical business records. On the said proviso to Section 41 which requires for the admissibility of the statement made contemporaneously with the transaction recorded or so soon thereafter, I agree with the learned author, Sir T.A. Nwamara in Discovery, Disclosure and Admissibility of Electronic Evidence in Nigeria at page 141 thereof that:
“The addition of the words “or so soon thereafter” means that the recording of the statement may not always be strictly synchronous to make the record admissible but there must be a clear and immediate approximation in terms of the same relative period and space.”
Section 51 covers entries made in account books or electronic records made in the ordinary course of business. The phrase regularly kept is not synonymous with correctly kept. The accounts or electronic record must have been kept in accordance with certain fixed or customary method or system. If the records are found to be regularly kept, though not to correctly kept, it may affect the weight to be attached to the entries therein but not the admissibility of the records. By the provisions of Section 51, such statements may not alone be sufficient evidence to charge any person with liability. There must be corroborative evidence to prove the items therein.”
LAW OF EVIDENCE, COMPANY LAW,
HEARSAY EVIDENCE – WHETHER ELECTRONIC RECORDS OF BUSINESS ACTIVITIES MADE IN THE ORDINARY COURSE OF BUSINESS CONSTITUTES HEARSAY EVIDENCE
“Electronic records of business activities made in the ordinary course of business and entered contemporaneously with the transaction recorded or so soon thereafter does not constitute hearsay evidence.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ELECTRONIC GENERATED EVIDENCE – MAIN OBJECTIVE OF THE PROVISIONS OF SECTION 84 OF THE EVIDENCE ACT ON THE ADMISSIBILITY OF ELECTRONIC GENERATED EVIDENCE
“The provisions of Section 84 which state conditions for admitting in evidence any electronically generated document are central in determining the admissibility of a document emanating from a computer. The main objective of these provisions is to authenticate and validate the reliability of the computer which generated the evidence sought to be tendered. It was necessary to prove that a computer was operating properly and was not used improperly before any statement in a document produced by the computer could be admitted in evidence. Evidence in relation to the use of the computer must therefore be called to establish compliance with the conditions set out in Section 84(2).”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ADMISSIBILITY OF COMPUTER-GENERATED EVIDENCE – WHETHER COMPUTER-GENERATED EVIDENCE WHICH DO NOT COMPLY WITH THE CONDITIONS IN SECTION 84 OF THE EVIDENCE ACT ARE ADMISSIBLE
“In Kubor V Dickson (2012) LPELR-9817(SC), the Supreme Court, per Onnoghen, JSC, affirmed that computer-generated evidence or documents which did not comply with the pre-conditions laid down in Section 84(2) were inadmissible. My views expressed in Sylva & Anor V INEC & Ors (Unreported) Appeal No: CA/A/EPT/281/2016 delivered on June 24, 2016, which was affirmed by the Apex Court in Dickson V Sylva & Ors (2016) LPELR-41257(SC) at page 15 of the E-Report, remain relevant, as follows:
“In this digital age when different creations can be achieved electronically, the reason for the requirement of authentication or certification of the gadget or computer used in producing and processing the electronically generated documents is not farfetched. The party seeking to rely on such evidence must be able to show that the data and information contained in the electronically generated document is truly what it claims to be. The pre-conditions for admissibility set down by Section 84 are to establish this fact. The relationship between the computer and the information is crucial. The electronic evidence must be produced from a computer or gadget that is inherently reliable and has been in operation over the relevant period. There is no doubt that with present and even future technological advances, the pre-conditions attached to admissibility of electronically generated evidence by Section 84 may no longer be sufficient to authenticate the reliability of electronic evidence. However, these challenges are not in issue herein. One constant is that a computer or gadget will only reproduce what has been fed into it. The computer or gadget will demonstrate or play what it receives. This is the reason why there is no further need for certification of the computer or gadget to be used to demonstrate or to play an already properly admitted electronically generated evidence, which had complied with the pre-conditions of Section 84.’”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
COMPUTER GENERATED EVIDENCE – METHODS OF DISCHARGING THE BURDEN OF PROVING THE RELIABILITY OF COMPUTER GENERATED EVIDENCE
“The burden of proving that there had been no improper use of the computer and that it was operating properly could be discharged without calling a computer expert. It may be discharged by calling someone familiar with its operation in the sense of knowing what the machine was required to do and who could say that it was doing it properly. In other words, oral evidence may be given of the working of the computer in line with the provisions of Section 84(2). See: R V Shephard [1991] 93 CR.APP.R.139, in which the provisions of Section 69 of the U.K. Police and Criminal Evidence Act, 1984 (now repealed by Section 60 of the U.K. Youth Justice and Criminal Evidence Act 1999) were considered. Section 84 of the Evidence Act, 2011 is similarly worded with the said Section 69 of the U.K. Police and Criminal Evidence Act. 1984. In Dickson V Sylva (supra), the Supreme Court, per Nweze, JSC, at pages 23 -24 of the E-Report said:
“Interpreting provisions similarly worded like Section 84 (supra), the defunct House of Lords [per Lord Griffiths] had this to say in R v. Shepherd [1993] 1 All ER 225, 231, paragraphs A-C, [HL], Documents produced by computers are an increasingly common feature of all businesses and more and more people are becoming familiar with uses and operation. Computers vary immensely in their complexity and in the operations they perform. The nature of the evidence to discharge the burden of showing that there has been no improper use of the computer and it was operating properly will inevitably vary from case to case. The evidence must be tailored to suit the needs of the case. I suspect that it will very rarely be necessary to call an expert and that in the vast majority of cases it will be possible to discharge the burden by calling a witness who is familiar with the operation of the computer in the sense of knowing what the computer is required to do and who can say that it is doing it properly.’ [Italics supplied for emphasis].
In actual fact, Section 84 (supra) consecrates two methods of proof, either by oral evidence under Section 84(1) and (2) or by a certificate under Section 84(4). In either case, the conditions stipulated in Section 84(2) must be satisfied. However, this is subject to the power of the Judge to require oral evidence in addition to the certificate. As the eminent Lord Griffith explained in the said case [R v. Shepherd]:
‘Proof that the computer is reliable can be provided in two ways: either by calling oral evidence or by tendering a written certificate subject to the power of the Judge to require oral evidence. It is understandable that if a certificate is to be relied upon it should show on its face that it is signed by a person who from his job description can confidently be expected to be in a person to give reliable evidence about the operation of the computer. This enables the defendant to decide whether to accept at its face value or to ask the Judge to require oral evidence which can be challenged in cross examination.’ [Italics supplied for emphasis].
Thus, proof that the computer used to generate evidence is reliable can be provided in two ways: either by calling oral evidence, under Section 84(2) or by tendering a written certificate, under Section 84(4).”
COMPANY LAW
LIFTING THE VEIL OF INCORPORATION – INSTANCE WHEN THE VEIL OF INCORPORATION WOULD BE LIFTED
“There is no doubt that the law as established since the case of Salomon V Salomon & Company Ltd (1987) AC 22 is that an incorporated Company has a direct and separate legal personality from its members and officials. The consequence of recognizing the separate personality of a company is to draw a veil of incorporation over the company. One is generally not entitled to go behind or lift the veil for the purpose of attaching liability to its officers. This doctrine of the law has been codified in Sections 37 and 65 of the Companies and Allied Matters Act. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud, it is in the quest to avoid the normal consequences of the statute which may result in grave injustice that the Court as occasion demands may have a look behind or pierce the veil of incorporation to see those behind the veil. One of the instances where the veil of incorporation may be lifted is where the company is liable for fraud. See Alade V Alic (Nig) Ltd (2010) 19 NWLR (PT. 1226) 111 and Oyebanji V State (2015) LPELR-24751.”
COMPANY LAW
LIFTING THE VEIL OF INCORPORATION – OCCASION FOR LIFTING THE VEIL OF INCORPORATION
“Section 10(1) of the Advance Fee Fraud and Other Fraud Related Offences Act provides an occasion for the lifting of the veil of incorporation of a company to see and hold criminally liable the natural person who instigated an offence by a company under the said Act along with the company. See Nwude V FRN (2016) 5 NWLR (PT 1506) 471.”
COMPANY LAW
DOCTRINE OF ALTER EGO – PURPORT OF THE DOCTRINE OF ALTER EGO
“By the doctrine of alter ego the Court disregards corporate entity and holds individual responsible for acts knowingly and intentionally done in the name of the corporation. This is done where the individual disregarded the entity of the corporation and made it a mere conduit pipe for the transaction of his own private business. Liability springs from fraud perpetrated not on the corporation but on third persons dealing with the corporation. See Oyebanji V State supra.”
LAW OF EVIDENCE, PRACTICE AND PROCEDURE
ELECTRONIC GENERATED EVIDENCE – WAYS OF PROVING THE RELIABILITY OF A COMPUTER THAT GENERATES ELECTRONIC EVIDENCE
“It is now established that the requirement of Section 84(2) and (4) of the said Act can be satisfied by oral evidence of a person familiar with the operation of the computer as to its reliability and functionality. See R V Shephard (1993) AC 380 and Dickson V Sylva (2017) 8 NWLR (PT 1567) 167, when the Supreme Court held that:
‘Proof that the computer is reliable can be provided in two ways- either by calling oral evidence or by tendering a written certificate subject to the power of the Judge to require oral evidence.’
CASES CITED
Not Available
STATUTES REFERRED TO
Advance Fee Fraud and Other Related Offences Act No. 14 Of 2006|
Criminal Code of Lagos State|
U.K. Police and Criminal Evidence Act, 1984|
U.K. Youth Justice and Criminal Evidence Act 1999|
