EVALUATION OF EVIDENCE – CONCEPT OF EVALUATION OF EVIDENCE – COURT WITH THE PREROGATIVE IN THE EXERCISE OF EVALUATION OF EVIDENCE
“Remarkably, evaluation of evidence connotes the appraisal/ assessment of evidence, both viva voce and documentary before a court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate court, to watch the witnesses, form impression on their demeanour and valuate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate court is disrobed of the vires to interfere with a finding of a trial court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial court has justifiably performed this primary duty, an appellate court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213. PER O.F.OGBUINYA, J.C.A
EVALUATION OF DOCUMENTARY EVIDENCE – COURTS WITH JURISDICTION TO EVALUATE DOCUMENTARY EVIDENCE
“Interestingly, the law, in order to disown injustice, donates concurrent jurisdiction to this court and the lower court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. PER O.F.OGBUINYA, J.C.A OFFENCE OF ISSUANCE OF DISHONOURED CHEQUE – INGREDIENTS OF THE OFFENCE OF ISSUANCE OF DISHONOURED CHEQUE THAT A PROSECUTION MUST PROVE TO SECURE A CONVICTION
“There is no gainsaying the fact, decipherable from the dazzling arguments of the feuding parties, that the appellant’s agitation, on the issue, orbits around the propriety or otherwise of the lower court’s interpretation of the provision of section 1(1) of the Dishonoured Cheques (Offences) Act under which the appellant was arraigned before it. In view of this Olympian position, being the cynosure of the vexed issue, it is germane to pluck it out from where it is domiciled in the statute book, ipsissima verba, as follows:
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.
Interestingly, the provision is comprehension-friendly. To this end, the law commands the court to accord it its ordinary meaning without any embellishments, see Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503. Indubitably, the case-law has evolved the three ingredients of the offence, germinating from the provision, which the prosecution must prove in order to secure conviction of an accused, videlicet: (a) that the person obtained or induced the delivery of an item, capable of being stolen, or obtained credit for himself or any other person by means of a cheque; (b) that the cheque was presented for payment within three months of the date thereon; and (c) that upon presentation, the cheque was 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, see Abeke v. State (2007) 9 NWLR (Pt. 1040) 411. PER O.F.OGBUINYA, J.C.A
CONDITION – PRECEDENT – MEANING OF CONDITION – PRECEDENT
“A condition – precedent is one that delays the investiture of a right until the happening of an event, see A. – G., Kwara State v. Adeyemo (2017) 1 NWLR (Pt. 1546) 210; Jumbo United Co. Ltd. v. Leadway Ass. Co. Ltd. (2016) 15 NWLR (Pt. 1536) 439. Thus, a condition precedent puts the realisation of a right in incubation pending the occurrence of an event”. PER O.F.OGBUINYA, J.C.A
DRAWING A CHEQUE – IMPLICATION OF DRAWING A CHEQUE IN SETTLEMENT OF AN OBLIGATION UNDER AN ENFORCEABLE CONTRACT
“In any event, a person who draws a cheque in settlement of an obligation under an enforceable contract shall be deemed to have obtained the credit for himself by means of the cheque notwithstanding that at the time of the contract the manner of settlement of the obligation was not specified. This is the decree of the prescription of section 1(2)(b) of the Dishonoured Cheques (Offences) Act. PER O.F.OGBUINYA, J.C.A
PRESENTATION OF POST DATED CHEQUE –WHEN CAN A DRAWEE/PAYEE OF A POST DATED CHEQUE PRESENT IT FOR PAYMENT
“The law grants an unbridled licence to a drawee/payee of a post-dated cheque/instrument to present it for payment on the date it is drawn, see Abeke v. State (supra). PER O.F.OGBUINYA, J.C.A
“REFER TO DRAWER”- IMPLICATION OF “REFER TO DRAWER” ON A CHEQUE
“In the firmament of banking, the acronym “R/D” signifies Refer to Drawer which connotes “We are not paying go back to the drawer and ask why or else go back to the drawer and ask him to pay”, see Dike v. ACB Ltd. (2000) 5 NWLR (Pt. 657) 441; S.T.B. Ltd. v. Anumnu (2008) 14 NWLR (Pt. 1106) 125. Some of the post-dated cheques wear the inscription: No fund or insufficient fund. PER O.F.OGBUINYA, J.C.A
ONUS OF PROOF – INSTANCE WHEN THE ONUS OF PROOF SHIFTS TO THE DEFENDANT
“One of the main planks of the appellant’s appeal is that the lower court was in grave error on its finding on proof of the ingredients of the offence given the defences invented by him. In this perspective, the provision of section 135 (3) of the Evidence Act, 2011 comes in handy. It reads:
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The case-law has given its blessing to this provision by its invocation in loads of authorities. In Akinmogu v. State (2000) 6 NWLR (Pt. 662) 608 at 629, lguh, JSC, incisively, declared:
Where, as in the present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the court, the onus is on the accused to rebut the presumption of guilt or cast a reasonable doubt on the case of the prosecution by preponderance of probabilities.
See, also, Adepetu v. State (1998) NWLR (Pt. 565) 185; Adeniji
v. The State (2001) FWLR (Pt. 57) 809; Arogundade v. State (2009)
NWLR (Pt.1 136) 165; Ezeuko v. State (supra); Eyo v. State (2016) NWLR (Pt. 1510) 183; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Nwodo v. State (2019) 3 NWLR (Pt. 1659) 228; Oyem v. FRN (2019) 11 NWLR (Pt. 1683); Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. PER O.F.OGBUINYA, J.C.A
OFFENCE OF DISHONOURED CHEQUE – WHETHER A DRAWER/ENDORSER OF DISHONOURED CHEQUE IS ENTITLED TO A NOTICE OF DISHONOUR
“It is apropos, having cleared the coast, to mine out the provision of section 48 of the Bills of Exchange Act, verbatim ac litteratim, as follows:
48. Notice of dishonour and effect of non-notice.
Subject to the provision of this Act, when a bill has been dishonoured by non-acceptance or by non-payment, notice of dishonour must be given to the drawer and each endorser, and any drawer or endorser to whom such notice is not given is discharged.
Provided that-
(a) Where a bill dishonoured by non-acceptance, and notice of dishonour is not given, the right of a holder in due course subsequent to the omission shall not be prejudiced by the omission.
(b) Where a bill is dishonoured by non-acceptance, and due notice of dishonour is given, it shall not be necessary to give notice of a subsequent dishonour by non-payment unless the bill shall in the meantime have been accepted.
The provision is rebellious to ambiguity. It is discernible, from its phraseology, that a drawer/endorser of dishonoured cheque is entitled to a notice of dishonour and in default thereof he remains discharged. PER O.F.OGBUINYA, J.C.A
“SUBJECT TO” – MEANING OF “SUBJECT TO”
“In legal parlance, by the employment of the phrase, “subject to”, which is a term of limitation or restriction, the provision is subordinated to other provisions of the Act, see Osahon v. FRN (2006) 5 NWLR (Pt. 973) 361; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 301″. PER O.F.OGBUINYA, J.C.A
RIGHT TO SERVICE OF NOTICE OF DISHONOUR OF A CHEQUE – WHETHER A DRAWER/ENDORSER HAS THE RIGHT TO WAIVE THE SERVICE OF NOTICE OF DISHONOUR OF A CHEQUE
“Specifically, section 50 (2) (b) of the Bills of Exchange Act states:
50. Excuses for non-notice and delay
(2) Notice of dishonour is dispensed with-
(b) by waiver, express or implied; and notice of dishonour may be waived before the time of giving notice has arrived or after the omission to give due notice;
This provision does not harbour any ambiguity. Its purport is that a party, drawer/endorser, may expressly or impliedly waive service of notice of dishonour of a cheque prior or subsequent to the time of giving such notice. Waiver, in law, signifies the intentional and voluntary surrender, relinquishment, dispensation or abandonment of a known privilege and or right by a party which, at his option, he could have instead on, see Ariori v. Elemo (1993) /SC 13; Belgore v. FRN (2021) 3 NWLR (Pt. 1764) 503. It occurs when an individual instead of persisting on due compliance with a statutory right, which accrues to him by default of his adversary, he rather glories in its non-conformity. From the tenor of the waiver provision, chronicled above, the right to service of notice of dishonour of a cheque is domestic/personal to the drawer/endorser (like the appellant) and submissive to waiver by him, see F & F Farms (Nig) Ltd. V. NNPC (2009) 12 NWLR (Pt. 1155) 387; Nnonye V. Anyichie (2005) 2 NWLR (Pt. 910) 633; Belgore v. FRN (supra). This is because such a right is sui juris – one’s own right. In the Latin days of the law, waiver of personal right was encapsulated in the maxim: Quilibet potest renunciare juri pro se introducto– an individual may renounce a law made for his special benefit. PER O.F.OGBUINYA, J.C.A
WAIVER – WHETHER WAIVER CAN BE IMPLIED
“Waiver may be implied from conduct that is inconsistent/incompatible with the continuance of the right of a party, see Bank of the North Ltd. v. Yau (2001) 5 SC (Pt. 1) 121. PER O.F.OGBUINYA, J.C.A
PERVERSE VERDICT – WHEN IS A VERDICT PERVERSE?
“A verdict of court is perverse when: it runs counter to the pleadings and evidence before it, a court takes into account matters it ought not to take into consideration, a court shuts its eyes to the evidence, a court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Igbikis v. State (supra) ; Saleh v. State (2019) 8 NWLR (Pt. 1675) 416″. PER O.F.OGBUINYA, J.C.A
PROOF BEYOND REASONABLE DOUBT – WHEN IS PROOF BEYOND REASONABLE DOUBT ATTAINED?
“In the view of the law, proof is a process by which the existence of facts is established to the satisfaction of the court, see section 121 of the Evidence Act, 2011; Salau v. State (2019) 16 NWLR (Pt. 1699) 399. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Mohammed v. A. – G., Fed (2021) 3 NWLR (Pt. 1764) 397. In the sight of the law, proof beyond reasonable doubt 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 Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower court, which inculpated the appellant, as the particeps criminis of the offence charged, is unassailable. Due to its unimpeachable status, this court is robbed of the jurisdiction to tinker with it, see Olatuobosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287″. PER O.F.OGBUINYA, J.C.A