Issuance of Dishonoured Cheque

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ONYEKACHI AJA OTISI, J.C.A.(Delivering the Leading Judgment): This appeal emanated from the judgment of the Nasarawa State High Court sitting at Mararaba Coram Simon O. Aboki, J. delivered on March 20, 2017 in Charge No: NSD/MG5CR/13 in which the Appellant was convicted and sentenced to 10 years imprisonment without an option of a fine for offences contrary to Section 1 (1) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act, and Section 1(b)(i) of the Dishonoured Cheque (Offences) Act, 2004.
The facts leading to this appeal, as presented by the Appellant, are as follows: The Appellant, a business woman had been the business partner of Mr. John Okeke, the complainant, since 2008. The Appellant had previously received various sums of money as loan from the said complainant for her business. She had always paid back each of the loans with interest until the loan leading to the charge against her. The said loan, which was for the sum of N7,000,000.00, was to have been to service a Local Purchase Order (LPO) for the supply of 22 trucks of diesel to News Agency of Nigeria (NAN). The Appellant executed a loan agreement with the said complainant, which included terms for repayment of the loan in seven months with N1,400,000.00 to be paid monthly. The Appellant was however duped to the tune of the sum of N160,300,000.00, as a result of which she defaulted in payment, in breach of the terms of the loan agreement. The Appellant issued the complainant with a cheque of N3,000,000 on his request. But, when the Appellant presented the cheque for payment, it was dishonoured. The complainant reported the matter to the Police who arrested and detained the Appellant. The Appellant issued another cheque in the sum of N7,000,000.00 as a condition precedent for her bail. The complainant again presented the cheque for payment but it was also dishonoured. The Appellant was subsequently arrested by the operatives of Economic and Financial Crimes Commission (EFCC) and arraigned on a three-count charge, to which she pleaded not guilty, pages 2 – 3 of the Record of Appeal. At the conclusion of the trial, the learned trial Judge found the Appellant guilty on each of the three-count charge and sentenced her to concurrent terms of ten years imprisonment for obtaining money by false pretence, and two years imprisonment respectively for issuing dishonoured cheques. It also ordered the Appellant to pay all the sums of money she obtained from the complainant by false pretence. Aggrieved by the judgment, the Appellant lodged this appeal by Notice of Appeal filed on 18/5/2017 on six grounds of appeal, pages 184 – 187 of the Record of Appeal.
The parties exchanged Briefs of Argument, including the Appellant’s Reply Brief. At the hearing of the appeal on 13/2/2018, A.O. Igeh, Esq. adopted the Appellant’s Brief filed on 3/8/2017 but deemed properly filed on 7/11/2017. Chile Okoroma, Esq. with Mary Onoja, Esq., adopted the Respondent’s Brief which was filed on 5/2/2018 but deemed properly filed on 6/2/2018. Mr. Igeh also adopted the Appellant’s Reply Brief filed on 9/2/2018.
The Respondent had raised a Preliminary Objection in the Respondent???s Brief, which was not argued and therefore deemed abandoned. I note that the Respondent had contended in the said Objection that ground 5 of the grounds of appeal was incompetent. However, although the said Objection was abandoned, the Court cannot close its eyes to an incompetent ground of appeal; Abubakar v Joseph (2008) LPELR-48(SC).
In ground 5 of the Grounds of Appeal, the Appellant complained that:
The judgment is against the weight of evidence.
Clarifying the meaning and implication of this well-known omnibus ground of appeal, the Supreme Court, per Ogundare, JSC in Ezebilo Abisi v Ekwealor (1993) 6 NWLR (PT 302) 643; (1993) LPELR-44(SC) at page 53 of the E-Report cited with approval the earlier decision of the Apex Court in Mogaji v Odofin (1978) 4 S.C. 91 at 93-95, where Fatayi-Williams JSC (as he then was) put it this way:
When an appellant complains that a judgment is against the weight of evidence, all he means is that when the evidence adduced by him is balanced against that adduced by the respondent, the judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him.
A complaint that the judgment is against the weight of evidence is therefore an accepted omnibus ground in a civil appeal; Adelusola v Akinde (2004) LPELR-120(SC). See also: Order 7