ABRAHAM v. FEDERAL REPUBLIC OF NIGERIA

…………………….A…………………….

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

…………………….B…………………….

Rule 3 of the Court of Appeal Rules, 2016. In criminal appeals, an omnibus ground of appeal is couched differently. The reason for this difference was eloquently stated by this Court in Olakunle v The State (2014) LPELR-22519(CA), where Ground 7 of the Grounds of Appeal therein was similarly couched: the judgment is against the weight of evidence, per Akeju, JCA, thus:
It must be stated that weight of evidence is applicable in civil proceedings where the standard of proof is on the balance of probability or preponderance of evidence which the Court arrives at after weighing the evidence in line with the decision in the case of Mogaji vs. Odofin (1978) 4 SC 91. In criminal cases, it is abundantly clear by Section 135 (1) of the Evidence Act 2011 that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. This section with the provision for presumption of innocence under Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) place the burden on the person alleging a crime (usually the prosecutor) to prove all the ingredients of the alleged offence, and in such cases, there is usually no recourse to weight of evidence.
The proper way to couch the omnibus ground of appeal in a criminal case is that the decision is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence adduced, Isiekwe vs. State (1999) 9 NWLR (pt. 617) 43; Ekeru vs. Anuku (2011) All FWLR (Pt. 561) 1560.
See pages 45-46 of the E-Report. In Abah v Jabusco (Nigeria) Ltd (2007) LPELR-4325(CA), Ground 8 of the Grounds of Appeal therein was couched in the following terms:
The whole decision of the learned trial Judge is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
This Court, per Belgore, JCA, held that the said ground of appeal was incompetent in a civil appeal. The Court relied on the case of Elijah Okezie v The Queen (1963) 1 All NLR 1, (1963) 1 SCNLR 24 where Ademola, C.J.F. observed that:
This Court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal, the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence.
See pages 10-11 of the E-Report. The said Ground 8 therein was adjudged incompetent and consequently struck out. See also Atuyeye v Ashamu (1987) LPELR-638(SC); Adeyeri v Okobi (1997) LPELR-8055(SC); Umar v C.O.P. Kano State (2014) LPELR-24012(CA).
In the light of the above pronouncements, ground 5 of the Grounds of Appeal in which the Appellant complained that the judgment is against the weight of evidence, is incompetent as a ground of appeal in a criminal appeal. The complaint could be that the judgment is unreasonable or unwarranted having regard to the evidence, that being because the weight of evidence is not the barometer for determination in criminal trials. Rather, the prosecution is expected to prove its case beyond reasonable doubt. Ground 5 must therefore be discountenanced.
Out of six grounds of appeal, the Appellant had distilled five issues for determination of this appeal. Issues formulated for determination in an appeal are meant to be distilled from a combination of the essential complaints of an appellant in the grounds of appeal. An issue formulated for determination may be distilled from more than one competent ground of appeal. Ordinarily, any issue distilled from an incompetent ground of appeal is itself incompetent and must be struck out, alongside any arguments based thereon; Odeh v F.R.N. (2008) 13 NWLR (PT 1103) 1; A.I.B. Ltd v Integrated Dimensional System Ltd (2012) LPELR-9710(SC). When an issue for determination is distilled from a combination of competent and incompetent grounds of appeal, the issue would be completely incompetent and liable to be struck out; Akpan v Bob (2010) 17 NWLR (PT 1223) 421, (2010) LPELR-376(SC); Agbaka v Amadi (1998) LPELR-231(SC). In Jev v Iyortyom (2014) LPELR-23000(SC) the Supreme Court, per Okoro, JSC, made it clear that:
this Court has, in a plethora of decisions held that though one can validly lump several related grounds of appeal into one issue and argue same together, if any of the grounds so lumped together is found to be incompetent, then it contaminates the whole issue and renders it incompetent

…………………….C…………………….

as the Court cannot delve into the said issue on behalf of the litigant and excise the argument in respect of the competent grounds from those of the incompetent grounds in the issue.???
This Court, per Nwodo, JCA (of blessed memory) in Aribo v Central Bank of Nigeria (2010) LPELR-4751(CA),concisely put it this way:
it is not the duty of the Court to separate the arguments in respect of the competent ground from arguments in respect of the incompetent grounds. The said issue would be incompetent in its entirety.
See also: Abah v Jabusco (Nigeria) Ltd (supra); ISC Services Ltd v Genak Continental Ltd & Anor(2006) LPELR-7662(CA). Issue 4 as formulated by the Appellant, was distilled from grounds 3 and 5 of the grounds of appeal. While ground 3 is a competent ground of appeal, ground 5 is an incompetent ground. By distilling a single issue for determination from these two grounds lumped together, the entire issue has been contaminated. The Court cannot commence a shifting of the arguments thereon to decipher which argument is in support of which of the grounds of appeal. Issue 4 as formulated by the Appellant is therefore incompetent and is, together with the arguments submitted thereon, hereby struck out.
The three competent issues for determination as formulated by the Appellant are as follows:
1. Whether having regard to the evidence on record, the prosecution proved the offence of obtaining by false pretence contrary to Section 1 (1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006against the Appellant beyond reasonable doubt as required by law. Ground I.
2. Whether the learned trial Judge have jurisdiction with respect to the 3rd count charge under the dishonoured cheque (offences) Act, 2004 having regard to the fact that the alleged offence was committed at Abuja, FCT and the express provisions of Section 3(1) of the Dishonoured Cheque (Offences) Act, 2004. Ground 4
3. Whether having regard to the evidence on the printed record and the circumstance of this case, the prosecution discharged the burden of proof upon which the lower Court could validly convict the Appellant on the 2nd and 3rd counts charge under Section 1(1) of the Dishonoured Cheque (Offences) Act, 2004. Ground 2.
The Appellant indicated that Ground 6 of the grounds of appeal was abandoned. It is accordingly hereby struck out.
For the Respondent, the issues for determination were framed as follows:
1. Whether the trial Court was right when it held that the Respondent had proved its case of obtaining the sum of N7,000,000.00 by false pretence against the Appellant beyond reasonable doubt under the Advance Fee Fraud and Other Related Offences Act, 2006 and proceeded to convict and sentence her accordingly. (Distilled from grounds 1 and 3 of the Notice of Appeal).
2. Whether the trial Court was right when it held that it had jurisdiction to try counts 2 and 3 of the charge bordering on issuance of dishonoured cheques under the Dishonoured cheques Offences Act, Cap. D11 Laws of the Federation of Nigeria 2004. (Distilled from ground 4 of the Notice of Appeal).
3. Whether the trial Court was right when it held that the Respondent had proved its case beyond reasonable doubt on counts two and three on issuing dishonoured cheques of N3,000,000.00 and N7,000,000.00 respectively against the Appellant under the Dishonoured Cheques Offences Act, Cap. D11 Laws of the Federation of Nigeria, 2004 and proceeded to convict and sentence her accordingly. (Distilled from ground 2 of the Notice of Appeal).
The issues, which are similarly worded, shall now be considered.
Issue 1
The Appellant submitted that the prosecution was under obligation to prove, conjunctively and beyond reasonable doubt, the essential elements of the offence in order to prove the guilt of the accused person and secure conviction under the 1st count of the charge pursuant to Section 1(1) (a) of the Advance Fee Fraud and Other Related Offences Act, 2006, which are:
(a) That there was a pretence;
(b) That the pretence emanated from the accused;
(c) That the pretence was false;
(d) That the accused knew of its falsity or did not believe in the truth;
(e) That there was an intention to defraud;
(f) That the thing was capable of being stolen; and
(g) That the accused person induced the owner to part with the property.
The decision of this Court in Apugo v. F.R.N. (2017) 8 NWLR (Pt. 1568) 426 at 451, which followed the decision of the Supreme Court in Onwudiwe v. F.R.N. (2006) 10

…………………….D…………………….

NWLR (pt. 988) 382 at 431 – 432, was cited and relied on. It was submitted that none of the above ingredients of the offence of obtaining under false pretences, the 1st count charge, was established with credible and cogent evidence to sustain the conviction of the Appellant. That the circumstance of this case was founded on a commercial or contractual transaction which created corresponding obligation and therefore civil. It was submitted that neither the proof of evidence nor the evidence on record contained any material fact upon which any of the elements of the crime was established. Learned Counsel for the Appellant argued that Exhibit A, the short-term Loan Agreement between the Appellant and the complainant, was in accord with the complainant’s written statement on EFCC statement form, which was not tendered in evidence but was reproduced at pages 6 to 7 of the Record of Appeal. It was submitted that the said extra judicial statement and Exhibit A, as well as Exhibit D, the petition to EFCC, did not disclose any of the elements of the offence. It was argued that the reliance by the trial Court on Exhibit L, a letter written by an Acting Director, Administration and Human Resources Management of News Agency of Nigeria in response to enquiry by EFCC and tendered through PW2, was wrong. PW2 was not the maker who had no personal knowledge of it. The maker of Exhibit L was not called to enable defence cross examine him on its contents. It was submitted that, assuming without conceding, the prosecution proved any of the elements, all the essential elements were to be proved conjunctively before the prosecution would have discharged the burden of proof. The prosecution was not entitled to an order of conviction having not proved the elements of the offence beyond reasonable doubt. The Court was urged to resolve this issue in favour of the Appellant and against the prosecution.
For the Respondent, it was submitted that the reliance on the extrajudicial statement of the PW1 is misplaced. The extrajudicial statement of a witness has no probative value. The only use it can be put to is to contradict the witness in order to show that he is not a witness of truth; relying on Kayode & Ors v. State (2012) LPELR-8367 (CA) 1 at 75. The said extra-judicial statement of PW1 was not tendered and admitted in evidence. The Appellant’s counsel, who relied on it in his Brief, did not deem it necessary to tender same in evidence for the purpose of using it to contradict the PW1. The Court was urged to discountenance any reference or arguments based thereon. The evidence of PW1 was relied on to submit that the contention of the Appellant’s counsel that what transpired between the Appellant and the PW1 was a mere civil contract lost sight of the fact that by Section 1 (1) (a) of the Advance Fee Fraud and Other Related Offences Act it is immaterial that the property was obtained or delivered through through the medium of a contract provided that the obtaining or delivery was induced by false pretence. It was submitted that the trial Court rightly found that there was no contract whatsoever for the supply of diesel awarded by the NAN to the Appellant as a result of which the PW1, even though he did not have the money, had to source for it and deliver same to the Appellant with the hope of making a gain N1,400,000.00 monthly from the Appellant for seven months. The trial Court came to this conclusion conjunctively and disjunctively by virtue of the testimony of PW2, Exhibit L and the ipse dixit or admission of the Appellant in cross-examination. On the attack of the Appellant’s Counsel on Exhibit L, it was submitted that even without the said Exhibit L, the Appellant had admitted under cross-examination, page 129 of the Record of Appeal, that the NAN used to give supply of diesel by way of an LPO. She said that she had the LPO, but she did not produce same to show that she actually had a contract from the NAN to supply the said diesel to the NAN. It was either that the said LPO did not exist or would disprove the assertions of the Appellant if produced. By virtue of Section 167 (d) of the Evidence Act, 2011, evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. The case of Ogunniyi v. Hon. Minister of FCT (2014) LPELR-23164 (CA) 1 at 35-37 was cited and relied upon. It was submitted that the very weighty evidence fitted in with the definition of false pretence as in Section 20 of the Act and that by the said evidence, the ingredients of the offence had been proved by the prosecution. The Court was urged to resolve this issue

…………………….E…………………….

in favour of the Respondent against the Appellant.
In the Reply Brief, the Appellant submitted, with respect to the extra judicial statement, that the Court was obliged to look at same and act on it or draw necessary inference from it even when it is not tendered and admitted in evidence. That a Court can make use of and rely on the documents in its file when writing judgment even if they were not tendered and admitted in evidence. The case of Oyewole v Akande (2009) 15 NWLR (pt. 1163) 119 at 125 was cited and relied upon. It was argued that the said extra judicial statement of PW1 and Exhibit A, the loan agreement, would show that the allegation of false pretence made against the Appellant was an afterthought made to criminalize and persecute the Appellant who had enjoyed a long standing revolving loan transaction with the complainant, PW1. It was further submitted that not having filed a respondent’s notice pursuant to Order 9 Rule 2 of the Court of Appeal Rules the Respondent could not urge the Court to invoke Section 167 (d) of the Evidence Act, 2011. It was also submitted that the argument regarding the said provisions of Section 167 (d) of the Evidence Act, 2011 was not raised at the lower court and being a fresh issue, could not be raised at this stage before this Court without leave. The Court was urged to resolve the issue in favour of the Appellant.
Resolution.
The Appellant was charged in count 1 with obtaining money by false pretences, contrary to Section 1(1)(a) Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act. Section 1(1)(a) provides:
1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person, in Nigeria or in any other country, for himself or any other person; or
(b) induces any other person, in Nigeria or in any other country for himself or any other person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under this Act.
Section 1(3) provides:
1 (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
False pretence is defined in Section 20 of the Act as follows:
false pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.
To secure a conviction for obtaining by false pretences, the prosecution must prove to the satisfaction of the Court:
1. that there was a pretence
2. that the pretence emanated from the accused person
3. that the pretence was false
4. that the person knew of the falsity of the pretence, did not believe its truth
5. that there was an intention to defraud;
6. that the property or thing is capable of being stolen;
7. that the accused person induced the owner to transfer his whole interest in the property.
See: Alake v The State (1991) 7 NWLR (PT 205) 591; FRN v Amah (2016) ALL FWLR (PT 818) 889; Ijuaka v COP (1976) LPELR-1466 (SC); Gayus v Federal Republic of Nigeria (2017) LPELR-43023(CA); Aguba v Federal Republic of Nigeria (2014) LPELR-23211(CA); Ugo-Ngadi v Federal Republic of Nigeria (2015) LPELR-24824(CA). The elements of this offence thus reveal that there is not just the requirement for the actus reus to have been committed but the accused person must also demonstrate an intention to defraud, the mens rea must be established. The standard common law test of criminal liability is expressed in the Latin phrase actus reus non facit reum nisi mens sit rea, meaning: “the act is not culpable unless the mind is guilty”. It is a fundamental principle of criminal law that a crime consists of both a mental and a physical element. Mens rea, a person’s awareness of the fact that his or her conduct is criminal, is the mental element, and actus reus, the act itself, is the physical element; West’s Encyclopedia of American Law, edition 2. Copyright 2008. These two requirements were succinctly described by Tobi, JSC in Abeke v The State (2007) LPELR-31(SC) at page 18 of the E-Report in these terms: Mens rea means a guilty mind. And actus reus means a guilty act. Put

…………………….F…………………….

in another language, the guilty mind instigates the guilty act or flows into the guilty act.
See also Mohammed v The State (1991) LPELR-1901(SC); Eyo v The State (2017) LPELR-43332(CA). Mens rea revolves on the intent of the accused person. If the accused person intended his action and proceeds to carry it out, then the mens rea and actus reus have been proved. Except it is a strict liability offence, if the prosecution is unable to prove the mens rea of the accused person in a criminal trial, notwithstanding the actus reus, the accused person may escape conviction as the offence would not have been proved.
The burden on the prosecution is discharged upon the proof of the elements of the offence beyond reasonable doubt. The phrase proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, but, simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness; Afolalu v State (2010) 6-7 MJSC 187; John Agbo v. State (2006) 1 S.C. (PT. II) 73; The State v. Azeez(2008) 4 S. C. 188; Shande v. State (2005) 12 MJSC 152; Ilodigiwe v. State (2012) LPELR-9342(SC). It is now to see if by the evidence adduced by the Respondent, the burden on the prosecution to prove the offence beyond reasonable doubt had been sufficiently discharged so as to justify the conviction of the Appellant.
PW1, the complainant testified, page 109 of the Record of Appeal:
Sometimes (sic) in 2011, the accused person came to me that she got a supply to supply NAN with 22 trucks of diesel. I was shown the L.P.O. She said she didn’t have enough money to finance the supply. She asked for a loan of N10, 000,000 to do the supply and that any gain from the business we will share equally. I told her that I do not have such a (sic) money, but that I will look around to see if I can get the money. I was able to get N7,000,000 and I gave her the seven million and I told her that we shall enter into an agreement between me and her we signed the agreement and I gave her the sum of N7, 000,000 and she went for the business.
Broken down, this piece of evidence reveals that the Appellant had initially requested for a loan of N10, 000,000.00 for a diesel supply business. PW1 was shown the LPO for the supply of 22 trucks of diesel to NAN and thereupon was persuaded to facilitate the loan of the sum of N7,000,000.00 to the Appellant. The Appellant who testified in her defence as DW3 admitted she borrowed the sum of N7,000,000.00 from PW1. She said she was a registered contractor with NAN for the supply of diesel and construction of complexes with her business Dee Gifted Nigeria Enterprises. Under cross examination, page 129 of the Record of Appeal, she said:
yes I obtained N7,000,000 from Mr. Okeke that I had a contract to supply diesel NAN used to give the supply of Diesel by way of an L.P.O. I don’t have the L.P.O. here now I will bring it.
The said LPO upon which PW1 was persuaded to loan money was however not produced at all, in spite of the assurance by the Appellant that she would bring it.
In the course of investigation, EFCC wrote a letter, Exhibit K, to the Director of NAN seeking the following information about the alleged contract to supply 22 trucks of diesel:
a. Confirm if your Agency actually award (sic) the supply of the above mentioned commodity and to whom it was awarded;
b. The criteria used in

…………………….G…………………….

awarding the supply;
c. The amount approved for the supply, whether the amount has fully been paid or not; and
d. Any other relevant information that may assist in the investigation.
NAN responded to this enquiry by letter, Exhibit L. The said Exhibit L, which was addressed to EFCC, was written on behalf of NAN by one D.M. Bitiyong, the Ag. Director (A/HRM) Managing Director/CEO. The said letter reads in part:
I am directed to inform you that the company, Dee Gifted Nig. Ltd, actually registered with the Agency as a contractor in 2008 and also submitted a quotation for the supply of automatic Gas Oil (AGO) Diesel but was not successful.
I am to add that from our records, the Agency did not award such a contract for the supply of diesel to any company.
The said Exhibit L was admitted without any objection by the Appellant’s Counsel. The learned trial Judge relied on the said Exhibit L.
Generally, where no objection is raised when a document is offered in evidence, the document will be admitted and acted upon and the opposing party cannot later complain on its admissibility, unless the document is primarily inadmissible in law. This is because a document must first be admissible before it can be acted upon by the trial Court, whether or not objection was raised at the point of tendering the document. The Apex Court, per Musdapher, JSC (as he then was) in Omega Bank Nigeria Plc v O.B.C. Ltd (2005) LPELR-2636(SC), (2005) 8 NWLR (PT 928) 547, at pages 28-29 of the E-Report, unequivocally stated:
The law is settled that a Court can only act upon evidence that is legally admissible. It cannot, and it has no discretion to admit and act upon evidence which is legally inadmissible, even with the consent of the parties. SeeKale v Coker (1982) 12 SC 252; Alade v. Olukade (1976) 2 SC 183.
Exhibit L was tendered by PW2 as what EFCC received in response to their enquiry, Exhibit K, for information regarding the case being investigated. To that extent, Exhibit L was admissible. However, admissibility and weight to be attached to a document amount to two different issues. Emphasizing the difference between admissibility and the weight that is to be attached to a document, Tobi, JSC in Omega Bank Nigeria Plc v O.B.C. Ltd (supra) at pages 36 – 37 of the E-Report, said:
let me take the issue of non-maker of the document tendering it. It is the general principle of law that a maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law;
(1) The maker is dead. (2) The maker can only be procured by involving the party in so much expenses that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made, after all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. As a matter of law, documentary evidence can be admitted in the absence of the maker. See Igbodim v. Obianke (1976) 9-10 SC 179. After all relevance is the key of admissibility. In the hierarchy of our adjectival law, probative value comes after admissibility. And so a document could be admitted without the Court attaching probative value to it.
See also: Amosun v INEC (2010) LPELR-4943(CA); Wuyah v Jamaa Local Government, Kafanchan (2011) LPELR-9078(CA); Statoil Nigeria Ltd v Inducon (Nig) Ltd (2012) LPELR-7955(CA);Odumade v Ogunnaike (2010) LPELR(SC).
PW2 was not the maker of Exhibit L but could tender Exhibit L as what he received. The veracity of the contents of Exhibit L cannot however be supplied by PW2. The maker of Exhibit L was not called in evidence. No opportunity was thus provided for cross examination of the maker of Exhibit L in order to establish the truth of its contents. The Appellant therefore rightly contended that the trial Court ought not to have relied on Exhibit L. It was admissible in evidence, without doubt, but it had no probative value as it was not tendered by its maker.
Notwithstanding this fact, the evidence adduced before the trial Court was to the effect that the Appellant had told the complainant, PW1, that she had a contract to supply 22 trucks of

…………………….H…………………….

diesel, and she showed the LPO to him. In proof of her defence, she said that she had the LPO and would produce it before the trial Court. She never did so. The Respondent’s Counsel urged the Court to invoke the provisions of Section 167(d) of the Evidence Act, 2011. For the Appellant, it was contended that this point was not raised in the lower Court and was therefore a new issue which could only be raised with leave of Court. It is correct that Section 167(d) was not specifically invoked at the trial Court. However, the learned trial Judge noted that the Appellant failed to produce the alleged LPO, which she had admitted as DW3 was used to award the contract in issue to her, pages 169 -170 of the Record of Appeal. The effect of failing to produce evidence which is supposed to be in possession of the party falls under the provisions of Section 167(d). To this extent, I do not see it as a completely fresh issue.
By virtue of the provisions of Section 167 (d) of the Evidence Act, 2011, the Court may presume that:
evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. In order to apply these provisions, the Court must be satisfied that:
a. That the evidence exists;
b. That it could be produced;
c. That it has not been produced; and
d. That it has been withheld by the person who could produce it; Musa v Yerima (1997) LPELR-1928(SC); Akindipe v The State (2012) LPELR-9345(SC); Umar v The State (2014) LPELR-23190(SC); Smart v The State (2016) LPELR-40827(SC). The presumption would apply against a party who has withheld a particular piece of evidence; Oguonzee v The State (1998) 4 S.C. 110, (1998) LPELR-2357(SC).
The Appellant testified that she was in possession of the LPO showing a contract for the supply of 22 trucks of diesel. She admitted that she showed the said LPO to PW1, this was to convince him of the authenticity of her request for a loan. She said under cross examination that she had the LPO and that she would bring it. The said LPO would have countered Exhibit L and would have validated her evidence. Yet she failed to produce the said LPO. The only postulation would be that the alleged LPO was not an authentic document and that it would have exposed her story to further scrutiny. Interestingly, DW4, Pastor Usman Stephen Abunka, who testified for the Appellant said, page 130 of the Record of Appeal:
I got to know the accused was owing Mr. John Okeke the sum of N7, 000,000 only. I tried to find out how come? (sic) She told me that she collected the money to execute a contract with the customs in Karu site and in Kaduna and Minna.
This is an entirely different account. Apparently, the Appellant made no mention to the clergyman, DW4, of an LPO and a contract from NAN to supply 22 trucks of diesel. DW4 said absolutely nothing about the LPO and a diesel supply of 22 trucks to NAN. It can then be extrapolated that the Appellant knew that there was no such contract for the supply of 22 trucks of diesel in existence but that she made up the alleged LPO to buttress her story.
The evidence adduced before the trial Court thus demonstrates that there was a pretence by the Appellant. The Appellant pretended to have secured a contract to supply 22 trucks of diesel to NAN. In furtherance of the pretence, she showed a purported LPO to PW1 as being evidence of the contract. The contract and the alleged LPO were false. The Appellant who failed to produce the alleged LPO after testifying that she had it in her possession, knew of the falsity of the pretence, and did not believe its truth.
One fundamental element of the offence is that there must be an intention to defraud. It must be established that the accused person had the intention to defraud the complainant. Intent to commit a crime could range from a general intention to do an illegal act, to a premeditated objective to commit a particular crime. The Appellant’s Counsel had argued that the extra judicial statement of PW1, which was not tendered in evidence, would have revealed that the Appellant and PW1 had a prior relationship whereby the Appellant received loans from PW1 which she would subsequently pay back. He invited this Court to look into the case file and examine the said extra judicial statement, contending that this would expose the fact that there was no fraudulent intent by the Appellant. Learned Counsel for the Appellant however did not consider the very pedestrian position of the law that facts or statements which are not submitted before the trial Court in evidence cannot be taken into

…………………….I…………………….

account by the trial Court in its consideration of the guilt or otherwise of the accused person. Statements contained in proof of evidence, which are not tendered in Court, do not constitute legal evidence. In criminal trial, an extra-judicial statement is used for the cross examination of the witness who made the statement in order to discredit him. If the maker of the extra judicial statement was not called to testify, his extra judicial statement may only be tendered to prove that it was made in the course of investigation and no more. The contents thereof, which were not made on oath, cannot be relied upon as evidence; The State v. Ogbubunjo (2001) LPELR-3223(SC); (2001) 1 S.C. (PT 1) 90, (2001) 2 MJSC 145. In Esangbedo v. The State (1989) LPELR-1163 (SC), (1989) 4 NWLR (PT 113) 57, the Supreme Court, per Nnaemeka-Agu, JSC, unequivocally said, page 8 of the E-Report:
We cannot look at the extra-judicial statements of P.W.1, P.W.2, P.W.4 and P.W.9, which were not tendered as exhibits during the trial because those statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony to show that their testimony in Court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statement that is in conflict with instant testimony and give him the opportunity to explain the inconsistency. See Christopher Onubogu v The State (1974) 9 S.C. 1, at pp. 17-19; R. v Fraser &Anor. (1956) 40 Cr. App. R. 160, p.163.
See also Okeke v The State (2016) LPELR-40024(CA) where this Court, per Ogunwumiju, JCA, concisely put it this way, page 18 of the E-Report:
The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side. The admissible evidence is evidence on oath in open Court by the witness which is subject to cross examination by the adverse party. The only time when an extra judicial statement of a witness is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath. The defence witnesses will ask for the statement and give reasons to the Court for doing so.”
The case of Oyewole v Akande (supra) relied on the Appellant’s Counsel does not advance the arguments for the Appellant. While a Court is entitled to look at the documents in its file which were not tendered as exhibits, this is not at large. The Court even in that event cannot rely on a document that has not been tendered in evidence and ignore evidence actually presented by the parties. The position of the law remains that extra judicial statements which were not tendered in evidence in criminal proceedings cannot be relied upon. The extra judicial statement of PW1 which was not tendered by the prosecution, and which the Appellant failed to use to contradict PW1 in evidence, cannot therefore be looked into by this Court.
In any event, it is irrelevant for purposes of the instant case that the Appellant and PW1 earlier had a revolving loan business. The particular business in issue herein was tied to the diesel supply of 22 trucks to NAN for which an alleged LPO was shown to PW1. The business in issue was consummated after PW1 was shown the alleged LPO. It was therefore different from the usual revolving loan business the parties had previously enjoyed. From the evidence of the Appellant as DW3, the usual revolving loan as previously enjoyed by the Appellant courtesy of PW1 did not involve the formality of an agreement such as Exhibit A, which PW1 insisted should be witnessed by the Appellant’s blood relation. Her brother signed it as witness. The loan granted which led to these proceedings was therefore anchored on the alleged contract for the supply of 22 trucks of diesel to NAN, which has not been proved to be genuine. See also the evidence of DW4 highlighted above. The Appellant’s deliberate action demonstrated that she intended to defraud the complainant, PW1, and induce him to make available to her the sum of N7, 000,000.00. Based on the Appellant’s representations to him, PW1 went ahead to raise the sum of N7, 000,000.00 and gave to her. By Exhibit A, the agreement between them, the Appellant was to remit the sum of N1, 400,000.00 monthly to PW1 for seven months to pay back the

…………………….J…………………….

principal sum of N7, 000,000.00. PW1 parted with the said N7, 000,000.00 upon the representation that there was an alleged contract for the supply of 22 trucks of diesel to NAN. He did not have repaid to him, either the principal sum or the agreed monthly profit.
I agree completely with the conclusion reached by the learned trial Judge, page 172 of the Record of Appeal, that:
From a careful perusal and consideration of the totality of the evidence before the Court, the accused made the pretence as charged, that the pretence was false to her knowledge and inferentially, that she had intention to defraud. The accused person had done all the acts necessary to deceive the nominal complainant, so as to induce him to part with his money. It is my considered view that the prosecution has proved the first count of the offence of obtaining by false pretence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences, Act, 2006, and punishable under Section 1(3) of the same Act. I so hold.
I see no reason to disturb this conclusion. Issue 1 is thus resolved against the Appellant.
Issue 2
It is not in dispute that the Appellant issued two cheques to PW1 which were returned unpaid. The evidence adduced was that the first cheque, Exhibit B, which was for N3, 000,000.00, was issued to him in front of St John’s Catholic Church, Mararaba. The second cheque, Exhibit C, for the sum of N7, 000,000.00 was issued to him while she was still in detention at Police Force CID, Area 10, Garki Abuja. DW4 and DW5 both said that Exhibit C was issued as a condition precedent for bail. The Appellant’s Counsel has contended that by the provisions of Section 3 (1) of the Dishonoured Cheques (Offences) Act which provides the procedure for trial of offences under the Act, the lower Court in Nasarawa State had no jurisdiction to entertain count 3 of the charge regarding Exhibit C. The lower Court cannot confer jurisdiction on itself where it has none, relying on Nigeria Airways Ltd v Mahdi (2014) 11 NWLR (PT 1417) 32 at 46-47.
For the Respondent, reliance was placed on the provisions of Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; as well as Section 4 of the Penal Code Law Cap 89 Laws of Northern Nigeria 1963 applicable in Nasarawa State. The decisions in Nyame v FRN (2010) 7 NWLR (PT 1193) 344 at 396 in which similar provisions in the Penal Code Act Laws of the Federation (Abuja) 1990 were considered, and Njovens v State(1973) NSCC 257 at 271 were also cited and relied upon. The initial element of the offence was committed in Nasarawa State. The Court was urged to uphold the conclusion of the trial Court that any of the jurisdictions in which an element of the offence occurred has territorial jurisdiction to hear and determine the case. That the lower Court of Nasarawa State therefore had jurisdiction to try the offence.
In the Reply Brief, the Appellant contended that the authorities relied upon y the Respondent were not applicable, having regard to the provisions of the Dishonoured Cheques (Offences) Act.
Resolution
The issue of jurisdiction is always a threshold issue. Jurisdiction is conferred on a Court by the Constitution or by statute, as may be permitted by the Constitution; Adetayo v Ademola (2010) LPELR-155(SC); Adah v NYSC (2004) 19 NSCQR 220; Utih v Onoyivwe (1991) 1 SCNJ 25. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is so radical that it forms the foundation of adjudication. Jurisdiction was described by the Court, per I.T. Muhammad, JCA (as he then was) in Sudan Airways Co. Ltd v Abdullahi (1998) 1 NWLR (PT 532) 156 at 163 as the spinal cord of a Court of law. The jurisdiction or authority of the Court is controlled or circumscribed by the statute creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. A complaint querying the jurisdiction or authority of a Court to hear a matter is foundational to the legality of any decision flowing from the proceedings before that Court over such matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo II v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (PT. II) 240.

…………………….K…………………….

A Court is said to have jurisdiction and therefore competent to entertain a matter when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court of the jurisdiction to hear and determine the suit; Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (PT 510) 549; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd [2008] 12 S.C. (PT. II) 240.
Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes; Idemudia v Igbinedion University, Okada (2015) LPELR-24514(CA); Patil v FRN (2015) ALL FWLR (PT 775) 228; Ibori v FRN (2009) ALL FWLR (PT 487) 157. Territorial jurisdiction was described in Dariye v FRN (2015) LPELR-24398(SC) at page 29 of the E-Report thus:
Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.
Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area. Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter. Usually, criminal jurisdiction is dependent on the enabling law setting out the jurisdiction of the Court against the charge preferred against the accused person. In order to have jurisdiction, the Court must therefore be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law; Onwudiwe v Federal Republic of Nigeria (2006) LPELR-2715(SC). The Court cannot exercise jurisdiction where the offence or crime is outside the enabling law;Bakkat v FRN (2013) LPELR-22817(CA). Criminal jurisdiction may also be exercised by a Court where elements of an alleged crime have been committed within the territorial jurisdiction of the Court; Njovens v State (1973) LPELR-2042(SC), (1973) All NLR 371; Nyame v Federal Republic of Nigeria (2008) LPELR-8872(CA).
The jurisdiction of the Nasarawa State High Court to hear and determined criminal proceedings is provided by Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The criminal jurisdiction is limited to offences that occur within the territorial jurisdiction of the State. Sections 4(1) and (2) of the Penal Code Law of Northern Nigeria 1963, applicable in Nasarawa State and relied on by the Respondent, provides:
(1) Where by the provisions of any law of Northern Nigeria the doing of an act or the making of any omission is made an offence, those provisions shall apply to every person who is in Northern Nigeria at the time of his doing the act or making the omission.
(2) Where any such offence comprises several elements and any acts, omissions or events occur which, if they all occurred in Northern Nigeria would constitute an offence, and any of such acts, omissions or events, which if they occurred in Northern Nigeria would be elements of the offence, occur elsewhere than in Northern Nigeria then
(a) if the act or omission, which in the case of an offence committed wholly in Northern Nigeria would be the initial element of the offence, occurs in Northern Nigeria, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in Northern Nigeria; and
(b) If that act or omission occurs elsewhere than in Northern Nigeria, and the person who does that act or makes that omission afterward enters Northern Nigeria, he is by such entry guilty of an offence of the same kind, and is liable to same punishment, as if that act or omission had occurred in Northern Nigeria and he had been in Northern Nigeria when it occurred.
These provisions received

…………………….L…………………….

judicial interpretation in Njovens v State (supra) where, at pages 35 – 36 of the E-Report, the noble Law Lord, Coker, JSC said:
“Admittedly Section 4 (2) of the Penal Code Law is not easy to construe. The Section is concerned with an offence that comprises several elements and identifies these elements with “acts, omissions or events”. It is clear therefore that the “element” in the Section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The “initial element” to which reference is made in the Section is the initial act or omission concerned and for the purpose of applying Section 4 (2) it is necessary to look for that “initial element”. If (a) that “initial act or omission” occurs in the State even though the other “elements” do not, the person who does that “initial act or omission” is punishable by the State under the Penal Code; on the other hand, if (b) that “initial act or omission” occurs outside the State, the other or others occurring within the State and the person who does that “initial act or omission” afterwards enters the State, he is by such entry triable by the State under the Penal Code.”
See also: Mbah v State (supra), (2014) LPELR-22729(SC); Nyame v Federal Republic of Nigeria (CA) (supra); Nyame v Federal Republic of Nigeria (2010) ALL FWLR (PT 527) 618, SC; Manya v State (2012) LPELR-15185(CA). Further expounding on the provisions of Section 4(2) above, this Court, per my Lord, Nweze, JCA (as he then was) in the case of Manya v The State (supra) at pages 32 – 33 of the E-report said:
Simply put, the said Section 4 (2) is concerned with an offence that consists of several elements. In Nyame v State (supra), pages 45-46, Adekeye JSC, who read the leading judgment of the Apex Court, approvingly restated the above interpretation of the said section. Interestingly, Adekeye JSC in the said case [page 46] laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the offence occurred in the particular place where the accused is being tried.
(Emphasis mine).
Section 1(1) of the Dishonoured Cheques (Offences) Act defines the offence in relation to dishonoured cheques as follows:
(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
Section 1(2) further provides:
For the purposes of Subsection (1) of this section
(c) a person who to 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

…………………….M…………………….

drawer of the cheque and the person to whom the cheque was issued, notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified.
Section 3(1) thereof provides the procedure for trial of offences under the Act as follows:
Offences under this Act shall be triable summarily by the High Court of the State where the offence was committed and the procedure applicable in the case of summary trial of offences before such Court shall apply to the same extent for the purposes of trials for offences under this Act.
The evidence adduced before the trial Court would demonstrate that cheque in issue Exhibit C was not simply issued in Abuja. Its issue followed earlier credit of N7, 000,000.00 obtained from PW1 by the Appellant in Nasarawa State for a purported contract. The initial element of the offence, which was the obtaining of credit, took place in Nasarawa State. The issuance of Exhibit C in Abuja flowed from that initial element. Being well guided by the direction given in the pronouncements in Njovens v State (supra); Nyame v Federal Republic of Nigeria (S.C.) (supra) per Adekeye, JSC, as highlighted in Manya v State (supra), it will be clear that the initial element of the offence took place in Nasarawa State. The issue of Exhibit C in Abuja was simply another element of the offence. On the issue of territorial jurisdiction, the learned trial Judge held, page 165 of the Record of Appeal:
I am of the considered view which I hold that any of the jurisdictions in which an element occurred has territorial jurisdiction to hear and determine the case between the parties, as such, this Court has territorial jurisdiction based on where the contract was entered and where the alleged offence was committed to entertain the case.
Going by the judicial pronouncements on the provisions of Section 4(2) of the Penal Code Law in combination with Sections 1(1) and 3(1) of the Dishonoured Cheques (Offences) Act, therefore, the lower Court did have jurisdiction to try the offence relating to Exhibit C against the Appellant as charged. Issue 2 is thus resolved against the Appellant.
Issue 3
The Appellant contended that the evidence on record regarding the issue of Exhibits B and C did not satisfy the elements of the offence under Section 1(1) of the Dishonoured Cheques (Offences) Act. The evidence adduced did not prove that Exhibits B and C were issued in settlement of the Appellant’s obligation under Exhibit A. The Appellant had testified that the cheques were not meant to be cashed. PW2 admitted under cross examination that he did not investigate the circumstances under which the Appellant issued Exhibits B and C. The evidence did not establish the requisite mens rea of the Appellant beyond reasonable doubt to justify her conviction on counts 2 and 3 of the Charge. The Court was urged to resolve this issue in favour of the Appellant.
The Respondent, on the other hand, invited the Court to note that out of the three elements of the offence as specified in Section 1(1), the Appellant had only contested that the cheques were issued by the Appellant for the purpose of obtaining credit. Learned Counsel submitted that a fundamental question to be addressed was that if the cheque was not issued for the purpose of obtaining credit or in settlement of the financial obligation of the Appellant, what were they issued for? For learned Counsel, the intendment of the Act found in its long title provided the answer. It was submitted that the circumstances under which Exhibits B and C were issued fitted into the meaning of obtaining credit by means of cheque. It was submitted that the trial Court had evaluated the evidence and was right in its conviction of the Appellant.
Resolution
As rightly submitted by the Respondent, the intendment of the Dishonoured Cheques (Offences) Act is given in the long title, which introduces the Act as follows:
An act to make it an offence for any person anywhere in Nigeria to induce the delivery of any property or to purport to settle a lawful obligation by means of a cheque which when presented within a reasonable time is dishonoured on the grounds that no funds or insufficient funds were standing to the credit of the drawer of the cheque, and for matters connected therewith.
(Emphasis mine)
Elements of the offence are:
(1) the person obtained credit for himself or any other person;
(2) the cheque was presented for payment within three months from the date of issue of the cheque; and
(3) Upon presentation of the

…………………….N…………………….

cheque it 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.
The argument of the Appellant is centred on the contention that the Appellant did not issue the cheques in return for credit she obtained. To my mind, the question posed by the Respondent is pertinent. For what purpose were the cheques then issued? The Appellant had before the issue of the cheques collected the sum of N7, 000,000.00 from PW1 with the attached condition that N1, 400,000.00 would be paid monthly for seven months. In other words, by their agreement, Exhibit A, the total sum of N9, 800,000.00 was due to PW1. DW3 admitted that she initially issued the first cheque, Exhibit B, for N3, 000,000.00 to PW1 under this circumstance, page 127 of the Record of Appeal:
Mr Okeke said he wanted the cheque so as to show the person he borrowed money from and I issued him a cheque of N3, 000,000 only.
She did not say that she was compelled or coerced to issue the cheque. On the further issue of Exhibit C, the Appellant said, page 128 of the Record of Appeal:
The CP advised me to issue another N7, 000,000 cheque so that I continue to pay installments (sic) to the end. I issued the N7, 000,000 cheque.
(Emphasis mine)
Once again, from her evidence, no compulsion or coercion was exerted on the Appellant to compel the issue of Exhibit C. DW4 had said in evidence, page 130 of the Record of Appeal:
I tried to bail her by informing the CP Anti fraud I was allowed to bail her with conditions. The condition was that she should issue a cheque of N7, 000,000 to authenticate the fact that she will pay the money if she is released from the cell. She issued the cheque and was released to me.
DW5 was Inspector Dogo Chiroma, then of the Police Special Fraud Unit at the Force CID area 10 Garki, Abuja. He said in evidence, page 131 of the Record of Appeal:
Her bail was sought for and the bail condition was for her to deposit a cheque covering N7, 000,000 which she did and was granted bail
I must observe that I still do not see any compulsion exerted on the Appellant. The evidence of the Appellant was that she decided to act on the advice of the CP and issue the cheque. The cheques were issued to settle an existing lawful obligation. She was well aware of the implications of issuing a cheque without funding the account. From her evidence, upon being questioned by her account officer as to why she issued a cheque knowing fully well she had no money in the account, she responded, page 128 of the Record of Appeal:
I told my account officer that I did not know that he was depositing it in the Bank.
It must be noted that there was no evidence that the parties had an agreement that the cheques should not be lodged for payment. The argument that the cheques were not meant to be presented for payment is therefore quite lame. Cheques are not issued for the fun of it, more so when drawer has existing financial obligations to the drawee. The Apex Court, per Oguntade, JSC, in Abeke v State (supra) at page 13 of the E-Report, described the inferences of the issuance of a cheque in these terms:
The issuance of a cheque has certain connotations in law. A cheque issued by a drawer and accepted by the drawee serves two purposes. One is that of documenting the particular transaction. The other is that, it is a medium of payment, the issuance of which has far reaching implications in law.
Contributing to the said decision of the Supreme Court, Tobi, JSC at page 22 of the E-Report, described a cheque thus:
A cheque is a written order to a bank to pay a certain sum of money from one’s bank account to oneself or to another person. It is for all intents and purposes an instrument for payment. It metamorphoses into physical cash on due presentation at the bank and that makes it legal tender.”
The cheques were certainly not issued in vacuum. The Appellant owed PW1 the sum of N7, 000,000.00, which she had borrowed from him, as well as other sums of money as profit, following their agreement, Exhibit A. Indeed, from her testimony, she already had the practice of issuing post-dated cheques to PW1 on account of previous loan transaction, so issuing cheques to the complainant was by no means a new practice to her.

…………………….O…………………….

Issuance of a dud cheque is a criminal offence by virtue of the Dishonoured Cheques (Offences) Act, 2004; Fajemirokun v Commercial Bank Nigeria Ltd (2009) LPELR-1231(SC). The Appellant had issued two dud cheques, Exhibits B and C, in settlement of an existing obligation arising from a contract she had with the Appellant, Exhibit A. The cheques, Exhibits B and C, were presented for payment within three months of their issue and they were dishonoured. The elements of the offence were therefore proved. I see no reason to disturb the conclusion of the trial Judge in this regard. I therefore also resolve Issue 3 against the Appellant.
All issues formulated for determination in this appeal are thus resolved against the Appelant. The appeal is without merit. It accordingly fails and is hereby dismissed. The conviction and sentence of the Appellant is hereby affirmed.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege to read before now the draft of the Judgment of my Lord, Otisi JCA just delivered.
In the said judgment, his Lordship has exhaustively dealt with all the issues submitted to this Court for the determination of the Appeal, and I wholly agree.
Suffice it for me to adopt the reasoning and conclusion as mine, and to abide by the consequential orders contained in the said Judgment.
JOSEPH EYO EKANEM, J.C.A.: I read before now the lead judgment of my learned brother, Otisi JCA. I agree with the reasoning and the conclusion contained therein which I adopt as mine. I also dismiss the appeal for being devoid of merit and affirm the decision of the trial Court.
Appearances