Elias v. F.R.N (2021)

[2021]16NWLR495

Eliasv.F.R.N.

JOHN BABANI ELIAS

V.

FEDERAL REPUBLIC OF NIGERIA

SUPREME COURT OF NIGERIA

SC.576/2016

MARY UKAEGO PETER-ODILI, J.S.C. (Presided)

OLUKAYODE ARIWOOLA, J.S.C.

JOHN INYANG OKORO, J.S.C.

AMINA ADAMU AUGIE, J.S.C.

EJEMBI EKO, J.S.C. (Read the Leading Judgment)

FRIDAY, 8TH MAY 2020

APPEAL – Finding of fact – Where not appealed against – Subsistenceof.

BANKING – “Draft” – “Cheque” – Meanings of – Differencebetween.

BILLS OF EXCHANGE – “Draft” – “Cheque” – Meanings of -Difference between.

CONSTITUTIONAL LAW – Delivery of judgment – Time limittherefor – Section 294(1), 1999 Constitution – Non-compliancetherewith – Whether will invalidate or nullify judgment – Onuson appellant.

CONSTITUTIONAL LAW – Right to fair hearing – Right of accusedperson to be informed promptly in language he understandsand in details the nature of offence – Section 36(6)(a), 1999Constitution.

496

COURT – Delivery of judgment – Delay in delivery of judgment -Whether occasioned miscarriage of justice – How determined.

COURT – Delivery of judgment – Time limit therefor – Section 294(1),1999 Constitution – Non-compliance therewith – Whether willinvalidate or nullify judgment – Onus on appellant.

COURT – Issues before the court – Issue suo motu – Where raised -When court need not invite parties to address it thereon.

COURT – Jurisdiction of court – Jurisdiction of court in criminalmatter – Determination of – What court considers.

COURT – Restitution – Power of court to order defendant or convictto pay compensation to victim of offence – Section 319(1)(a),Administration of Criminal Justice Act, 2015.

CRIME – Offences – Offence of forging or uttering negotiableinstrument – Ingredients of – Section 1(2)(b), MiscellaneousOffences Act, 2004 – Forgery – Whether ingredient of offence.

CRIME – O ffences – Offence of forging or uttering negotiableinstrument – Substance of – Section 1(2)(b), MiscellaneousOffences Act, 2004.

CRIME – Offences – Offence of forging or uttering negotiableinstrument – What constitutes – Punishment therefor – Section1(2)(b), Miscellaneous Offences Act, 2004.

CRIMINAL LAW AND PROCEDURE – Administration of CriminalJustice Act 2015 – Section 319 thereof – Whether creates orprescribes penalty for any offence.

CRIMINAL LAW AND PROCEDURE – Administration of CriminalJustice Act, 2015 – Retrospective application of.

CRIMINAL LAW AND PROCEDURE – Charge – Defect thereon- Failure of accused person represented by counsel to objectthereto – Presumption raised thereby.

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CRIMINAL LAW AND PROCEDURE – Charge – Defect thereon- Objection thereto – When to raise – Section 167, CriminalProcedure Act.

CRIMINAL LAW AND PROCEDURE – Charge – What it mustcontain – Section 152, Criminal Procedure Act.

CRIMINAL LAW AND PROCEDURE – Conviction – Bodycorporate – Where convicted of offence punishable by termof imprisonment without option of fine or to death underMiscellaneous Offences Act, 2004 – Option open to cou rt -Section 3(2), Miscellaneous Offences Act, 2004.

CRIMINAL LAW AND PROCEDURE – Forgery – False document- What is.

CRIMINAL LAW AND PROCEDURE – Forgery – When documentforged.

CRIMINAL LAW AND PROCEDURE – Intent to defraud – Whatconstitutes.

CRIMINAL LAW AND PROCEDURE – Jurisdiction of court -Jurisdiction of court in criminal matter – Determination of -What court considers.

CRIMINAL LAW AND PROCEDURE – Offences – Offence offorging or uttering negotiable instrument – What constitutes -Punishment therefor – Section 1(2)(b), Miscellaneous OffencesAct, 2004.

CRIMINAL LAW AND PROCEDURE – Offences – Offence offorging or uttering negotiable instrument – Substance of -Section 1(2)(b), Miscellaneous Offences Act, 2004.

CRIMINAL LAW AND PROCEDURE – Offences – Offence offorging or uttering negotiable instrument – Ingredients of -Section 1(2)(b), Miscellaneous Offences Act, 2004 – Forgery- Whether ingredient of offence.

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CRIMINAL LAW AND PROCEDURE – Restitution – Administrationof Criminal Justice Act, 2015 – Section 319(1)(a) thereof -Purport of – Provision of – Nature of.

CRIMINAL LAW AND PROCEDURE – Restitution – Power of courtto order defendant or convict to pay compensation to victimof offence – Section 319(1)(a), Administration of CriminalJustice Act, 2015.

CRIMINAL LAW AND PROCEDURE – Right to fair hearing -Right of accused person to be informed promptly in languagehe understands and in details the nature of offence – Section36(6)(a), 1999 Constitution.

DOCUMENT – Documentary evidence – Admissibility of -Certificate under section 84(4), Evidence Act 2011 – Whethermust be tendered by maker of document – Where maker ofdocument available but not called as witness – Whetherdocument admissible.

DOCUMENT – Documentary evidence – Admissibility of -Conditions therefor – Section 83(1), Evidence Act, 2011.

DOCUMENT – Forgery – False document – What is.

DOCUMENT – Forgery – When document forged.

DOCUMENT – Public document – Original of – Whether admissiblewithout certification.

EVIDENCE – Documentary evidence – Admissibility of – Certificateunder section 84(4), Evidence Act 2011 – Whether must betendered by maker of document – Where maker of documentavailable but not called as witness – Whether documentadmissible.

EVIDENCE – Documentary evidence – Admissibility of – Conditionstherefor – Section 83(1), Evidence Act, 2011.

EVIDENCE – Public document – Original of – Whether admissiblewithout certification.

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EVIDENCE – Relevancy – Piece of evidence – When relevant andmaterial.

FAIR HEARING – Right to fair hearing – Right of accused person tobe informed promptly in language he understands and in detailsthe nature of offence – Section 36(6)(a), 1999 Constitution.

FUNDAMENTAL RIGHTS – Right to fair hearing – Right of accusedperson to be informed promptly in language he understandsand in details the nature of offence – Section 36(6)(a), 1999Constitution.

INTERPRETATION OF STATUTES – Provision of statute – Purposeof – Intention of lawmaker – How to ascertain.

INTERPRETATION OF STATUTES – Construction of statute -Principle guiding.

INTERPRETATION OF STATUTES – Construction of statute -Purpose approach of court thereto – Aim of.

INTERPRETATION OF STATUTES – Construction of statute -Rule against construing statute to give it retrospective effect- Whether applicable to procedural statute.

JUDGMENT AND ORDER – Delivery of judgment – Delay indelivery of judgment – Whether occasioned miscarriage ofjustice – How determined.

JUDGMENT AND ORDER – Delivery of judgment – Time limittherefor – Section 294(1), 1999 Constitution – Non-compliancetherewith – Whether will invalidate or nullify judgment – Onuson appellant.

JURISDICTION – Jurisdiction of court – Jurisdiction of court incriminal matter – Determination of – What court considers.

JUSTICE – Miscarriage of justice – Meaning of – Allegation of -Burden of proof of.

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500

PRACTICE AND PROCEDURE – Delivery of judgment – Delayin delivery of judgment – Whether occasioned miscarriage ofjustice – How determined.

PRACTICE AND PROCEDURE – Delivery of judgment – Time limittherefor – Section 294(1), 1999 Constitution – Non-compliancetherewith – Whether will invalidate or nullify judgment – Onuson appellant.

PRACTICE AND PROCEDURE – Finding of fact – Where notappealed against – Subsistence of.

PRACTICE AND PROCEDURE – Issues before the court – Issuesuo motu – Where raised – When court need not invite partiesto address it thereon.

PRACTICE AND PROCEDURE – Miscarriage of justice – Meaningof – Allegation of – Burden of proof of.

PRACTICE AND PROCEDURE – Preliminary objection – Essenceand aim of.

PRACTICE AND PROCEDURE – Preliminary objection – Raisingof – Failure to raise on procedural matter – Effect of.

PRINCIPLES OF INTERPRETATION – Construction of statute -Principle guiding.

PRINCIPLES OF INTERPRETATION – Construction of statute -Purpose approach of court thereto – Aim of.

PRINCIPLES OF INTERPRETATION – Construction of statute -Rule against construing statute to give it retrospective effect- Whether applicable to procedural statute.

STATUTE – Administration of Criminal Justice Act, 2015 – Section319 thereof – Whether creates or prescribes penalty for anyoffence.

STATUTE – Administration of Criminal Justice Act, 2015 -Retrospective application of.

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STATUTE – Administration of Criminal Justice Act, 2015 – Section319(1)(a) thereof – Purport of – Provision of – Nature of.

STATUTE – Construction of statute – Principle guiding.

STATUTE – Construction of statute – Purpose approach of courtthereto – Aim of.

STATUTE – Construction of statute – Rule against construingstatute to give it retrospective effect – Whether applicable toprocedural statute.

STATUTE – Provision of statute – Purpose of – Intention of lawmaker- How to ascertain.

WORDS AND PHRASES – “Draft” – “Cheque” – Meanings of -Difference between.

WORDS AND PHRASES – Forgery – False document – What is.

WORDS AND PHRASES – Intent to defraud – What constitutes.

WORDS AND PHRASES – Miscarriage of justice – Meaning of.

Issues:

1.Whether counts 3 and 4 of the charge disclosed theingredients and the detailed nature of the offencecharged and were competent.

2.Whether exhibits “PW6C1”, “PW6C2”, “PW6A”,“PW7A” and “PW7B” were wrongly admitted toconvict the appellant.

3.Whether the respondent proved beyond reasonabledoubt the ingredients of the offences in counts 3 and 4of the charge.

4.Whether the trial court was right under section 3319of the Administration of Criminal Justice Act, 2015in ordering the appellant to pay compensation for theoffences allegedly committed in 2002.

5.Whether the judgment of the trial court deliveredcontrary to section 294(1) of the 1999 Constitutionoccasioned miscarriage of justice to the appellant.

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F acts:

At the Federal High Court, Yola, the appellant as the 2ndaccused and two others were arraigned for various offences, theappellant and the 3rd accused particularly for offence committed andpunishable under sections 1(2)(b) and 3(2) of the MiscellaneousOffences Act, Cap M17, Laws of the Federation of Nigeria, 2004.The 3rd accused, AI-Akim Investment Nigeria Limited, was acorporate entity of which the appellant is the alter ego.

The appellant at all material times was the Commissioner forLocal Government and Chieftaincy Affairs in the Adamawa StateExecutive Council under the then Governor of Adamawa State,Boni Haruna. In that capacity, he was the Chairman of the AdamawaState Local Government Joint Account Committee (LG-JAC).Among other functions, the LG-JAC approved Local Governmentprojects and voted funds for the execution of same.

The LG-JAC approved and appropriated the sum ofN31,500,000.00 to assist the Independent National ElectoralCommission (INEC) in its voters’ registration exercise. The LG-JAC also approved and appropriated the sum of N21,100,000.00for the purchase of vaccines for the Local Governments in the State.

The appellant before then had incorporated the 3rd accusedcompany and was also the sole signatory to the company’s accountheld at the Guaranty Trust Bank Plc. (GTB). One other entity, BBBProject, also operated an account at the bank in the name of the 1staccused. However, while the account had the 1st accused’s nameand photograph on the mandate card, Boni Haruna was the solesignatory to the account. The account was opened to accommodateelection campaign funds or donations.

The respondent’s case against the appellant, as stated incounts 3 and 4 of the charge, was that he deliberately caused unjustenrichment of third parties with intent to defraud the Governmentof Adamawa State. The substance of the allegations in the countswas that the appellant, with intent to defraud the Government ofAdamawa State, caused the payment of the sums of N31,500,000.00and N21,000,000.00 into the GTB account operated by BBBProject, a private entity, for purposes other than the purposes themonies were appropriated by the LG-JAC. The appellant wasalleged to have diverted the sums into the 3rd accused’s account,which they subsequently transferred into the BBB Project’s bankaccount and that neither the 3rd accused nor BBB Project did any

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job for Adamawa State Government to warrant their being paid thesums by the appellant.

At the trial, when the respondent sought to tender theappellant’s extra-judicial statement, he objected contending thatthe original copy of the statement made during investigation tothe EFCC was a public document which had to be certified beforeit could be tendered and admitted. The trial court overruled theobjection and admitted the statement as exhibit “PW6A”. Exhibits“PW6C1” and “PW6C2”, the statements of account of BBB Projectand the 3rd accused person, were tendered through PW6, one of thepolice officers that investigated the case.

Also, two cheques respectively for the sums of N31,500,000.00and N21,000,000.00 were tendered through an unsworn witness,PW7, the Branch Manager of Keystone Bank, Yola Branch whocame on subpoena. He testified that by the two cheques, his bankwas instructed to issue drafts in those sums in favour of the 3rdaccused. The two cheques were admitted without objection asexhibits “PW7A” and “PW7B”. The maker of the two cheques wasa Permanent Secretary who was dead at the time of the trial.

After close of trial and adoption of final written addresses, thetrial court adjourned judgment to 6th October 2015. It did not deliverthe judgment on that day and adjourned again to 17th November2015. On 17th November 2015, it allowed the parties to re-adopttheir final addresses and adjourned judgment to 30th November2015. It eventually delivered the judgment on 4th December 2015.

In the judgment, the trial court on counts 3 and 4 of the chargeconvicted and sentenced the appellant to ten years imprisonment oneach count. The terms of imprisonment were to run concurrently.The trial court further ordered the appellant, by way of restitution,to return/refund the total sum of N51,500,000.00 to the AdamawaState Local Government Joint Account Fund.

Dissatisfied, the appellant appealed to the Court of Appealagainst his conviction and sentence. The Court of Appeal in itsjudgment affirmed the judgment of the trial court and dismissed theappellant’s appeal.

Still dissatisfied, the appellant appealed to the Supreme Court.

In determining the appeal, the Supreme Court considered theprovisions of section 1(2)(b) of the Miscellaneous Offences Act,2004, section 319(1)(a) of the Administration of Criminal JusticeAct 2015 and section 83(1) of the Evidence Act 2011. Theyrespectively state thus:

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Section 1(2)(b) of the Miscellaneous Offences Act 2004:

“1(2) Any person who-

knowingly and by means of any falsemisrepresentation or with intent to defraud theFederal Government, the Government of anyState or any Local Government, causes thedelivery or payment to himself or any otherperson of any property or money by virtue ofany forged or false cheque, promissory note orother negotiable instrument whether in Nigeriaor elsewhere; shall be guilty of an offence andliable on conviction to imprisonment for a termnot exceeding twenty-one years without the(b)option of fine.”

Section 319(1)(a) of the Administration of Criminal Justice Act2015:

“319(1)A court may, within the proceedings or while passingjudgment, order the defendant or convict to pay a sumof money:

as compensation to any person injured by theoffence, irrespective of any other fine or otherpunishment that may be imposed or that isimposed on the defendant or convict, wheresubstantial compensation is in the opinion of(a)the court recoverable by civil suit.”

Section 83(1) of the Evidence Act 2011:

“83(1) In any proceedings where direct oral evidence of a factwould be admissible, any statement made by a personin a document and tending to establish that fact shall,on production of the original document, be admissibleas evidence of that fact if the following conditions aresatisfied –

(a)if the maker of the statement either –

had personal knowledge of the matters(i)dealt with by the statement, or

Where the document in question is orforms part of a record purporting to bea continuous record made the statement(in so far as the matters dealt with by itare not within his personal knowledge)(ii)in the performance of a duty to record

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information supplied to him by theperson who had, or might reasonably besupposed to have, personal knowledgeof those matters; and

If the maker of the statement is called as awitness in the proceeding; Provided that thecondition that the maker of the statement shallbe called as a witness need not be satisfied ifhe is dead, or unfit by reason of his bodily ormental condition to attend as a witness, or ifhe is outside Nigeria and it is not reasonablypracticable to secure his attendance, or if allreasonable efforts to find him have been made(b)without success.”

Held (Unanimously dismissing the appeal):

1.On What constitutes offence of forging or utteringnegotiable instrument –

By virtue of section 1(2)(b) of the MiscellaneousOffences Act, 2004, any person who knowingly andby means of any false misrepresentation or withintent to defraud the Federal Government, theGovernment of any State or any Local Government,causes the delivery or payment to himself or anyother person of any property or money by virtueof any forged or false cheque, promissory note orother negotiable instrument whether in Nigeria orelsewhere shall be guilty of an offence and liableon conviction to imprisonment for a term notexceeding twenty-one years without the option offine. (P. 530, paras. D-F)

2.On Option open to court where body corporateconvicted of offence punishable by term of imprisonmentwithout option of fine or to death under MiscellaneousOffences Act, 2004 –

By virtue of section 3(2) of the MiscellaneousOffences Act, 2004, where a body corporate isconvicted of an offence punishable by a term ofimprisonment without the option of a fine or to

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death under the Act, the Federal High Court mayorder that the body corporate shall thereupon andwithout any further assurance but for such order,be wound up and all its assets forfeited to theFederal Government. (P. 530, paras. F-G)

3.On What is substance offence of forging or utteringnegotiable instrument –

While the offences under section 1(2)(a) & of theMiscellaneous Offences Act, 2004 respectively havemens rea elements of “fraudulently or knowinglyutters, forges” and “makes or utters any forgeddocument, cheque, promissory note or othernegotiable instrument”, the offence under sectionl(2)(b) the Act, though not in the best phraseology,is worded in alternative. That is the delivery ofany property or payment of money by virtue ofany forged or false cheque. Therefore, unjustenrichment is the substance of the offence undersection 1(2)(b) of Miscellaneous Offences Act, 2004.In the instant case, counts 3 and 4 each allegedthe substance of the offence of unjust enrichment.The allegations harped on the words “with intentto defraud the Government of Adamawa State didcause” payment of monies belonging to AdamawaState Government to BBB Project. (P. 531, paras.A-D)

4.On Ingredients of offence of forging or utteringnegotiable instrument –

The ingredients constituting the offence ofunjust enrichment under section 1(2)(b) of theMiscellaneous Offences Act, 2004 which theprosecution must prove beyond reasonable doubtby virtue of section 135 of the Evidence Act, 2011are that the accused:

(a)with intent

(b)to defraud the Government

(c)falsely

(d)caused the payment/delivery

(e)to himself or some other person

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(f)property or money

(g)belonging to Government.

Forgery is not an active element or ingredientin the offence created by section 1(2)(b) of theMiscellaneous Offences Act, 2004. In the instantcase, the substance of the allegations in counts 3 and4 was that the appellant with intent to defraud theGovernment of Adamawa State caused the paymentof the sums of N31,500,000.00 and N21,000,000.00into a bank account operated by a private entity forpurposes other than the purposes the monies wereappropriated by the LG-JAC. The allegations wereaccommodated by section 1(2)(b) of the Act. (P. 537,paras. B-H)

Per EKO, J.S.C. at pages 537-538, paras. H-F; 539,paras. D-G:

“The appellant’s counsel submits that ‘theappellant was not charged with transferringthe total sum of N51.5M to AI-AkimInvestment Nig. Ltd as he was only chargedwith transferring the total sum of N51.5Minto BBB Project account’. The only battleground, as I can glean from the learnedcounsel’s argument, are the questions: whocaused the transfer of the money and whetherhe had the intent to defraud its owner? Thereis no dispute, between the appellant and therespondent that the total sum of money, thesubject of counts 3 & 4 belonged to and/oris owned by Adamawa State Governmentand that the BBB Project, as an entity, is notAdamawa State Government.

It is not in dispute that at the material timethe appellant as the Commissioner for LocalGovernment was the Chairman of LG-JAC.He admitted this fact when he testified as Dw.2at pages 165 -167 of the record. He was at thesame time the Chairman/Chief ExecutiveOfficer of AL-Akim investment Nig. Ltd as

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well as the sole signatory to the account of thesaid private company. The PW.5 testified onthis unchallenged. The lower court affirmedthe finding of fact by the trial court on thispoint.

The vouchers, exhibits PW.1A and PW.1Bwere raised for the purposes the sums ofN31,500,000.00 and N21,000.000.00 wereappropriated by the LG-JAC; that is,assistance to INEC and procurement ofvaccines for the 21 Local Governments. Theappellant was very much aware of these facts.The PW.7 testified that on the cheques exhibitsPW.7A and PW.7B his bank was instructedto raise drafts respectively for the sums ofN31,500,000.00 and N21,000,000.00 in favourof AL-Akim Investment Nig. Ltd. that washow the monies were traced to the accountof AL-Akim investment Nig. Ltd which theappellant was the sole signatory to….

The question: who authorised the payment ofthe sums of N31,500.000.00 and N21,000,000.00to the account of BBB Project or to BBB projectwas answered in the unchallenged evidence-in-chief of the PW.6 at page 118 of the record.The said sums of money were transferredfrom the account of AL- Akim InvestmentNig. Ltd to BBB Project respectively on 2 ndDecember, 2002 and 3 rd February, 2003. Sincethe appellant was the sole signatory to theaccount of AL-Akim Investment Nig. Ltd, thepresumption, having regard to common courseof private banking business in relation to thefacts of this case, is that it was the appellant,and only the appellant, who mandated the saidtransfers to BBB Project from the accountof AL-Akim Investment Nig. Ltd as the solesignatory on the mandate card: Section 167of the Evidence Act. The said sums, as PW.6

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testified, that left the account of the State andLocal Government Joint Account (where theappellant was the presiding chairman) passedthrough the account of AL-Akim InvestmentNig. Ltd (in respect of which the appellant wasthe sole signatory) and ended up subsequentlywith the BBB Project.”

5.On When document forged –

A document is said to be forged if the whole orpart of it is made by a person with all falsity andknowledge. In the instant case, the endorsementson the back of exhibits “PW7A” and “PW7B”instructing that draft be issued in favour of the 3 rdaccused constituted forgeries as the 3 rd accused wasnot the beneficiary of the vouchers which gave riseto the payments in “PW7A” and “PW7B”. [Oduav. F.R.N. (2002) 5 NWLR (Pt. 761) 615; Osondu v.F.R.N. (2000) 12 NWLR (Pt.682) 483 referred to.](P. 553, paras. D-F)

6.On What is false document –

Making any material addition to the body of agenuine document or writing and adding to agenuine document or writing any false attestation orendorsement amounts to making a false document.A document is said to be false if the whole orpart of it is made by a person with all falsity andknowledge. [Osondu v. F.R.N. (2000) 12 NWLR (Pt.682) 483 referred to.] (P. 554, para. H)

7.On What constitutes intent to defraud –

A person is said to have done a thing with intentto defraud another when he does the thing withintent to deceive and by means of such deceit toobtain some advantage for himself or another orto cause loss to any other person. In the instantcase, the appellant had authorised the payment ordiversion of the total sum of N52,500.000.00 fromthe account of LG-JAC to BBB Project through

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the account of Al-Akim Investment Nig. Ltd. topromote the political cause or interest of his bossGovernor Boni Haruna in his re-election bid. Thus,by unlawful means, he caused wrongful gain orunjust enrichment to the BBB Project and unjustloss or wrongful loss to Adamawa State LG-JAC.At the material time, neither Al-Akim investmentNig. Ltd. nor BBB Project had done any jobor project for Adamawa State Government towarrant the payment of a sum of N52,500.000.00 tothem. The PW6 testified the monies traced to BBBProject Account were all signed and withdrawnthrough cheques by the Governor. Therefore, theintent to permanently deprive the Adamawa StateGovernment of the sums the subject of counts 3 and4 was established. (Pp. 539-540, paras. H-C)

8.On Whether section 319 of Administration of CriminalJustice Act, 2015 creates or prescribes penalty foroffence –

Section 319 of the Administration of CriminalJustice Act, 2015 creates no offence nor prescribesany penalty for any offence. (P. 541, para. G)

9.On Power of court to order defendant or convict to paycompensation to victim of offence –

By virtue of section 319(1)(a) of the Administrationof Criminal Justice Act, 2015, a court may, withinthe proceedings or while passing judgment, orderthe defendant or convict to pay a sum of moneyas compensation to any person injured by theoffence, irrespective of any other fine or otherpunishment that may be imposed or that is imposedon the defendant or convict, where substantialcompensation is in the opinion of the courtrecoverable by civil suit. (Pp. 541-542, paras. H-A)

10.On Purport of section 319(1)(a) of Administration ofCriminal Justice Act, 2015 –

The provision of section 319(1)(a) of th eAdministration of Criminal Justice Act, 2015 is

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procedural. It permits the criminal court, in itsjudgment, to make order of restitution in favourof the victim of crime in order that justice be doneto all parties concerned, particularly the victimof crime. It merely empowers the court to makeconsequential order of restitution for purposesof equity and substantial justice. It is presumedthat the legislature does not intend what is unjust.[Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377referred to.] (P. 542, paras. C-D)

11.On Nature of provision of section 319(1)(a) of theAdministration of Criminal Justice Act, 2015 –

The restitutional provision of section 319(1)(a) ofthe Administration of Criminal Justice Act, 2015 isdiscretionary. The purpose of the powers vested inthe trial court to make the consequential order forrestitution or compensation is not only to ensurethat the trial court does justice to all concerned butalso to avoid multiplicity of actions in tandem withthe established public policy that there shall be anend to litigation. (P. 543, paras. B-C)

12.On Retrospective application of Administration ofCriminal Justice Act 2015 –

The retrospective application of the Administrationof Criminal Justice Act 2015 has to do with theprocedural operation and no violence would bedone to the language of the enactment. Section492(2) of the Act provides for the use of the Act incriminal procedure even in charges filed prior tothe commencement of the Act. In the instant case,it was erroneous for the appellant to contend thatthe Administration of Criminal Justice Act 2015could not be applied retrospectively because theoffence was committed in 2002. [Afolabi v. Gov., OyoState (1985) 2 NWLR (Pt. 9) 734; Goldmark (Nig.)Ltd. v. Ibafon Co. Ltd. (2012) 10 NWLR (Pt. 1308)291; O.H.M.B. v. Garba (2002) 14 NWLR (Pt. 788)538; Are v. A. G. Western Region (1960) SCNLR 22 4referred to.] (P. 555, paras. C-E)

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13.On Whether rule against construing statute to give itretrospective effect applicable to procedural statute –

The rule that a statute must not ordinarily beconstrued to give it a retrospective effect so as toimpair or take away vested right has no applicationto statute that is purely procedural. No personhas a vested right in any course of procedure.Statutes which make alterations in procedure areretrospective. [Ojokolobo v. Alamu (1987) 3 NWLR(Pt. 61) 377 referred to.] (P. 542, paras. B-C)

14.On Purpose approach of court to construction ofstatute and aim of –

Courts now adopt the “purpose” approachwhich seeks-to give effect to the true purpose of alegislation. In so doing, they ascertain the intentionof the parliament from the language used in thestatute. [Rabiu v. Kano State (1980) 8-11 SC 130; A.-G., Lagos State v. A.-G, Fed. (2003) 12 NWLR (Pt.833) 1; Buhari v. Yusufu (2003) 14 NWLR (Pt. 841)446 referred to.] (P. 531, para. E)

15.On How to ascertain purpose of provision of statute –

To ascertain the true purpose of a statutory provisionor the intension of the lawmaker for enacting theprovision, resort is usually had to the ordinary andnatural meaning of the words of the statute. By thisapproach, courts avoid the narrow construction ofthe statutory provision that ultimately defeats theintention of the lawmaker and the purpose of thatstatutory provision. [Okumagba v. Egbe (1965) AllNLR 62; Ifezue v. Mbadugha (1984) 1 SCNLR 427referred to.] (P. 531, paras. F-G)

16.On Principle guiding construction of statute –

A cardinal principle that guides interpretation orconstruction of a statute is that its provisions arenot to be construed or interpreted by placing a glosson them by importing thereto words or matters

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extraneous to the provisions. The words of a statuteare to be given their ordinary meaning and a court,when interpreting a statutory provision, must givethe words and language used in the provision theirsimple ordinary meaning, without venturing outsidethe provision to introduce extraneous matters thatmay lead to circumventing or giving the provisionan entirely different interpretation from what thelawmaker intended it to be. In other words, it isnot permitted, in interpreting a statutory provision,for the court to either add words thereto, or takewords there from. This is because courts do notmake laws. They merely interpret and declare thelaw as made by the legislature. In its interpretativeduty, a court of law merely brings out only the clearintention of the lawmaker. [Unipetrol v. E.S.B.I.R.(2006) 8 NWLR (Pt. 983) 624; Obusez v. Obusez(2007) 10 NWLR (Pt. 1043) 430 referred to.] (Pp.531-532, paras. G-C)

17.On Essence and aim of preliminary objection –

The essence and aim of a preliminary objection isto terminate the proceedings in limine and at itsinfancy without the court dissipating unnecessaryenergies in considering an unworthy or fruitlessmatter in the proceedings. It saves time by itstimely foreclosure of the proceedings. [Yaro v. ArewaConstruction Ltd. (2007) 17 NWLR (Pt. 1063) 333;Sani v. Okene Local Govt. Traditional Council (2008)12 NWLR (Pt. 1102) 691; Efet v. INEC (2011) 17NWLR (Pt. 1247) 423 referred to.] (Pp. 532-433,paras. H-A)

18.On Effect of failure to raise preliminary objection onprocedural matter –

A failure to raise a preliminary objection on amatter of procedure could raise against the objectorthe issues of waiver and estoppel by conduct,unless the issue in the preliminary objection is

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jurisdictional or it is fundamental and it goes tothe roots. Since preliminary objection is aimed atscuttling the hearing of a matter or an aspect of it, ithas to be determined as a threshold matter. Raisingit belatedly may give impression of acquiescence,waiver and estoppel. [Sani v. Okene Local Govt.Traditional Council (2008) 12 NWLR (Pt. 1102) 691;Obasi v. Mikson Estab. Ind. Ltd. (2016) 16 NWLR(Pt. 1539) 335 referred to.] (P. 533, paras. B-C)

19.On What charge must contain –

By virtue of section 152 of the Criminal ProcedureAct, a charge shall contain such particulars as tothe time and place of the offence and the person, ifany, against whom or the thing, if any, in respect ofwhich it was committed as are reasonably sufficientto give the accused notice of the matter with whichhe is charged. In the instant case, the amendedcharge stated the time and place of the allegedoffence, the name of the appellant and particularsof the offence reasonably sufficient to give theappellant notice of the offence with which he wascharged and met the provisions of section 152(1) ofthe Criminal Procedure Act and section 195 of theAdministration of Criminal Justice Act 2015. Theappellant could not have been in doubt as to thenature of the charge against him. Apart from beinga very enlightened person, he was represented by alegal practitioner. [Adeniji v. State (2001) 12 NWLR(Pt. 730) 375; Olowu v. Nigerian Navy (2011) 18NWLR (Pt. 1279) 659; Ifeanyi v. F.R.N. (2018) 12NWLR (Pt. 1632) 164 referred to.] (P. 548, paras.B-F)

20.On When to raise objection to defect on charge –

By section 167 of the Criminal Procedure Act, anobjection to a charge for any formal defect on theface thereof shall be taken immediately after thecharge has been read over to the accused person and

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not after. This is procedural. Failure of the defenceto timeously object to any formal defect on the faceof the charge after the charge had been read over tothe accused person amounts to waiver of the rightto object to the alleged formal defect on the face ofthe charge. The accused person cannot be heard tosay the formal defect on the face of the charge haddenied him the right to fair hearing guaranteed bysection 36(1) and of the 1999 Constitution. Inthe instant case, if there was an error or omissionin the drafting of the charge, the appellant left theobjection too late. [Timothy v. F.R.N. (2013) 4 NWLR(Pt. 1344) 213; Agbo v. State (2004) 7 NWLR (Pt.873) 546; Bamaiyi v. State (2006) 12 NWLR (Pt. 994)22 referred to.] (P. 533, paras. D-F)

21.On Presumption raised by failure of accused personrepresented by counsel to object to defect on charge –

When a party who is represented by counsel atthe time he takes his plea to the charge read andexplained to him, fails to complain about anydefect on the face of the charge, the presumptionis that the party is not misled by the charge readand explained to him to which he gave his plea.The mere fact of the presence of the defencecounsel raises the strong presumption that therewas no miscarriage of justice to the defendant. Inthe instant case, the appellant’s plea to counts 3and 4, taken in the presence of his counsel on 19 thMay 2015, was done after the counts were readand explained to him. The appellant indicated tothe court, in the presence of his counsel, that heunderstood the allegations made against him in thecounts, which were laid out to bring them in linewith the evidence already given. It was only afterhis conviction by the trial court and in his notice ofappeal, particularly in grounds 1 – 5 thereof, at thetrial court that he raised objections to the counts ongrounds of non-disclosure therein of the element of

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forgery. [Nwachukwu v. State (2007) 17 NWLR (Pt.1062) 31 referred to.] (Pp. 533-534, paras. F-B)

22.On What court considers in determination ofjurisdiction of court in criminal matter –

In the determination of the jurisdiction of a courtin a criminal matter, the first port of call in thequest to explore the status thereof is the chargesheet before the court, which contains the offenceor offences alleged to have been committed by theaccused person. The contents of a charge shouldnot be the subject of speculation or inference ratherthe essential ingredients of the offence must be sodisclosed in the charge. This is in keeping withthe inalienable right of the accused person undersection 36(6)(a) of the 1999 Constitution. [Amiwero v.A.-G., Fed. (2015) 15 NWLR (Pt. 1482) 353; Timothyv. F.R.N. (2013) 4 NWLR (Pt. 1344) 213 referred to.](P. 547, paras. D-E)

23.On Right of accused person to be informed promptly inlanguage he understands and in details the nature ofoffence –

By virtue of section 36(6)(a) of the 1999 Constitution(as amended), every person who is charged with acriminal offence shall be entitled to be informedpromptly in the language that he understands andin details of the nature of offence. In the instantcase, the requirement as to details or the essentialingredients of the offence including the time andplace, when and where the offence was allegedlycommitted were fully on display in the charge. (P.549, paras. D-F)

24.On Whether original of public document admissiblewithout certification –

Where the original of a public document isavailable, it is admissible without the requirementof its certification. A certified true copy is admissible

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in the absence of the original copy of a publicdocument with the exception of those in section106 of the Evidence Act 2011. Section 102 of theEvidence Act has not precluded the admissibilityof a public document when tendered in its originalform as it is primary evidence. In the instant case,the appellant’s contended that exhibit “PW6A”, anoriginal of a public document, was not admissible inevidence and that only a duly certified copy of thesame public document was admissible in evidence.The reasoning or argument was puerile, illogical andunreasonable. It is not admissible in any analyticaljurisprudence. [Kassim v. State (2018) 4 NWLR (Pt.1608) 20; Minister of Lands, W/N v. Azikiwe (1969)All NLR 49; Abdullahi v. F.R.N. (2018) 2 NWLR (Pt.1604) 479; Onobruchere v. Esegine (1986) 1 NWLR(Pt.19) 799 referred to.] (P. 534, paras. B-E)

25.On When piece of evidence relevant and material –

A piece of evidence offered in proof of the fact inissue is relevant and material. Relevancy is generallythe best test or consideration for the admissibilityof a piece of evidence under the Evidence Act 2011.In the instant case, the Court of Appeal foundcorrectly that exhibits “PW6C1”and “PW6C2”tendered through PW6 were relevant to the facts inissue in the trial of the appellant on the 3 rd and 4 thcounts alleged against him. (P. 534, paras. F-G)

26.On Conditions for admissibility of documentaryevidence –

By virtue of section 83(1) of the Evidence Act, 2011,in any proceedings where direct oral evidence of afact would be admissible, any statement made by aperson in a document and tending to establish thatfact shall, on production of the original document,be admissible as evidence of that fact if the followingconditions are satisfied:

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if the maker of the statement either hadpersonal knowledge of the matters dealtwith by the statement, or where thedocument in question is or forms part ofa record purporting to be a continuousrecord, made the statement, in so far as thematters dealt with by it are not within hispersonal knowledge, in the performance of aduty to record information supplied to himby the person who had, or might reasonablybe supposed to have personal knowledge ofthose matters; and

if the maker of the statement is called as awitness in the proceeding provided that thecondition that the maker of the statementshall be called as a witness need not besatisfied if he is dead, or unfit by reason ofhis bodily or mental condition to attend asa witness, or if he is outside Nigeria and itis not reasonably practicable to secure hisattendance, or if all reasonable efforts tofind him have been made without success.

In the instant case, the appellant conceded that thePermanent Secretary who allegedly made exhibits“PW7A” and “PW7B” was dead. Therefore, itwas not feasible to call him to testify and be cross-examined on the exhibits. The contention of theappellant’s counsel that the appellant was deniedfair hearing merely by the fact that the prosecutiondid not make available the deceased PermanentSecretary as a witness was most preposterous andunreasonable. (P. 536, paras. B-H)

27.On Whether certificate under section 84(4) of EvidenceAct must be tendered by maker of document –

It is not mandatory that the certificate under section84(4) of the Evidence Act, 2011 must be tendered bythe maker of a document as a document can be in

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evidence even if the maker is available but not calledas a witness. The reason for this is that it is withinthe discretionary power of the court to either admitor refuse to admit a document where the maker ofthe document has not been called. In the exercise ofsuch a discretion, the only requirement is whetherthe document is relevant to the fact in issue andif the answer is positive, it should be admitted.[Obembe v. Ekele (2001) 10 NWLR (Pt. 772) 677;Ikumonihan v. State (2014) 2 NWLR (Pt. 1392) 564;Ikpeazu v. Otti (2016) 8 NWLR (Pt.1513) 38 referredto.] (P. 551, paras. B-D)

28.On When court need not invite parties to address it onissue raised suo motu –

Where an issue is within the contemplation ofparties, the court does not need to invite the partiesto address it on the issue. Where the court suo moturaises the issue, the fundamental right of a partyis not breached. In the instant case, the appellantcontended that the trial court suo motu raisedthe issue that the respondent was not requiredto prove forgery as it was not contained in theamended charge. The issue of forgery was withinthe contemplation of both parties and there was nopoint inviting the parties to address it on the issueas the matter was embedded in the charge. Theappellant’s fundamental right to fair hearing wasnot breached. [Abidoye v. F.R.N. (2014) 5 NWLR(Pt.1399) 30: Maideribe v. F.R.N. (2014) 5 NWLR(Pt. 1399) 68 referred to.] (P. 550, paras. C-D)

29.On Subsistence of finding of fact not appealed against –

Where adverse findings of fact are not subject ofany complaint in the issues formulated for thedetermination of an appeal, the findings remaininviolate and subsist between the parties. (P. 539,para. C)

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30.On Time limit for delivery of judgment –

The provisions of section 294(1) of the 1999Constitution (as amended) makes it mandatoryfor a court to deliver its judgment within ninetydays after final address. But section 294(5) of theConstitution has provided that a judgment willnot be invalidated or nullified for non-compliancewith the ninety days unless and until the appellatecourt considering the complaint on appeal isfully satisfied that appellant has established thatit suffered a miscarriage of justice of such latedelivery of judgment. The provision does not havea retrospective effect. The legislature in makingthe amendment must have been motivated bythe desire to lessen the rigours on litigants oftenbrought about by the application of section 294(1)of the Constitution. It is for this reason and it isincumbent on the appellant complaining thatthe trial court delivered its judgment outside thethree months prescribed by the Constitution forthe decision to be delivered after final addressesand that the decision is therefore a nullity to showthe miscarriage of justice he suffered by the factof the alleged delay. Section 294(5) of the 1999Constitution is not intended for the appellant, asin the instant case, to call upon the appeal courtto re-evaluate or further evaluate the evidence thetrial court relied upon to convict him. [Ojokolobov. Alamu (1987) 3 NWLR (Pt. 61) 377 referred to.](Pp. 542, paras. E-F; 542-543, paras. H-F)

Per EKO, J.S.C at pages 543-544, paras. F-B:

“On 17 th November, 2015, after it failed todeliver its judgment reserved to 6 th October,2015 after the final addresses on 6 th July, 2015,the trial court allowed the parties to re-adopttheir final addresses, and ruled that the saidfinal addresses had been duly re-adopted.Thereafter it again reserved the judgmentto 30 th November, 2015, which judgment it

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delivered not on that date but on 4 th December,2015 within 3 months or 90 days from 17 thNovember 2015. The appellant did notchallenge the decision of the trial court, on 17 thNovember, 2015, that the final addresses be andwere re-adopted. It is an appealable decisionwithin section 318 of the Constitution. He is,in the first place and circumstance, deemed toaccept that subsisting decision.

The appellant has not shown that the delayin delivering the judgment did occasion tohim a miscarriage of justice. I agree with therespondent that ‘the delay in delivering thejudgment did not affect the (trial) court’sperception, appreciation and evaluation ofthe case before it’, and that ‘the Court ofAppeal was right in holding that there wasno miscarriage of justice occasioned by thedelay.’”

31.On Meaning of miscarriage of justice –

Miscarriage of justice is declared when a court, afterexamining the entire case, including the evidence,is of the opinion that it is reasonably probablethat a result more favourable to the appealingparty, would have been reached in the absence oferror. Miscarriage of justice means a reasonableprobability of more favourable outcome of thecase for the party alleging it. It is injustice doneto the party alleging it. The burden of proof is onthe party alleging that justice has been miscarried.[Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282referred to.] (P. 557, paras. C-E)

32.On Determination of whether miscarriage of justiceoccasioned by delay in delivery of judgment –

In deciding a miscarriage of justice as a result of thedelay between conclusion of trial and the deliveryof a judgment, the emphasis is not on length of time

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simpliciter but on the effect that it produced in themind of the court, such as if the delay is found tohave obviously obscured the court’s perception,appreciation and evaluation of the case. Thus, if theevaluation of evidence bears the mark of freshnessand the findings of fact are supported by credibleevidence, then the court’s judgment will not beset aside. In the instant case, the appellant did notshow that the delay in delivering the judgment ofthe trial court occasioned a miscarriage of justice.The delay in delivering the judgment did notaffect the trial court’s perception, appreciationand evaluation of the case before it and thus theCourt of Appeal was right to hold that there wasno miscarriage of justice occasioned by the delay.[Akoma v. Osenwokun (2014) 11 NWLR (Pt. 1419)462; Agbogodi v. Okoh (2015) ALL FWLR (Pt. 789)1107; Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61)377 referred to.] (Pp. 555-556, paras. F-A; 557-558,paras. F-A)

33.On Meanings of “draft” and “cheque” and differencebetween –

The word ‘draft’ has been defined in law to includea bill of exchange as well as a cheque. In generalterms, it embraces every request by a drawer upona drawee to pay money. This definition in effectmeans that the word ‘draft’ is interchangeableone with the other. A cheque is a draft other thana document draft, signed by the drawer, payableon demand, drawn on a bank and unconditionallynegotiable. The term includes a cashier’s cheque orteller’s cheque. The instrument may be a chequeeven though it is described on its face by anotherterm, such as ‘money order’. A cheque is anunconditional order in writing addressed to a bankor banker, signed by the person giving it, requiringthe bank or banker to pay on demand a sum certainin money to a designated person or to the bearer. In

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other words, a cheque is an instrument in the formof a bill of exchange, drawn on a bank or bankerand payable on demand. There is no fundamentaldifference between a draft and a cheque. [FirstAfrican Trust Bank Lt.d v. Partnership Inv. Co. Ltd.(2003) 18 NWLR (Pt. 851) 35 referred to.] (Pp. 548-549, paras. G-C)

Nigerian Cases Referred to in the Judgment:

A.-G., Lagos State v. A.-G., Fed. (2003) 12 NWLR (Pt. 833) 1

A.C.B. v. Yusuf (1996) 1 All NLR 328

Abdullahi v. F.R.N. (2018) 2 NWLR (Pt.1604) 479

Abidoye v. F.R.N. (2014) 5 NWLR (Pt. 1399) 30

Adeniji v. State (2001) 12 NWLR (Pt.730) 375

Adeyemi v. State (2011) 5 NWLR (Pt.1239) 1

Afolabi v. Gov., Oyo State (1985) 2 NWLR (Pt. 9) 734

Agbo v. State (2004) 7 NWLR (Pt. 873) 546

Agbogidi v. Okoh (2015) All FWLR (Pt. 789) 1107

Aiyetoro Community Trading Co. Ltd. v. N.A.C.B. Ltd. (2003)12 NWLR (Pt.834) 346

Akoma v. Osenwokun (2014) 11 NWLR (Pt.1419) 462

Amadi v. State (1993) 8 NWLR (Pt.314) 644

Amiwero v. A.-G., Fed. (2015) 15 NWLR (Pt. 1482) 353

Are v. A.-G., Western Region (1962) 1 SCNLR 224

Audu v. State (2003) 7 NWLR (Pt.820) 516

Bamaiyi v. State (2006) 12 NWLR (Pt. 994) 22

Buhari v. Yusufu (2003) 14 NWLR (Pt. 841) 446

Dickson v. Sylva (2017) 10 NWLR (Pt.1573) 299

Egwaba v. F.R.N. (2004) All FWLR (Pt.232) 1512

Eyiboh v. Abia (2012) 16 NWLR (Pt.1325) 51

First African Trust Bank Ltd. v. Partnership InvestmentCompany Ltd. (2003) 18 NWLR (Pt. 851) 35

Gold Mark (Nig.) Ltd. v. Ibafon Co. Ltd. (2012) 10 NWLR (Pt.1308) 291

Gwonto v. State (1983) 1 SCNLR 142

Ifeanyi v. F.R.N. (2018) 12 NWLR (Pt.1632) 164

Ifezue v. Mbadugba (1984) 1 SCNLR 427

Ikpeazu v. Otti (2016) 8 NWLR (Pt.1513) 38

Ikumonihan v. State (2014) 2 NWLR (Pt.1392) 564

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Kassim v. State (2018) 4 NWLR (Pt. 1608) 20

Kubor v. Dickson (2013) 4 NWLR (Pt.1345) 534

Maideribe v. F.R.N. (2014) 5 NWLR (Pt.1399) 68

Michael Ankpegher v. State (2018) 11 NWLR (Pt.1630) 249

Minister of Lands, WN v. Azikiwe (1969) ALL NLR 49, (1969)6 NSCC 31

Nwachukwu v. State (2007) 17 NWLR (Pt. 1062) 31

Nwaogu v. Atuma (2013) 11 NWLR (Pt. 1364) 117

O.H.M.B. v. Garba (2002) 14 NWLR (Pt. 788) 538

Obasi v. Mikson Est. Ind. Ltd. (2016) 16 NWLR (Pt. 1539)335

Obembe v. Ekele (2001) 10 NWLR (Pt.772) 677

Obusez v. Obusez (2007) 10 NWLR (Pt. 1043) 430

Odi v. Osafile (1987) 2 NWLR (Pt. 57) 510

Odua v. F.R.N. (2002) 5 NWLR (Pt.761) 615

Ojo v. F.R.N. (2008) 11 NWLR (Pt.1099) 467

Ojokolobo v. Alamu (1987) 3 NWLR (Pt. 61) 377

Okumagba v. Egbe (1965) 1 ALL NLR 62

Olowu v. Nigerian Navy (20011) 18 NWLR (Pt.1279)) 659

Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 152

Onobruchere v. Esegine (1986) 1 NWLR (Pt.19) 799

Osondu v. F.R.N. (2000) 12 NWLR (Pt.682) 483

Rabiu v. Kano State (1980) 8 – 11 SC 130

Sani v. O.L.G.T.G. (2008) 12 NWLR (Pt. 1102) 691

Sodipo v. Lemminkainen OY (1985) 2 NWLR (Pt. 8) 547

Timothy v. F.R.N. (2013) 4 NWLR (Pt.1344) 213

Unipetrol (Nig.) Plc v. E.S.B.I.R (2006) 8 NWLR (Pt. 983)624

Walter v. Skyll (Nig.) Ltd. (2001) 3 NWLR (Pt.701) 438

Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt. 1063)333

Foreign Case Referred to in the Judgment:

King v. Dharma (1905) 2 KB 335

Nigerian Statutes Referred to in the Judgment:

Administration of Criminal Justices Act, 2015, S. 319(1)(a)

Constitution of the Federal Republic of Nigeria, 1979, S.258(1)

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Constitution of the Federal Republic of Nigeria, 1999, Ss.36(1)(6)(8)(12), 258(4), 294(1)(5)

Evidence Act, 2011, Ss. 83(1), 84, 106, 135, 167(c)

Miscellaneous Offences Act, Cap. M7, Laws of the Federationof Nigeria, 2004, Ss. 1(2)(a)(c); 1(2)(b); 3(2)

Book Referred to in the Judgment:

Sotari F. Tamunowari: Annotation of the Nigerian EvidenceAct, 2nd Ed. p. 267

Appeal:

This was an appeal against the decision of the Court of Appealdismissing the appeal against the judgment of the Federal HighCourt which convicted and sentenced the appellant to terms ofimprisonment and ordered restitution. The Supreme Court, in aunanimous decision, dismissed the appeal.

.

History of the Case:

Supreme Court:

Names of Justices that sat on the appeal: Mary UkaegoPeter-Odili, J.S.C. (Presided); Olukayode Ariwoola,J.S.C.; John Inyang Okoro, J.S.C.; Amina Adamu Augie,J.S.C.; Ejembi Eko, J.S.C. (Read the Leading Judgment)

Appeal No.: SC.576/2016

Date of Judgment: Friday, 8th May 2020

Names of Counsel: Andrew M. Malgwi, Esq. (with him,U.K. Obioha, Esq., Rilwan Idris, Esq. and Festus Ibude,Esq.) – for the Appellant

Samuel Okeleke, Esq. – for the Respondent

Court of Appeal:

Division of the Court of Appeal from which the appealwas brought: Court of Appeal, Yola

Names of Justices that sat on the appeal: JummaiHannatu Sankey, J.C.A. (Presided and Read the LeadingJudgment); Saidu Tanko Hussaini, J.C.A.; BiobeleAbraham Georgewill, J.C.A.

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Appeal No.: CA/YL/41C/2015

Date of Judgment: Wednesday, 29th June 2016

Names of Counsel: Ricky Tarfa, SAN (with him, J. O.Odubela, Esq.; Andrew Malgwi, Esq.; Rabi Buba [Miss],Esq.; T. U. Danjuma, Esq. and A. A. Hamma, Esq.) – forthe Appellant

Samuel Okeke, Esq. (with him, Chris Mshelia, Esq.) – forthe 1 st Respondent.

U. D. Silas, Esq. – for the 2 nd Respondent

High Court:

Name of the High Court: Federal High Court, YolaAdamawa State

Name of the Judge: Aliyu, J.

Suit No.: FHC/YL/10C/2013

Date of Judgment: Friday, 4th December 2015

Names of Counsel: O. I. Uket, Esq. (with him, Okeleke,Esq. and Chris Mshelia, Esq.) – for the Prosecution

Andrew Malgwi, Esq. (with him, E. Elijah, Esq.; T. U.Danjuma, Esq. and M. M. Bakare [Miss], Esq.) – for the1 st and 3 rd Accused persons

Counsel:

Andrew M. Malgwi, Esq. (with him, U.K. Obioha, Esq.,Rilwan Idris, Esq. and Festus Ibude, Esq.) – for the Appellant

Samuel Okeleke, Esq. – for the Respondent

EKO, J.S.C. (Delivering the Leading Judgment): On 4thDecember, 2015 the Federal High Court sitting at Yola, AdamawaState (Coram: B. B. Aliyu, J) convicted the appellant, as the 2ndaccused, and the 3rd accused on counts 3 and 4 of the amendedcharge. The 3rd accused, AI-Akim Investment Nigeria Limited, wasa corporate entity of which the 2nd accused, the appellant herein wasthe alter ego.

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The appellant at all material times was the Commissioner forLocal Government and Chieftaincy Affairs in the Adamawa StateExecutive Council. In that capacity, he was the Chairman of theAdamawa State Local Government Joint Account Committee (LG-JAC). Among other functions the LG – JAC approved Joint LocalGovernment Projects and voted funds for the execution of the same.The LG-JAC had approved and appropriated N31.5M to assist theIndependent National Electoral Commission (INEC) in its votersregistration exercise. The LG-JAC also approved and appropriatedN21.0M for purchase of vaccines for the Local Governments.

The appellant had incorporated Al-Akim Investment Nigeria

Limited. He was the sole signatory to the account of the said Al-Akim Investment Nigeria Limited held at Guaranty Trust Bank Plc.(GTB). The LG-JAC maintained their account at Habib NigeriaBank Ltd. One other entity BBB Project also operated an account atthe GTB in the name of Mohammed Inuwa Bassi (the 1st accused).The said account, while it had the name and photograph of the saidMohammed Bassi on the mandate card, had as the sole signatorythereto on the mandate card Boni Haruna. In other words. It wasthe case of the hand of Esau, but the voice of Jacob. The BBBProject Bank account, seemingly a fraudulent artifice, was createdto accommodate election campaign funds or donations. The saidBoni Haruna was at the material time, the Governor of AdamawaState under whom the appellant was the Commission for LocalGovernment and Chieftaincy Affairs.

The prosecution had alleged that the Company, Al-AkimInvestment Nigeria Limited did no job for Adamawa StateGovernment or the LG-JAC to warrant the appellant diverting thesum of N31,500,000.00 approved by the LG-JAC, in which he wasthe Chairman, to assist the INEC in the voters registration exercisein Adamawa State, and the sum of N21,100,000.00 approved by LG-JAC for the purchase of vaccines for the Local Governments in theState into the account of Al-Akim Investments Nigeria Limited atGTB. Upon payment vouchers raised for payments of the said sumsfor their respective purposes Habib Nigeria Bank drafts were raised.The appellant was alleged to have authorised the endorsement at theback of each cheque instructing the Manager, Habib Nigeria Bank,Yola Branch as the payee to issue drafts, respectively exhibits PW.7A and PW.7B, in the sums of N31,500,000.00 and N21,000,000.00in favour of Al-Akim Investments Nigeria Limited. It was also

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alleged that the said sums of N31,500,000.00 and N21,100,000.00were subsequently transferred into the account of BBB Projects bythe appellant and Al-Akim Investments Nigeria Limited (the 3rdaccused). It is on these facts that the prosecution raised counts 3and 4.In the amended charge against the appellant and Al-AkimInvestments Nigeria Limited; they were tried and convicted on thetwo counts to wit-

Count 3

That you, John Babani Elias and Al-Akim InvestmentNigeria Limited, on or about the 26th of November,2002 at Yola, within the jurisdiction of this HonourableCourt, with intent to defraud the Government ofAdamawa State did cause the payment of the sum ofN31,500,000.00 vide a Habib Nigeria Bank Limiteddraft No. 0873368 dated 26/11/2002 into GuarantyTrust Bank Plc Account No. 3613406139110 operatedby BBB Project in the name of Mohammed InuwaBassi, monies meant for Adamawa State LocalGovernments Joint Development Project and therebycommitted an offence punishable under sections 1(2)and 3[2] of the Miscellaneous Offences Act, Cap.(b)M7, Laws of the Federation of Nigeria, 2004.

Count 4

That you, John Babani Elias and Al-Akim InvestmentsNigeria Limited, on or about the 23rd of January, 2003at Yola, within the jurisdiction of this HonourableCourt, with intent to defraud the Government ofAdamawa State, did cause the payment of the sumof N21,000,000.00 vide Habib Nigeria Bank Limiteddraft No. 0875930 dated 28/1/2003 into Guaranty TrustBank Plc. account No. 36134061339110 operated byBBB Project in the name of Mohammed Inuwa Bassi,monies meant for Adamawa State Local GovernmentJoint Development Project and thereby committed anoffence punishable under sections 1(2)(b) and 3(2) ofthe Miscellaneous Offences Act, Cap M17, Laws ofthe Federation of Nigeria, 2004.

The case against the appellant was one of deliberatelycausing unjust enrichment of third parties with intent to defraud

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the Government of Adamawa State. The evidence on the printedrecord is that neither Al-Akim Investments Nigeria Limited norBBB Project did any job for Adamawa State Government towarrant their being paid the said sums by the appellant. The sumof N31,500,000.00, according to the PW.l, was intended to assistINEC in ongoing voters registration. That was the purpose, forwhich, the LG-JAC approved the disbursement of the said sum.

The sum of N21,100,000.00 was approved by the LG – JAC for thepurpose of procurement of vaccines for the 21 Local Governmentsin the State.

The appellant was, on counts 3 and 4, convicted and sentencedto 10 years imprisonment on each count. The terms of prison sentencewere to run concurrently. The appellant was further ordered, byway of restitution, to “return/refund the sum of N51.5 Million tothe Adamawa State Local Government Joint Account Fund, fromwhere it was stolen and diverted by him and his Company”. Hisappeal against both the conviction and sentence was, on 29th June,2016, dismissed; hence this further appeal. The Notice of Appeal,filed on 14th July, 2016, was on 15th February, 2018 regularised anddeemed filed and served the same day. It has ridiculously a total of31 grounds of appeal. In the further amended appellant’s brief ofargument filed on 18th November, 2019, but deemed filed and servedon 5th February, 2020, the appellant’s counsel, Andrew M. Malgwi,Esq., who does not seem to imbibe the sagacity that brevity is theart of wisdom, formulated five issues for the determination ofthe appeal. The said 5 issues are:

whether counts 3 and 4 which did not disclose allthe necessary, essential, required and fundamentalingredients as well as detailed nature of the offencescharged are, by doctrine of judicial precedent, notincurably incompetent and if same is such a mereirregularity that can be defeated by mere plea of theappellant (Grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 &i.13).

ii. whether exhibits PW.C1, PW.C2, PW.6A, PW.7Aand PW.7B were not wrongly admitted to convict theappellant? (Grounds 14, 15, 16, 17, 18 & 19).

iii. whether the respondent proved, by cogent, compelling,positive and admissible circumstantial evidence, each

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of the necessary/essential ingredients of the offencesin counts 3 and 4 beyond reasonable grounds (Grounds20, 21, 22, 23, 24, 27, 28 and 29).

iv. whether the sentence of the appellant for the allegedoffences committed in 2002 is justifiable under section319 of the Administration of Criminal Justice Act}2015 (Ground 30).

v. whether the judgment of the trial court, delivered morethan 90 days, did not occasion a miscarriage and oughtnot to be set aside? (Grounds 25 and 26).

For proper appreciation of issue 1 a reproduction of sections1(2)(b) and 3(2) of the Miscellaneous Offences Act, 2004 (MOA,2004) under which counts 3 and 4 were brought is necessary. Thesaid provisions are herein below reproduced, to wit –

1(2) Any person who-

knowingly and by means of any falsemisrepresentation or with intent to defraud theFederal Government, the Government of any Stateor any Local Government, causes the delivery orpayment to himself or any other person of anyproperty or money by virtue of any forged orfalse cheque, promissory note or other negotiableinstrument whether in Nigeria or elsewhere; shallbe guilty of an offence and liable on conviction toimprisonment for a term not exceeding twenty-(b)one years without the option of fine.

3(2) Where a body Corporate is convicted of an offencepunishable by a term of imprisonment without theoption of a fine or to death under this Act, the FederalHigh Court may order that the body Corporate shallthereupon and without any further assurance but forsuch order, be wound up and all its assets forfeited tothe Federal Government. (Italic supplied)

For this discourse, the provisions of section 3(2) of MOA,2004 are not relevant.

The appellant’s counsel, on issue 1, contends that counts 3 and4, as above reproduced viz-a-viz section 1(2)(b) of the MOA, 2004failed to disclose the ingredients of the offence created by section1(2)(b) of MOA, 2004; and that the said counts 3 and 4 are incurably

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bad. Reliance was placed on Abidoye v. F.R.N. (2014) 5 NWLR (Pt.1399) 30 (SC). The learned counsel submits that a vital element ofthe offence under section 1(2)(b) of MOA, 2004, that is: forgery,was omitted therefrom. While the offences under section 1(2)(a) &MOA respectively have mens rea elements of “fraudulently orknowingly utters, forges “ and makes utters any forged document,cheque, promissory note or other negotiable instrument -”, theoffence under section l(2)(b) MOA, 2004, though not in the bestphraseology, is worded in alternative. That is the delivery of anyproperty or payment of money by virtue of any forged or falsecheque. Unjust enrichment is the substance of the offence undersection 1(2)(b) of MOA, 2004. Counts 3 & 4, each, allege thesubstance of that offence of unjust enrichment. The allegations harpon the words with intent to defraud the Government of AdamawaState did cause payment of monies belonging to Adamawa StateGovernment to BBB Project. By his narrow interpretation of section1(2)(b) MOA, 2004 the learned appellant’s counsel has erroneouslymisconstrued the provision contrary to the express letters of the(c)provisions.

Courts now adopt the “purpose” approach which seeks to giveeffect to the true purpose of the legislation: Nafiu Rabiu v. KanoState (1980) 8 – 11 SC 130; A.-G., Lagos State v. A.-G., Federation(2003) 12 NWLR (Pt. 833) 1 at 187. In so doing they ascertain theintention of the parliament from the language used in the statute:Buhari v. Yusufu (2003) 14 NWLR (Pt. 841) 446 at 535. To ascertainthe true purpose of the statutory provision or the intension of thelawmaker for enacting the provision resort is usually had to theordinary and natural meaning of the words of the statute Okumagbav. Egbe (1965) 1 ALL NLR 62; Ifezue v. Mbadugba (1984) 1SCNLR 427. By this approach courts avoid the narrow constructionof the statutory provision that ultimately defeats the intention of thelawmaker and the purpose of that statutory provision.

One other cardinal principle that guides interpretation orconstruction of a statute is that its provisions are not to be construedor interpreted by placing a gloss on them by importing thereto wordsor matters extraneous to the provisions. In Unipetrol v. E.S.B.I.R(2006) All FWLR (Pt. 317) 413 at 423, (2006) 8 NWLR (Pt. 983)624 this point was emphasised that the words of a statute are to begiven their ordinary meaning; and that a court, when interpreting

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a statutory provision, must give the words and language used inthe provision their simple ordinary meaning, without venturingoutside the provision to introduce extraneous matters that maylead to circumventing or giving the provision an entirely differentinterpretation from what the law maker intended it to be. In otherwords it is not permitted, in interpreting a statutory provision, forthe court to either add words thereto, or take words therefrom,the original text of the provision. The rationale is obvious: courtsdo not make laws. They merely interpret and declare the law asmade by the legislature. In its interpretative duty every court of lawmerely brings out only the clear intention of the law maker: Obusezv. Obusez (2007) 30 NSCQR 329, (2007) 10 NWLR (Pt. 1043) 430.

The appellant’s counsel had clearly misconceived the offencecreated by section 1(2)(b) of MOA, 2004 viz-a-viz the allegationslaid out in counts 3 and 4 of the amended charge. He made so muchfuss and much ado about nothing. The lower court observed in itsjudgment, particularly at page 457 of the record, and I agree, that“what this issue boils down to is; whether on the facts in the charge,the appellant was in anyway misled.”

The only opposition the appellant, through his counsel, hadto the filing of the amended charge on 27th April, 2015 before theevidence of the DW.4 – to bring the amended charge “in line withthe evidence already given” was his “feeble insistence that the trialcourt should “direct the prosecution to come properly”. Counselnever suggested any defect ex-facie the counts nor that the appellantwould be or was misled thereby.

The plea of the appellant to counts 3 and 4, taken in the presenceof his counsel on 19th May, 2015, was done after counts 3 and 4were read and explained to him. The appellant clearly indicatedto the court, in the presence of his counsel, that he understood theallegations made against him in the said counts 3 and 4, which werelaid out to bring them in line with the evidence already given. Itwas only after his conviction by the trial court and in his noticeof appeal, particularly in grounds 1 – 5 thereof, at the lower courtthat he, raised “objections” to counts 3 and 4 on grounds of non-disclosure therein of the element of forgery.

The essence and aim of preliminary objection is to terminatethe proceedings in limine and at its infancy without the courtdissipating unnecessary energies in considering an unworthyor fruitless matter in the proceedings. It saves time by its timely

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foreclosure of the proceedings: Yaro v. Arewa Construction Ltd. &Ors. (2007) 6 SCNJ 418, (2007) 17 NWLR (Pt. 1063) 333; Saniv. Okene Traditional Council 5 SCNJ 246, (2008) 12 NWLR (Pt.1102) 691; EFET v. INEC (2011) 1 SCNJ 179 at 194, (2011) 7NWLR (Pt. 1247) 423. Unless the issue in the preliminary objectionis jurisdictional or it is fundamental and it goes to the roots; failureto raise preliminary objection on matters of procedure could raiseagainst the objector issues of waiver and estoppel by conduct: Saniv. Okene Traditional Council (supra). Since preliminary objection isaimed at scuttling the hearing of the matter or an aspect of it; and byits intendment, it has to be determined as a threshold matter [Obasiv. Mikson Est. Industries Ltd (2016) LPELR – 40704 (SC)], (2016)16 NWLR (Pt. 1539) 335 raising it belatedly may give impressionof acquiescence, waiver and estoppel.

Section 167 of the Criminal Procedure Act, under which theproceedings at the trial court were conducted, categorically andclearly provides that an objection to a charge for any formal defecton the face thereof shall be taken immediately after the charge hasbeen read over to the accused person and not after. This issue isprocedural. Failure of the defence to timeously object to any formaldefect on the face of the charge after the charge had been read overto the accused person amounts to waiver of the right to object tothe alleged formal defect on the face of the charge as in the instantcase. The accused person cannot thereafter be heard to say theformal defect on the face of the charge had denied him the right tofair hearing guaranteed by section 36(1) & of the Constitution,as this appellant seems strenuously, without success, to argue. Apassage from the decision of this court in Nwachukwu v. The State(2007) 17 NWLR (Pt. 1062) 31 per Muhammad JSC has put paidto this contention of the appellant. That is-

The trite position of the law is that when a charge is readto the accused person and he makes his plea and thecourt records his plea and thereafter proceeds to trial,the presumption is that the court is satisfied that thecharge was explained to the accused to his satisfactionin compliance with the provisions Constitution andsection 215 of the Criminal Procedure Law – See Sololav. State (2005) 11 NWLR (Pt. 937) 460; Erekanure v.State (1993) 5 NWLR (Pt. 294) 385; Kajubo v. State(1988) 1 NWLR (Pt. 73) 721.

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When a party (as the appellant herein) is represented by acounsel, at the time he takes his plea to the charge read and explainedto him, fails to complain about any defect on the face of the charge:the presumption is that the party is not misled by the charge readand explained to him to which he gave his plea. The mere fact ofthe presence of his defence counsel raises the strong presumptionthat there was no miscarriage of justice to the defendant at the Bar.

The complaint of the appellant on issue 2 proceeds on thecontention inter alia that exhibit PW6A, an original of a publicdocument is not admissible in evidence and that only a duly certifiedcopy of the same public document is admissible in evidence. Thisreasoning or argument is puerile, illogical and unreasonable. It isnot admissible in any analytical jurisprudence. The law, as restatedrecently in Kassim v. The State (2017) LPELR – 42586 (SC),(2018) 4 NWLR (Pt. 1608) 20 is that where the original of a publicdocument is available, it is admissible without the requirement of itscertification. Relying on Minister of Lands, WN v. Azikiwe (1969)ALL NLR 49 (SC) at 58 – 59; (1969) 6 NSCC 31 at 37 – 38 SotariF. Tamunowari: Annotation of the Nigerian Evidence Act, 2 nd Ed. atpage 267 states the law correctly: certified true copy is admissiblein the absence of the original copies of public document with theexception of those in section 106 of the Evidence Act, 2011.

The lower court found, correctly, that exhibits PW6C1 andPW6C2, tendered through the PW.6 are relevant to the facts in issuein the trial of the appellant on counts 3 and 4 allegations against him.A piece of evidence offered in proof of the fact in issue is relevantand material. Relevancy is generally the best test or considerationfor the admissibility of a piece of evidence under the Evidence Act,2011.

The contention of the appellant’s counsel is not that exhibitsPW6C1 and PW6C2 are not relevant to the facts in issue. He submitsrather that the defect in the Certificate of Identification allegedlythe foundational evidence for the two computer generated piecesof evidence, renders the two documents inadmissible in evidenceunder section 84 of the Evidence Act. This is a clear evidence ofthe mixed thoughts of the appellant’s counsel resonating in hisdiscordant arguments.

Exhibits PW6C1 to PW6C5 are the 5 various extra-judicialstatements of the 1st accused admitted in evidence at page 105, after

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the flimsy, albeit misleading, objection to their admissibility “ongrounds of non-certification by public officers of the statements”.They are not computer generated documents for the purpose of theapplicability of section 84 of the Evidence Act. And even if theywere; being extra-judicial statements of the 1st accused, they are notrelevant for this appeal of the 2nd accused/appellant. I must confessthe difficulty I have following the disoriented thoughts of theappellant’s counsel as reflected in his arrangement of his argumentsor submissions.

The appellant was, on 29th October, 2013, represented by aLegal Practitioner, E. Elija, Esq. (appearing with T. U. Danjuma,Esq) when the “two cheques (were) admitted as exhibits PW7Aand PW7B respectively”, without objection. They were tenderedthrough PW.7 (an unsworn witness), the Branch Manager ofKeystone Bank, Yola Branch, who came on subpoena. ExhibitsPW7A and PW7B are respectively cheques for N31.5M andN21.0M, the subject of counts 3 and 4.PW.7 testified that by thetwo cheques his Bank was instructed “to issue drafts in those sumsin favour of Al-Akim Nigeria Limited”.

While the complaint under issue 2 is that exhibits PW7Aand PW7B, and others were wrongly admitted in evidence, thearguments under the issue are inter alia that “the failure to tender theexhibits through the maker to enable the appellant cross-examinehim breached the appellant’s right to fair hearing under section 36of the Constitution”; and that the Court of Appeal wrongly, on thefact of the death of the Permanent Secretary, affirmed the decisionof the trial court that exhibits PW7A and PW7B were admissibleunder section 83(1) of the Evidence Act. The appellant concedesthe death of the Permanent Secretary who was the maker of the twoexhibits.

Exhibits PW7A and PW7B, forming part of the record ofthe Bank were produced, upon subpoena, by the PW.7 who atthe material time was the Branch Manager of Keystone Bankhad personal knowledge or who reasonably is supposed to havepersonal knowledge of the instruction his Bank had as regards thetwo cheques. He testified unchallenged that upon the two chequeshis Bank was instructed “to issue drafts in those sums in favourof Al-Akim Nigeria Limited”. I do not think, and I so hold thatthe lower court was not wrong in the invocation of section 83(1)

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of Evidence Act to affirm the trial court’s holding that exhibitsPW7A and PW8B were admissible in evidence or that they werenot wrongly admitted in evidence. Section 83(1), particularly theproviso thereto, of the Evidence Act more germane to this discourseprovides-

83(1) In any proceedings where direct oral evidence of a factwould be admissible, any statement made by a personin a document and tending to establish that fact shall,on production of the original document, be admissibleas evidence of that fact if the following conditions aresatisfied –

(a)if the maker of the statement either –

had personal knowledge of the matters(i)dealt with by the statement, or

Where the document in question is orforms part of a record purporting to be(ii)a continuous record,

made the statement (in so far as the mattersdealt with by it are not within his personalknowledge) in the performance of a duty torecord information supplied to him by theperson who had, or might reasonably besupposed to have, personal knowledge of thosematters; and

(b). If the maker of the statement is called as awitness in the proceeding; Provided that thecondition that the maker of the statement shallbe called as a witness need not be satisfied ifhe is dead, or unfit by reason of his bodily ormental condition to attend as a witness, or ifhe is outside Nigeria and it is not reasonablypracticable to secure his attendance, or if allreasonable efforts to find him have been madewithout success.

Upon the death of the Permanent Secretary, who allegedlymade exhibits Pw7A and Pw78, as the appellant concedes; it wouldno longer be feasible to call him to testify and be cross- examinedon exhibits Pw7A and Pw7B. The suggestion by the learned counselthat the appellant was denied fair hearing merely by the fact thatthe prosecution did not make available the deceased PermanentSecretary as a witness is most preposterous and unreasonable.

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The appellant cannot also be heard to submit that exhibitsPw7A and Pw7B were dumped on the trial court. The Pw.7 testifiedthat his Bank was instructed by exhibits Pw.7A and Pw.7B to raisedrafts in the sums appearing ex – facie in favour of Al-Akim Nig.Ltd. That explanation goes to the core issue in counts 3 & 4.

The complaint in issue 3 is that the allegations in counts 3 &4: that the appellant committed the offence created by section 1(2)of MOA, 2004, was not proved beyond reasonable doubt to warrantthe lower court affirming the convictions of the appellant on theseallegations. The substance of the allegations in counts 3 & 4 is thatthe appellant “with intent to defraud the Government of AdamawaState did cause” the payment of the sums of N31,500,000.00and N21,000,000.00 into the GTB account operated by BBBProject, a private entity for purposes other than the purposes themonies were appropriated by the LG-JAC. The allegations areaccommodated by a separate limb of section 1(2)(b) of MOA,2004 providing that –

Any person who – with intent to defraud – theGovernment of any State – causes the delivery orpayment to himself or any other person of any property- shall be guilty of an offence and liable on convictionto imprisonment for a term not exceeding twenty-oneyears without option of fine.

Forgery is not an active element or ingredient in this aspect ofthe offence created by section 1 (2)(b) MOA, 2004, as the appellant’scounsel strenuously seems to impute, albeit falsely. Accordingly,the prosecution only needed to prove beyond reasonable doubt,pursuant to section 135 of the Evidence Act that the appellant

i.with intent

ii. to defraud Adamawa State

iii. falsely

iv. caused the payment/delivery

v. to himself or some other person

vi. property or money

vii. belonging to Adamawa State

These are the simple facts constituting the offence of unjustenrichment under section 1(2)(b) MOA, 2004.

The appellant’s counsel submits that “the appellant was notcharged with transferring the total sum of N51.5M to AI-AkimInvestment Nig. Ltd as he was only charged with transferring the

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total sum of N51.5M into BBB Project account”. The only battleground, as I can glean from the learned counsel’s argument, are thequestions: who caused the transfer of the money and whether hehad the intent to defraud its owner? There is no dispute, betweenthe appellant and the respondent that the total sum of money, thesubject of counts 3 & 4 belonged to and/or is owned by AdamawaState Government and that the BBB Project, as an entity, is notAdamawa State Government.

It is not in dispute that at the material time the appellant as theCommissioner for Local Government was the Chairman of LG-JAC. He admitted this fact when he testified as Dw.2 at pages 165-167 of the record. He was at the same time the Chairman/ChiefExecutive Officer of Al-Akim Investment Nig. Ltd as well as thesole signatory to the account of the said private company. The PW.5testified on this unchallenged. The lower court affirmed the findingof fact by the trial court on this point.

The vouchers, exhibits PW.1A and PW.1B were raised forthe purposes the sums of N31,500,000.00 and N21,000.000.00were appropriated by the LG-JAC; that is, assistance to INECand procurement of vaccines for the 21 Local Governments. Theappellant was very much aware of these facts. The PW.7 testified thaton the cheques exhibits PW.7A and PW.7B his bank was instructedto raise drafts respectively for the sums of N31,500,000.00 andN21,000,000.00 in favour of Al-Akim Investment Nig. Ltd. that washow the monies were traced to the account of Al-Akim InvestmentNig. Ltd which the appellant was the sole signatory to.

The lower court posed a question: how did the amounts sovoted subsequently find their ways, as contributions, into theaccount of BBB Project via the account of Al-Akim InvestmentNig. Ltd? In answer, the lower court made this specific finding offact. That is –

In his defence, the appellant alleges that the sums ofmoney in exhibits PW7 A and PW7B were chequesraised for the purposes stated in exhibits PW1A andPW1B, was actually 50% redemption of a pledge madeby [AI-Akim Investment Nig. Ltd] at a fund raising eventfor the return of the Governor to the seat of Government.The evidence of the PW.1, PW.4 and PW.6 buttressedby exhibits PW.1A and PW.1B (the vouchers) whichexplained the purpose of the attached cheques, gives a

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lie to this defence. By the same token, they discredit theevidence of the Dw4 and exhibits DW4A & DW4B. Thelatter documents tendered through Dw.4 were clearlyprocured to buttress the bogus defence put out by theappellant. The learned trial Judge was right to place noweight on them.

From all these pieces of evidence, as well as numerousothers before the trial court, it is evidence that the 1strespondent established by credible evidence that it wasthe appellant who authorised the issuance of the chequeexhibit PW.7A and PW.7B.

These adverse findings of fact are not subject of any complaintin the issues formulated for the determination of this appeal. Thefindings remain inviolate and they subsist between the partiesherein.

The question: who authorised the payment of the sums ofN31,500.000.00 and N21,000,000.00 to the account of BBB Projector to BBB project was answered in the unchallenged evidence-in-chief of the PW.6 at page 118 of the record. The said sums ofmoney were transferred from the account of Al-Akim InvestmentNig. Ltd to BBB Project respectively on 2nd December, 2002 and3rd February, 2003. Since the appellant was the sole signatory to theaccount of Al-Akim Investment Nig. Ltd, the presumption, havingregard to common course of private banking business in relationto the facts of this case, is that it was the appellant, and only theappellant, who mandated the said transfers to BBB Project fromthe account of Al-Akim Investment Nig. Ltd as the sole signatoryon the mandate card: Section 167 of the Evidence Act. The saidsums, as PW.6 testified, that left the account of the State and LocalGovernment Joint Account (where the appellant was the presidingchairman) passed through the account of Al-Akim Investment Nig.Ltd (in respect of which the appellant was the sole signatory) andended up subsequently with the BBB Project.

My Lords, a person is said to have done a thing with intentto defraud another when he does the thing with intent to deceiveand by means of such deceit to obtain some advantage for himselfor another, or to cause loss to any other person. In this case theappellant had authorised the payment or diversion of the total sumof N52,500.000.00 from the account of LG – JAC to BBB Projectthrough the account of Al-Akim Investment Nig. Ltd (he was the

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sole signatory) to promote the political cause or interest of hisboss Governor Boni Haruna in his re-election bid. He had thus byunlawful means, caused wrongful gain or unjust enrichment to theBBB Project and unjust loss or wrongful loss, Adamawa State LG-JAC. It is clearly evident from the facts in the printed record that,at the material time, neither Al-Akim Investment Nig. Ltd nor BBBProject had done any job or project for Adamawa State Governmentto warrant the payment of a sum of N52,500.000.00 to them.

The monies paid into the account of BBB Project was meant“to gather funds for re-election” of Governor Boni Haruna. ThePW.6 testified, at pages 118 – 119 of the record, that “the moneystraced to BBB Project Account were all signed and withdrawnthrough cheques by his Excellency Boni Haruna”. The intent topermanently deprive the Adamawa State Government of the sumsthe subject of counts 3 & 4 has thus been established.

The trial court upon convicting the appellant on counts 3 & 4of the amended charge imposed a prison term of 10 years on eachcount. In addition, the appellant was ordered to “return/refund thesum of N51.5million to Adamawa State Local Government JointAccount, from where it was stolen and diverted by him and hiscompany”. The sum of N51.5million, instead of N52.5million,is clearly an arithmetic error. Against this order the appellant, atlower court in his ground 19 of the grounds of appeal, complainedthat the trial court erred in making the order and that the orderhad occasioned a miscarriage of justice to him. At the lower courtthe complaint in the said ground 19 was brought under issue 7,formulated thus:

Whether the conviction and sentence of the appellantought not to be set aside in the instant appeal?

The 1st respondent, at the lower court, in the 1st respondent’sbrief at paragraph 3.97 thereof, at page 405 of the record, opinedthat the order for return/refund of the sum of N51,500,000.00 –

Was in order and substantial compliance withthe provisions of the Administration of CriminalJustice Act, 2015 which provides for restitution andcompensation of the victim of crime. See section 319of the Administration of Criminal Justice Act, 2015

In the appellant’s reply brief it was contended, inter alia, thatas “the Administration of Criminal Justice Act, 2015 was not in

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existence at the time of the alleged commission of the offence in2002; it is a violation of the appellant’s right to fair hearing protectedunder section 36(12) of the Constitution of the Federal Republic ofNigeria, 1999 (as amended) to the effect that the appellant couldonly be punishable in accordance with an existing law”,

The lower court holding that section 319 of the Administrationof Criminal Justice Act 2015 (ACJA, 2015) being merely proceduralcould be construed, on the authority of Afolabi v. Gov. of Oyo State(1995) LPELR – 196 (SC) 1 at 54, (1985) 2 NWLR (Pt. 9) 734; GoldMark Nigeria Ltd v. Ibafon Co. Ltd (2012) LPELR – 9349 (SC) 1 at40 – 43; (2012) 10 NWLR (Pt. 1308) 291; Orthopaedic HospitalsManagement Board v. Garba (2007) SC (Pt. II) 138; (2002) 14NWLR (Pt. 788) 538; Are v. AG. Western Region (1962) 1 SCNLR224: to have retrospective effect and that the trial Federal HighCourt could be guided thereby to make the order for restitution. Itaccordingly, dismissed the appellant’s complaint against the trialcourt’s order directing him to “return/refund the sum stolen ordiverted” from the Adamawa State LG – JAC.

Mr. Andrew Malgwi of counsel to the appellant, whosemanner of advocacy was correctly said by the lower court to be fullof “trifling and tiresome technicalities”, had wrongly posited, in theappellant’s brief of argument, that the appellant was convicted andpunished for the offence of stealing and diversion contrary to theoffences charged in count 3 & 4 that “the appellant who was neithercharged nor convicted under section 319 of the Administration ofCriminal Justice Act, 2015, which only came into existence in2015 could not be validly punished under the said law”; and that byvirtue of section 36(8) & of the Constitution, no penalty shallbe imposed for any criminal offence heavier than the penalty inforce at the time the offence was committed. The learned counselhas missed the point and got it all wrong.

Section 319 of ACJA, 2015 creates no offence nor prescribesany penalty for any offence. The ACJA, 2015 in section 319(1)(a)

very much apposite for this issue, provides –

319.(1) A court may, within the proceedings or while passingjudgment, order the defendant or convict to pay a sumof money –

as compensation to any person injured by the(a)offence, irrespective of any other fine or other

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punishment that may be imposed or that isimposed on the defendant or convict, wheresubstantial compensation is in the opinion ofthe court recoverable by civil suit.

The rule that a statute must not, ordinarily, be construed togive it retrospectivity so as to impair or take away vested right hasno application to statute that is purely procedural. In matters ofprocedure no person has a vested right in any course of procedure:Ojokolobo v. Alamu (1987) 7 SC 124; (1987) 3 NWLR (Pt. 61) 377(SC). In King v. Dharma (1905) 2 KB 335; cited with approval inOjokolobo v. Alamu (supra), Lord Alvestone CJ, at 338, held thatstatutes which make alterations in procedure are retrospective.

Upon my painstaking perusal of section 319 of ACJA, 2015, Iagree with the lower court that the provision is procedural. It permits,in order that justice be done to all parties concerned (particularlythe victim of crime), the criminal court, in its judgment, to makeorder of restitution in favour of the victim of crime. It merely, forpurposes of equity and substantial justice, empowers the courtto make consequential order of restitution. The legislature, it ispresumed, does not intend what is unjust: Ojokolobo v. Alamu(supra).

This court, in Ifezue v. Mbadugha (1984) 5 SC 79, (1984) 1SCNLR 427 construed section 258(1) of the 1979 Constitution,impari materia with section 294(1) of the 1999 Constitution,that prescribes three months, from the date the court took finaladdresses in a matter as the period within which a court of law shallmandatorily deliver its judgment, as vesting a substantive right inthe parties qua duty on the court. See also Odi v. Osafile (1985) 1NSCC 17, (1987) 2 NWLR (Pt. 57) 510; Sodipo v. LemminkainenOY (1985) 2 NWLR (Pt. 8) 547. A judgment delivered after 3months was held to be a nullity.

Section 319 of the ACJA, 2015 is not on the same pedestalwith sections 258 and 294(1), respectively of the 1979 and 1999Constitutions. The new sub-section to section 258 of the 1979Constitution by way of amendment (now section 294(5) of the1999 Constitution) which provided that the decision of a court, notin compliance with section 258(1), shall not be declared a nullityunless the appeal court “is satisfied that the party complaining hassuffered a miscarriage of justice thereof” was held in Ojokolobo v.

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Alamu (supra) not to have retrospective effect. Nnamani, JSC gavethe explanation: “that the legislature in making the amendmentmust have been motivated by the desire to lessen the rigours onlitigants often brought about by the application of section 258(1) ofthe Constitution”.

The resitutional provision of section 319(1)(a) of ACJA, 2015is discretionary. The purpose of the powers vested in the trial courtto make the consequential order for restitution or compensation isnot only to ensure that the trial court does justice to all concerned butalso to avoid multiplicity of actions in tandem with the establishedpublic policy that there shall be an end to litigation.

On the issue: whether the judgment of the trial court deliveredmore than 90 days did not occasion a miscarriage of justice and oughtto be set aside, appears to be an issue premised on section 294(5)of the 1999 Constitution. I had earlier pointed out the rationale forthese provisions in the words of Nnamani, JSC in Ojokolobo v.Alamu (supra). That is “to lessen the rigours on litigants broughtabout by the application” of section 294(1) of the Constitution. Itis, for this reason, and it is incumbent on the appellant, complainingthat the trial court delivered its judgment outside the three monthsprescribed by the Constitution for the decision to be delivered afterfinal addresses and that the decision is therefore a nullity, to showthe miscarriage of justice he suffered by the fact of the allegeddelay. Section 294(5) of the 1999 Constitution is not intended forthe appellant, as the instant, to call upon the appeal court to re-evaluate or further evaluate the evidence the trial court relied uponto convict, him (the appellant). That is the erroneous substanceof the appellant’s submissions under his issue 5.He has clearlymisconceived the purport of section 294(5) of the Constitution.

On 17th November, 2015, after it failed to deliver its judgmentreserved to 6th October, 2015 after the final addresses on 6th July, 2015,the trial court allowed the parties to re-adopt their final addresses,and ruled that the said final addresses had been duly re-adopted.Thereafter it again reserved the judgment to 30th November, 2015,which judgment it delivered not on that date but on 4th December,2015 within 3 months or 90 days from 17th November 2015. Theappellant did not challenge the decision of the trial court, on 17thNovember, 2015, that the final addresses be and were re-adopted.It is an appealable decision within section 318 of the Constitution.He is, in the first place and circumstance, deemed to accept thatsubsisting decision.

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The appellant has not shown that the delay in delivering thejudgment did occasion to him a miscarriage of justice. I agree withthe respondent that “the delay in delivering the judgment did notaffect the (trial) court’s perception, appreciation and evaluationof the case before it”, and that “the Court of Appeal was right inholding that there was no miscarriage of justice occasioned by thedelay”.

Finding no substance in the appeal, on all the issues canvassed,I hereby dismiss the appeal in its entirety. The decision of thelower court affirming the conviction of the appellant and all theconsequential orders made pursuant thereto are hereby affirmed.

Appeal dismissed.

PETER-ODILI, J.S.C.: I agree with the judgment just deliveredby my learned brother, Ejembi Eko JSC and to register the supportI have in the reasonings from which the decision came about, I shallmake some comments.

This is an appeal against the decision of the Court of Appeal,Yola Division or court below or lower court delivered on the 20thday of June, 2016, Coram: Jummai Hannatu Sankey, Saidu TankoHanini and Biobele Abraham Georgewill JJCA which dismissed theappeal as lacking in merit. The appeal stemmed from the judgmentof Bilkisu Bello Aliyu J. of the Federal High Court, Yola Divisionwhich convicted the appellant and his company Al-Akim Nig. Ltd.and the appellant was sentenced to 10 years imprisonment.

The background facts that led to this appeal are well set outin the leading judgment and no useful purpose will be served inrepeating them save to utilise any part of the facts when the occasioncalls for it.

On the 13/2/20 date of hearing, learned counsel for theappellant, Andrew Malgwi Esq. adopted the further amended briefof argument settled by Rickey M. Tarfa SAN, filed on the 18/11/19and deemed filed on 5/2/20 in which were raised five issues fordetermination which are thus:-

Whether counts 3 and 4 which did not disclose allthe necessary, essential, required and fundamentalingredients as well as detailed nature of the offencescharged, are by doctrine of judicial precedent, noti.incurably incompetent and if same is such a mere

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irregularity that can be defeated by mere plea of theappellant. (grounds 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12and 13).

ii. Whether exhibits PWC1, PWC2, PW6A, PW7A andPW7B were not wrongly admitted to convict theappellant. (grounds 14, 15, 16, 17, 18 and 19).

iii. Whether the respondent proved by cogent, compelling,conclusive, positive and admissible circumstantialevidence, each of the necessary/essential ingredientsof the offences in counts 3 and 4 beyond reasonabledoubt. (grounds 20, 21, 22, 13, 24, 27, 28 and 29).

iv. Whether the sentence of the appellant for the allegedoffences committed in 2002 is justifiable under section319 of the Administration of Criminal Justice Act,2015. (ground 30).

v. Whether the judgment of the trial court delivered aftermore than 90 days did not occasion a miscarriage ofjustice and ought not to be set aside. (grounds 25 and26).

Learned counsel for the appellant also adopted the reply brieffiled on 5/2/2020.

For the respondent, learned counsel, Samuel Okeleke Esq.adopted the respondent’s amen…

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