AL-AKIM INVESTMENT NIGERIA LIMITED v. FEDERAL REPUBLIC OF NIGERIA & ANOR (2018)

In The Court of Appeal of Nigeria

On Friday, the 2nd day of March, 2018

CA/YL/142CN/2015

Before Their Lordships

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI               Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI           Justice of The Court of Appeal of Nigeria


Between

AL-AKIM INVESTMENT NIG. LTD   Appellant

AND

1. FEDERAL REPUBLIC OF NIGERIA
2. JOHN BABANI ELIAS                    Respondents

…………………….A…………………….SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the Federal High Court sitting in Yola and delivered on the 4th December, 2015 in case No. FHC/YL/10C/2013 by which Judgment the Appellant as the 3rd accused was convicted and sentenced along with one other person, by name, John Babani Elias, the 2nd respondent herein under Section 1 (2)(b) 3(2) of the Miscellaneous Offences Act, Cap M17, Laws of the Federation of Nigeria, 2004.The appellant and the 2nd respondent were jointly charged in counts 3 and 4 of the amended charge with causing the payment of the sum of N31,500,000 (Thirty One Million, Five Hundred Thousand Naira) and N21,000,000. 00 (Twenty One Million Naira) into GTBank account operated by Mohammed Innuwa Bassi with the intention to defraud the Government of Adamawa State; a Charge or set of charges which the appellant had denied.To prove her case the prosecution, at the trial Federal High Court called evidence of Seven (7) witnesses and tendered in evidence twelve (12) Exhibits which the trial Court admitted and marked same accordingly.
In defence of the case, the appellant, at the close of prosecution’s case, called evidence of two (2) witnesses also tendered two (2) documents in terms of Exhibits DW4A and DW4B.The Court took counsel’s final addresses and in a reserved Judgment delivered on 4th December, 2015, found against the appellant and the 2nd respondent and accordingly convicted and sentenced the appellant to a fine of N5 Million Naira. The appellant as a corporate body was ordered to wind up and forfeit her assets to the Federal Government.Against this Judgment and order, the appellant appealed to this Court initially on 4(four) grounds by virtue of the Notice of Appeal dated and filed on December, 2015. However by the supplementary Notice of Appeal dated the 1st March, 2016 and filed on the 2nd March, 2016, the appellant has appealed to this Court on the 7(seven) grounds set out in the said supplementary Notice of Appeal. The 7 (seven) grounds of appeal are reproduced hereunder together with the particulars thus:-1. GROUND 1
That the Trial Court erred to have rejected Exhibits DW4A & DW4B in her Judgment as worthless documents.

PARTICULARS OF ERROR:
The documents Exhibits DW4A & DW4B are documents showing how the Appellant Company applied for the Contract and the said contract was awarded by ALGON for the production of INEC materials and Exhibit DW4B was the approval letter of the Contract.

2. GROUND 2.
That the trial Court erred to have held that ALGON is not Contract awarding body.
PARTICULARS OF ERROR:
That Exhibit DW4A is an application for the Supply of Contract for the INEC Registration and Exhibit DW4B is the approval of same. There is nothing relied upon to show that ALGON is not a Contract awarding body.

3. GROUND 3.
That the Trial Court erred to have held that the Appellant was paid N21, 000, 000. 00 into its Account.

PARTICULARS OF ERROR:
The Appellant has not been paid N21, 000, 000. 00. There is no evidence before the Court to show that the sum of N21, 000, 000. 00 was paid into Appellant’s Account and same paid to Guaranty Trust Bank.

4. GROUND 4.
That the Judge of the Trial Court is against the weight of evidence.

PARTICULARS OF ERROR:
The evidence of the prosecution and that of the Defendant were not properly 
evaluated.
5. GROUND 5.
That the Trial Court erred in Law to have convicted the Appellant for an Offences not proved before the Court.

…………………….B…………………….

PARTICULARS OF ERROR:
That the Appellant was convicted under Section 1(2)(b) of the Miscellaneous Offence Act 2004, Cap M17 Laws of the Federation of Nigeria.


6. GROUND 6.
That the Trial Court raised issue suo motu without giving an opportunity to the Appellant to address the Court on same


PARTICULARS OF ERROR:

(a). That the sum of N31.5 Million was paid to the Appellant and was diverted to BBB Project and not INEC was an intend to defraud the Government.


7. GROUND 7.
That the Trial Court erred to have admitted Exhibit PW71A and PW71B and convicted the Appellant on same.


PARTICULARS OF ERROR:
The two cheques Exhibit PW71A and PW71B are cheques which on their back were written issue bank draft payable to Al-Akim.

Parties through their respective counsel filed and exchanged briefs of argument after the transmission of record of appeal to this Court on the 17th December, 2015.
In the appellant’s brief of argument deemed on the 17th January, 2017, the following 6 (six) issues were identified or formulated for determination of Court at page 3, thus:-
1. Whether Exhibits DW4A and DW4B are worthless documents that does (sic) not exonerate the appellant from being convicted (Distilled from Ground one).
2. Whether ALGON is not a contract awarding body that can award contract to the appellant (Distilled from Ground two).
3. Whether the sum of N21 million was paid into appellant’s account and acknowledge by appellant (Distilled from Ground three).
4. Whether the appellant was properly convicted by the trial Court under Section 1(2) (b) of the Miscellaneous Offences Act 2004. Cap M17, Laws of the Federation of Nigeria (Distilled from Ground five).
5. Whether the trial Judge was not in error when he raised issue Suo motu without giving an opportunity to the parties to be hared on same (Distilled from Ground six).
6. Whether the Bank drafts are not necessary before the Court (Distilled from Ground seven).

The 1st respondent, in the brief of argument filed on her behalf identified 6(six) issues similar to those of the appellants. The 6(six) issues are reproduced here below:-

i. Whether Exhibits DW4A and DW4B are worthless documents that does (Sic) not exonerate the appellant from being convicted
ii. Whether ALGON is not a contract awarding body that can award contract to the appellant.
iii. Whether the sum of N21 million was paid into appellant’s account and acknowledge (sic) by appellant.
iv. Whether the appellant was properly convicted by the trial Court under Section 1 (2) (b) of the Miscellaneous Offences Act Cap M 17 laws of the Federation of Nigeria, 2004.
v. Whether the trial Judge was not in error (sic) raised issue suo motu without giving an opportunity to the parties to be heard on same.
vi. Whether the bank drafts are not necessary before the Court.

The 2nd respondent did not file any brief of argument.
The appeal came up for hearing on the 4th December, 2017 and Learned Counsel for the appellant and 1st respondent respectively adopted their briefs of argument. The 2nd respondent through his counsel indicated his desire not to contest the appeal.

…………………….C…………………….

In addressing this appeal, I will adopt the issues the appellant has formulated in the brief of argument filed on its behalf and in the manner the appellant or counsel has proceeded to argue same in their briefs of argument.

Issue No. 1
Whether Exhibits Dw4A and Dw4B are worthless documents that does (sic) not exonerate the appellant from being convicted. (Distilled from Ground 1 of the Notice of Appeal)

In arguing issue No. 1, learned appellant’s counsel gave reasons why the trial Court should have given credence to Exhibit, Dw4A and Dw4B stating that same are primary evidence in their original form. The former that is, Exhibit Dw4A was described as the application made by the Managing Director of the appellant wherein he solicited for contract from the Chairman of ALGON (Association of Local Government of Nigeria) and the latter, that is, Exhibit DW4B as the approval given of Exhibit Dw4A. Being the original, he said, Exhibits Dw4A and Dw4B do not require certification under Sections 102 or 104 of Evidence Act, to make same admissible in evidence.

To the learned appellant’s counsel, the two documents are relevant pieces of evidence and it is wrong of the trial Court to describe those documents as worthless. He argued, stating in any case, that Exhibits Dw4A and Dw4B are not public documents that require certification.

Learned Respondent’s counsel argued the contrary stating in his brief of argument that since the evidence of Dw4 through whom Exhibits Dw4A and Dw4B had been discredited under cross-examination in every material particular, the said exhibits were no longer relevant, there being no contract ever executed as alleged, let alone being covered by Exhibits Dw4A and Dw4B.

In reference to the evidence of Dw4, he argued that the witness presented the original copy of Exhibit Dw4A to the chairman of ALGON through the Ministry of Local Government and Chieftaincy Affairs. By that he said, it means that Exhibit Dw4A tendered at the trial Court is the photocopy of what was submitted to the ALGON Chairman. He argued further and submitted that even on the face of Exhibit Dw4A there is nothing to indicate that the application (Exhibit Dw4A) was acknowledged as having been received by the chairman or the same stamped as a mark of receipt. He argued further, and submitted that the signature mark on Exhibit Dw4A was written in blue ink to debunk the claim that Exhibit Dw4A is a photocopy of the original left with the chairman of ALGON.
It is further argued by the learned counsel but without conceding, the fact that the document submitted to ALGON Chairman was the original copy, then Exhibit Dw4A ought to have been certified by an officer of ALGON in accordance with the law, being a public document. He argued that the only way to prove the content of a Public document is by the production of the Original document itself or production of a certified true copy of the Original. Reliance was placed on the case of Uwua Udo V. The State (2016) All FWLR (Pt.840) 1179, 1209 and Section 89(e), 90(1)C, 102, 104, 105 of the Evidence Act. For those reasons, it is further argued, that the trial Court was right to disregard Exhibit Dw4A as improperly admitted. He referred us to Okoreaffia Vs. Agu (2012) 1 NWLR (Pt. 1282) 425, 452; Kubor Vs. Dikson (2013) NWLR (Pt. 1345) 534, 550-551.

For almost the same reason as in Exhibit Dw4A, it is argued that Exhibit Dw4B should be ignored and the trial Court rightly did that. He argued stating that Exhibit Dw4B is an afterthought, the same not having been proved to be in existence at the material time it is claimed to be. The claim that the subject matter covered by Exhibit Dw4B was executed and a certificate of Job completion issued, was not proved by the appellant.

He argued that, a certificate of job completion should have been tendered failing which the provision of Section 167(d) Evidence Act can be brought to play and invoked against the appellant. He urged us to resolve this issue against the appellant and in favour of the 1st respondent.

Exhibits Dw4A and Dw4B are documents tendered and admitted through Dw4 in support of the case for of the appellant at the trial Court in line with the principle that the onus to prove reasonable doubt is cast on the accused person where the prosecution had led evidence at the trial to prove her case. See Section 135 (3) Evidence Act. That is the purpose for which Exhibits Dw4A and Dw4B were meant to serve.

…………………….D…………………….

Exhibits Dw4A and Dw4B were tendered to establish the fact that by reason of the existence of those documents, there was reasonable doubt in the case put up by the prosecution, so much so that the prosecution cannot be said had proved her case beyond reasonable doubt.

By their very nature:
(i) Exhibit Dw4A dated 28th October, 2002 is the letter addressed to the Chairman of ALGON by which the author of the letter (DW4) solicited for contract for the supply of certain materials to facilitate INEC’s registration Exercise.

(ii) Exhibit DW4B on the other hand, is the approval given to the request contained in Exhibit Dw4A.

To me therefore, Exhibits DW4A and DW4B remain largely paper works in absence of any clear evidence that the appellant had indeed executed any contract to which of Exhibits DW4A and DW4B relate especially so in the face of the uncontradicted evidence of Pw6 stating among others that the Appellant did not execute any contract job which money was appropriated for that purpose. Pw6 was not cross-examined on this vital point let alone contradict the witness to weaken that piece of evidence coming from Pw6. That is what cross-examination is meant to achieve. This Court in Adeyemi V. State (2011) 5 NWLR (Pt. 1239)1 Per Baje, JCA that:-
It is an established principle of law that where an adversary or a witness called by him testified on a material fact in controversy in a case, the other party should if he does not accept the witness testimony as true, cross-examine on that fact or at least show that he does not accept the evidence as true. Where, as in this case, he fails to do either, a Court can take his silence as an acceptance that the party does not dispute the fact afterall, one of the purpose of cross-examination is to test the veracity of a witness.

In Oforlete V. State (2000) 12 NWLR (Pt. 681) p.415 S.C, the apex Court held:
The noble art of cross-examination constitute a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. It is unsatisfactory if not suicidal hard practice for counsel to neglect to cross examine a witness after his evidence in chief in order to contradict or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong, and will not even feebly dent that unchallenged evidence through other witnesses to controvert the unchallenged evidence.

In the instant case, a careful perusal of the evidence of Pw1 shows that it was not challenged at all. Evidence of Pw6 was neither demolished nor weakened relative to the evidence that the appellant did not execute any contract for which it collected N31.5 Million Naira and N21 Million Naira. That piece of evidence of Pw6 stand unchallenged hence the same can be acted upon. Exhibit DW4A and Exhibit DW4B are not evidence of the performance or execution of the subject-matter covered by Exhibit DW4B. Rather by Exhibits DW4A and DW4B put together, the parties therein reached an understanding as would enable the appellant to supply some goods or items specified in Exhibit DW4B but which were not shown to have been supplied or delivered.

There is no evidence of the performance of that contract neither was a certificate of job completion tendered by the appellant to controvert evidence of Pw6 on this point. Dw4 in the course of his evidence insisted that the appellant executed the contract awarded to it and was issued with a certificate of job completion but fell short of tendering that certificate in evidence as a mark of performance or execution of contract. The evidence of Pw6 can only be controverted on this point by the production of such certificate but failed to do that hence the presumption under Section 167(d) of the Evidence Act can and same is hereby invoked against the appellant in that a Court may presume the evidence which could be and is not produced could, if produced be unfavourable to the person who, withholds it. See Aremu Vs. State (1991) 7 NWLR (Pt. 201) 1, 17-18; Mozie Vs. Mbamalu (2006) 15 NWLR (Pt. 1003) 466; Sunday V. State (2014) LPELR-24415(CA).

Hence, Exhibits DW4A and DW4B are not relevant to prove the fact that the contract was performed. The trial Court, in effect, was right in not according any probative value to Exhibits DW4A and DW4B. Accordingly, Issue No. 1 is resolved in favour of the 1st respondent and against the appellant.

Issue No. 2
Whether ALGON is not a contract awarding body that can award contract to the appellant? (Distilled from 
ground 2).

The appellant or counsel in answer to this question was positive in his approach stating in his brief of argument that ALGON has the capacity to award contract as in Exhibit DW4B.

…………………….E…………………….

The 1st respondent was not forthcoming in his brief of argument on this point on the question whether or not ALGON has the capacity to award contract but looking at Exhibit DW4B it cannot be contested that the appellant was offered a job, and that is, the contract to supply certain items listed and specified in Exhibit DW4B.
The issue germane to the case on hand however is not whether ALGON has the capacity to award contract. Rather the issue is the impact Exhibits DW4A and DW4B have on the case presented by the appellant after-all, those documents, that is, Exhibits Dw4A and Dw4B were tendered through Dw4 to support the case of the appellant as the 3rd accused at the trial. I have taken a position already on this point relative to Issue No. 1. Exhibits DW4A and DW4B cannot be acted upon as evidence of a contract job executed by the appellant. Exhibits DW4A and DW4B speak for itself. Issue No. 2, in effect is resolved against the appellant and in favour of the 1st Respondent.

Issue No. 3 raises the question whether the sum of N21 Million was paid into appellants account and acknowledged by the appellant. I think the issue as framed or distilled above is rather too restrictive. The question, to my mind, should be whether the sum of N21 Million was ever paid to the appellant.

Learned counsel to the appellant in his brief of argument at pages 5 has argued that no such payment was made neither did the appellant receive that money. With all due respect to the learned appellant’s counsel, I think he was being too economical with the truth, given the fact of the existence of Exhibit Pw1B, the Voucher raised in the name of the 21 (Twenty-One) Chairmen of the Local Governments Councils in Adamawa State in the sum of N46, 200, 000 on the 24th January, 2003, was so raised to meet development needs of the respective Local Governments Councils in Adamawa State.

From evidence on record, it can be discerned that two cheques were raised from the voucher (Exhibit Pw1B) being the sum of N46,200,000.00 earmarked for development purposes at local Government levels. From this money, two cheques were raised or issued. The first that is, cheque with No. 0875920 is in the sum of N25, 200, 000. 00 and issued on 24th January, 2003 for payment to Permanent Secretary, Local Government and Chieftaincy Affairs. The second that is, cheque No. 0875930 issued on 28th January, 2003 was addressed to Manager, Habib Nigeria bank Ltd, the payee of the sum of N21, 000, 000 (Twenty One Million naira) .
The two cheques referred to above though issued at different times and dates are nonetheless attached to the same Voucher as Exhibit PW1B, the purpose of which is to meet joint development projects at Local Councils. The two cheques were signed by the same person.

The cheques labelled as Exhibit PW7B that is, cheque No. 0875930 in the sum of N21 Million, issued on 28th January, 2003 is the same cheque attached to the voucher marked Exhibit PW1B. At the back of Exhibit PW7B is the endorsement to the effect: please issue bank draft in favour of:-AL-Akim Investment Nig. Ltd payable at Yola.

This indorsement was again signed by the same person who issued the cheque. Exhibit PW6C2 is the Statement of account of BBB Project into which Al-Akim Investment Nig. Ltd paid the sum of N21, 000, 000. 00 by cheque deposit made on 28th January, 2003 into Account No. 361/320613/1/1/0 in the name of BBB project. The value date of that cheque is given as 03/02/2003. It can be seen therefore that the money earmarked for development purposes at the Local Government Levels in Adamawa State found its way, through Al-Akim Investment Nig. Ltd into the account of BBB Project. Al-Akim Investment Nig. Ltd is the Appellant before us. It cannot therefore be suggested as the appellant or counsel seem to say, that the sum of N21, 000, 000.00 was never paid to or received by the Appellant. Indeed the Appellant did receive that payment of the sum of N21, 000, 000 hence transferred same into the account of BBB project. Again issue three is resolved against the Appellant and in favour of the 1st respondent.

…………………….F…………………….

Issue No. 4
Whether the appellant was properly convicted by the trial Court under Miscellaneous Offences Act. Cap M17 Laws of the Federation of Nigeria.

In addressing this question, learned appellant’s counsel referred us to Exhibit Pw7A to submit that the
payment made vide that exhibit was in respect of the contract he had applied for and approval given. He argued that the cheque issued vide Exhibit Pw7A was neither forged nor falsified hence the appellant cannot be found liable so far as the prosecution has not proved that ingredient of the offence under the Miscellaneous Offences Act Cap. M17. Laws of the Federation Nigeria, 2004, at Section 1(2)(b). He urged us to resolve this issue No. 4 in favour of the appellant and discharge and acquit the appellant on this account.

The 1st respondent argued per contra. The submissions made on their behalf are contained at pages 11-14, paragraphs 4.0 to 4.14 of the 1st respondents brief of argument.
Learned counsel for the 1st respondent referred us to Section 1(2) (b) of the Miscellaneous Offences Act, under which the appellant was charged and convicted to submit that the provision only requires of the 1st respondent to prove the transfer or payment was by virtue of any forged or false cheque, promissory note or other negotiable instrument. Learned counsel has also set out in his brief of argument, the elements the prosecution was required to prove to succeed in the offence alleged.

He argued that the prosecution led sufficient evidence to prove those ingredients of the offence(s) charged under counts 3 and 4 of the amended charge.
He argued that the appellant along with the 2nd respondent were charged under counts 3 and 4 of the amended charge with causing the payment of the sums of N31.5 Million through cheque No. 08/3308 dated 26th November, 2002 and N21 million through cheque No. 0875930 dated 28th January, 2003 into account No. 3613406139110 in the Guaranty Trust Bank operated by BBB Project. He argued that, the prosecution was able to establish through the testimony of Pw6 that the appellant did not do any contract job for Adamawa State Government to warrant the payment of the sum of N31.5 Million and N21 Million belonging to the State Government at the time those payments were made.
Learned counsel for the 1st respondent further referred us to the endorsement at the back side of Exhibits Pw7 IA, Habib Cheque No. 087368 for N31.5 Million and Pw7 IB, Habib cheque No. 0875930 for N21 Million on the instruction to issue drafts in favour of the appellant and submitted that these constitute forgeries so far as the appellant was not the beneficiary of the two payments covered by Exhibits Pw1A and Pw1B which he argued, are payment Vouchers.

Learned counsel for the 1st respondent defined ???false document??? to include writing in any material part either by erasure, obliteration removal or otherwise, and making any addition to the body of a genuine document or writing any other material matter. He cited the case of Moore V. Federal Republic of Nigeria (2014) 12 All FWLR (Pt. 1712) 1775.

It is submitted that the endorsement which read: pls. issue draft in favour of Al-Akim Ltd. Payable in Yola on the back side of Exhibits Pw7 IA and Pw7 IB were entries not connected with either Exhibit PwIA or PwIB that is, payment Vouchers. He cited the case of Odua vs. Federal Republic of Nigeria (2002) 5 NWLR (Pt. 76) 615.

In reference to the decision in Osondu vs. Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 483, 504, it is submitted that a document is said to be forged if the whole or part of it was made by a person with all falsity and knowledge.

It is further argued that the purpose for which Exhibit Pw7 IA and Pw7IB were raised in favour of the appellant and the subsequent transfer of the sum involved to BBB projects account by the appellant and 2nd respondent was intended to defraud the Adamawa State Government, which they did.
With regard to the second ingredient of the offence(s) charged, it is argued that the appellant along with the 2nd respondent transferred the two amounts to themselves in the first instance and subsequently transferred same to BBB project without stating during trial what job the BBB project did or executed for Adamawa State Government.

With regard to the third ingredient of the offence, learned counsel referred us to the evidence of Pw1 to the effect that N31.5 million was meant to assist INEC while N21 Million was for purchase of vaccines. He referred to Exhibit Pw1A and Pw1B as supporting the evidence of Pw1. He argued that Exhibits Pw7IA and Pw7IB were not raised for the purpose in Exhibit PwIA and PwIB but the money therein was diverted to the appellant vide the endorsement at the back of Exhibits Pw7 IA and Pw7IB. He argued and submitted that the prosecution had proved the ingredient of forgery. He referred

…………………….G…………………….

us to the case of NAF V. James (2002) 18 NWLR (Pt. 798) 295 321. It is further argued that in the instance case on appeal, like in the case of NAF V. James (supra), the purpose for which Exhibit PwIA and PwIB were raised and approved were never consummated rather Exhibits Pw7IA and Pw7 IB were used as conduits to channel the monies to the appellant. He urged us to hold that the 1st respondent proved its case against the appellant at the trial Court.

Resolution of Issue 4.
Issue No. 4 to my mind is most dominant of all issue formulated in this appeal, given the fact that the appeal to this Court is premised on the finding of guilt and the sentencing of the appellant and the question arises whether the prosecution indeed proved its case at the trial Court to warrant the conviction and sentencing of the appellant.
The appellant and the 2nd respondent were two of three persons arraigned before the Federal High Court, Yola by the Economic and Financial Crimes Commission (hereafter called EFCC) on a four count amended charge. The appellant and the 2nd respondent were charged and jointly tried on counts 3 and 4 of the 4 (four) count charge with causing the payment of the sums of N31.5 Million through Cheque No. 0873368 dated 26th November, 2002 and N21 Million through Cheque No. 0875930 dated 28th January, 2003 into Account No. 361340613910 with Guaranty Trust Bank.
Counts 3 and 4 of the amended charge speak for itself thus:-
COUNT 3. 
That you, JOHN BABANI ELIAS and AL-AKIM NIGERIA LTD on or about the 26th November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intend to defraud the Government of Adamawa State did cause the payment of the sum of N31, 500, 000: 00 vide a Habib Nigeria Bank Limited draft No. 0873368 dated 26/11/2002 into Guaranty Trust Bank Plc. Account no. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI monies meant for Adamawa State Local Governments joint Development project and thereby committed an offence punishable under Sections 1(2)(b) and 3(2) of the Miscellaneous Offences Act, Cap. M17, Laws of the Federation of Nigeria, 2004.

COUNT 4
That you, JOHN ELIAS AND AL-AKIM INVESTMENT NIGERIA LIMITED, on or about the 23rd of January, 2003 at Yola within the jurisdiction of this Honourable Court with intent to defraud the Government of Adamawa State did cause the payment of N21,000,000:00 vide a Habib Nigeria Bank Limited draft No. 0875930 dated 28/1/2003 into Guaranty Trust Bank Plc. Account No. 3613406139110 operated by BBB PROJECT in the name of MOHAMMED INUWA BASSI, monies meant for Adamawa State Local Government joint development project and thereby committed an offence punishable under Section 1(2) (b) and 3 (2) of the Miscellaneous Offences Act, Cap. M17, Laws of the Federation of Nigeria, 2004.

Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act, Cap M17, LFN, 2004 under which the appellant was tried, convicted and sentenced provide thus:
1(2) Any person who-
(b) knowingly and by means of any false representation or with intent to defraud the Federal Government, the Government of any State or any local government, causes the delivery or payment to himself or any other person of any property or money by virtue of any forged cheque, promissory note or other negotiable instrument whether in Nigeria or elsewhere, s
hall be guilty of an offence and liable on conviction to imprisonment for a term not exceeding 21 years without the option of a fine.
Wilful destruction of public property X X X3(2) Where a body corporate is convicted of an offence punishable by a term of imprisonment without the option of fine or to death under this Act, the Federal High Court may order that the body corporate be wound up and the

…………………….H…………………….

body corporate shall thereupon and without any further assurance but for such order, be wound up and all its assets forfeited to the Federal Government.

It necessarily follows therefore that the offence created by the aforementioned provisions particularly Section 1(2) consist of the elements listed below for which the prosecution is bound to establish if he must succeed in his case against the accused person, namely:-
(i) Intent to defraud the Government (in this case, Government of Adamawa State.
(ii) Cause the delivery or payment to himself (accused) or any other person of any property or money.
(iii) By virtue of any forged or false cheque promissory note or other negotiable instrument.
I am in agreement with learned counsel for the appellant that the duty on the prosecution, that is the 1st respondent in an exercise like this before the trial Court, is herculean in nature. His duty is to prove his case against the accused person by a standard of proof beyond reasonable doubt. See Section 135(1) (2) of the Evidence Act and the decisions in Owolabi Vs. State (2014) LPELR 24039 (CA); Ukwumneyi V. The State (1989) 7 SC (Pt. 1) 64, 88. It is not proof beyond shadow of doubts. See: Adebesin Vs. State (2014) LPELR-2294 (SC). Thus there must be evidence which identified the person accused with the offence and further there should be evidence that it was his act which caused the offence. Mere suspicion is not enough. That is what proof beyond reasonable doubt entails.
Now, we take a look at the evidence to see if the prosecution, the 1st respondent herein discharged the duties placed on it at the trial Court.
By the evidence of Pw6, the prosecution was able to establish the fact that the appellant did not do any contract job for Adamawa State Government for which the sum of N31.5 Million and N21, Million, was appropriated, being monies belonging to Adamawa State Government.

This evidence was never contradicted by the appellant. In fact that piece of evidence of Pw6 remain solid even under cross-examination. In addition to this is, Exhibit Pw71A, the Habib Cheque No. 087368 for the sum of N31.5 Million and Pw71B, Habib Charge No. 0875930 for the sum of N21 Million, wherein the cheques were indorsed with instruction directing that drafts should be raised in favour of the appellant.

The appellant as indicated before was not the beneficiary of the payments in Exhibit Pw1A and Pw1B. Those are payment vouchers for the monies referred in those documents. Nonetheless the sums of N31.5 Million and N21, Million were transferred to the appellant by reason of those indorsements and Exhibits Pw71A and PW71B. The fact that the appellant and the 2nd respondent upon the receipt of those monies transferred same to the account BBB Project reveal the intention on their part, to defraud the Government of Adamawa State.
In relation to the second ingredient that is, causing the delivery or payment to himself or any other person of any indorsement at the back side of Exhibits PW71A and PW71B reveal that the various sums contained in those cheques were not just transferred to the appellant but the appellant received it by virtue of Exhibit PW62 wherein the appellant transferred or deposited the sum of N21 Million into BBB Project, Account No. 361340613116 on the 8th January, 2003.
With regard to the third ingredient of the offence, the evidence of Pw1 on what the sums of N31.5 Million and N21 million was meant to serve, is instructive. See also Exhibits PW1A and PW1B.
Exhibit PW71A and PW71B were not raised for the purpose disclosed in Exhibit PW1B and PW1B. Rather those monies or cheques were paid to the appellant vide the indorsements at the back of Exhibit Pw71A and PW71B. In the case of NAF Vs. James (2002) 18 NWLR (Pt. 798) 295, 321, the Supreme Court per Onu, JSC (Rtd) held:-
the Court below failed to take cognisance of the fact that the expressed purpose of Exhibit 9A-C not exist as no finding was made on this. Fourthly, contrary to the speculative finding of the Court below, the reality of the matter is that Exhibit 9A-C were demonstrated to be false representations with the intention to defraud on the part of all the conspirators. It is irrelevant to contend as done by the respondent that because the forms were prepared by the officers whose duty it was to prepare them in the ordinary course of duty, there could be no offence committed. As each document was in itself telling a lie about itself and the lie was exposed and confirmed, thus culminating in the sharing of the

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money by the accused persons the respondent inclusive, what further proof of forgery was needed See further: Osondu Vs. Federal Republic of Nigeria (2000) 12 NWLR (Pt. 682) 483, 504 where this Court held:-
I agree with counsel for the appellant that a document is said to be forged if the whole part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim So, in relation to Exhibits Pw1A and PW1B, Exhibits PW17A and PW71B are forged documents. A document is said to be forged if the whole or part of it was made by the person with all falsity and knowledge. See further, Moore v Federal Republic of Nigeria (2014) All FWLR (Pt. 712) 1775; Odua Vs. Federal Republic of Nigeria (2002) 5 NWLR (Pt.761) 615.
It is my view that the ingredient of forgery or false cheque, promissory note or other negotiable instrument was proved or established at the trial Court against the appellant hence issue No. 4 is similarly resolved against the appellant.
Issue No. 5 
Whether the trial judge was not in error when he raised issue suo motu without giving an opportunity to the parties to be heard on same.

Learned appellant counsel in reference to the finding of Court at page 90 of the record of Judgment, he argued that the Judge having raised those questions, needed to avail the parties of the opportunity to address the Court on that point. This failure he argued, was a breach of the rule of fair hearing which breach, impacted negatively on the appellant. He cited the decision in Dalek V. Ompadec (2007) 2 SCNJ 218, 221. By this failure he argued, there was a miscarriage of Justice. He urged us to resolve Issue 5 in favour of the appellant.

Learned counsel for the 1st respondent argued to the contrary at page 14-15 in his brief of argument. He argued rightly in my view, that when a Court raises an issue not within the contemplation of the parties to the proceedings or an issue not before the Court, the Court is said to have raised the issue suo motu and as such parties should be heard before the Court takes any decision on that point. See Dalek Vs. Ompadec (supra).
Learned counsel however argued that where parties were given the opportunity to be heard, they cannot complain of breach of the principle of fair hearing.
I am in total agreement with that submission, which is a restatement of the law.
In the evidence given by Pw6, he was categorical when he said that the appellant did not execute any contract for which the sum of N21 Million was appropriated but the money was diverted for another purpose.
He was never cross-examined on that point. Evidence so elicited but which the witness was not cross-examined remain valid and admissible evidence. It is for this reason the Court below observed at page 90 of the record of Judgment as follows If that was so, how did the company do the contract job. With what funds could the 3rd Defendant (now the appellant) have executed the contract job having given all the money to campaign project That is a rhetorical question. It does not demand any further answer or address of counsel on it given the fact that evidence already on record provided the answers to the question. So, it is in that light that the observation made by trial Court and referred to above, can be understood. Such cannot be an as contended by the learned appellants counsel. Issue No. 5 thus, is resolved against them.

Issue No. 6 
Whether the Bank drafts are not necessary before the Court?

Learned counsels argument under issue No. 6 is that Exhibits PW71A and PW71B go to no issue since it has not been shown that the bank raised drafts out of those cheques submitted or deposited with it.

From the perspective of the learned counsel for the Appellant, the draft said to have been issued in the name of the appellant ought to have been produced without which, it is argued, the Court cannot make assumptions relative

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to those drafts not before the Court. He urged us to resolve Issue No. 6 in favour of the appellant.
This argument of the learned counsel for the appellant seem to over look Exhibit Pw6C1 which clearly reveal that a draft in the sum of N21 Million was deposited by Al-Akim Investment Nigeria Ltd into the Account of BBB Project on 28th January, 2003 with value date of 3rd February, 2003, hence the case of the prosecution cannot be defeated merely because he failed to tender the draft. By Exhibits Pw71A and Pw71B read together with Exhibit Pw6C, it is obvious that the appellant deposited into the BBB Project account the sum of N21 million as per the indorsement on Exhibit Pw7B. In effect, the production in evidence of the drafts related thereto is no longer necessary before the prosecution can succeed in their case. This issue is also resolved against the appellant.
All issues in this appeal having been resolved against the appellant, the appeal necessarily fails and same is dismissed. The Judgment of the Federal High Court, Yola delivered on the 4th December, 2015 in Suit or Charge No. FHC/YL/10C/2013 is affirmed.

OYEBISI FOLAYEMI OMOLEYE, J.C.A.: I had the privilege of reading in draft form the leading judgment in this appeal just delivered by my learned brother, Saidu Tanko Husaini, JCA.
I agree in toto with His Lordships line of reasoning and the conclusion reached that the appeal is completely bereft of merits. I too dismiss the appeal and affirm the judgment of the trial Court, in Suit No. FHC/YL/10C/2013, appealed against to this Court by the Appellant.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Saidu Tanko Husaini JCA. I adopt his reasoning and conclusions in the lead judgment as mine.
For the reasons contained in the lead judgment, I too dismiss the appeal and affirm the judgment of the Court below.
Appearances:
U.D Silas Esq. with him, T.U. Ideagbela, Esq.For Appellant(s)
Andrew Malgwi, Esq. with him, T.U. Danjuma and M. S. Dahiru, Esq. for 2nd RespondentFor Respondent(s)

Appearances

U.D Silas Esq. with him, T.U. Ideagbela, Esq.For Appellant

AND

Andrew Malgwi, Esq. with him, T.U. Danjuma and M. S. Dahiru, Esq. for 2nd RespondentFor Respondent

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