BRILA ENERGY LTD v. FRN (2018)
LPELR-43926(CA)
PRACTICE AREA: EVIDENCE
INTRODUCTION
Since the coming into force of the Evidence Act, 2011 in which
computer generated evidence became admissible, compliance with the
requirement for certificate of authentication, as imposed by its
section 84(4) thereof, has been one big hurdle.
According to the Act, the certificate is to, among other things,
identify the document and describe the manner in which it was
produced; give such particulars of any device involved in the
production of that document.
The present appeal examines whether the certificate has to be
tendered in evidence at all times for the relevant document(s) to
be admissible in evidence.
While delivering the leading judgment, SANKEY, J.C.A., stated
who can issue an authentication certificate. According to his
Lordship, “If an authentication certificate is relied on, it should
show on its face that it is signed by a person who, from his job
description, can confidently be expected to be in a position to
give reliable evidence about the operation of the computer.” He
went further to say “From case law, this subsection [Section
84(4)]permits even non-experts to issue such a certificate,
especially persons who, though not possessing the required
professional qualifications may have acquired some practical
knowledge and being in the position described in the subsection to
bring him within the definition of an expert.”
On whether the certificate always has to be tendered, SANKEY,
J.C.A. held that “where such certificate [certificate of
trustworthiness of the computer used in printing the documents] is
not produced, it has been held that oral evidence of a person
familiar with the operation of the computer can be given of its
reliability and functionality; and that such a person need not be a
computer expert.”
The Honourable Justice SANKEY, J.C.A went further to hold that
“There is no single approach to authentication applicable across
board. Instead, the most appropriate form of authenticating
electronic evidence will often depend on the nature of the evidence
and the circumstances of each particular case. However, such
evidence may be authenticated by direct testimony from a witness
with personal knowledge, by comparison with other authenticated
evidence or by circumstantial evidence.”
FACTS IN BRIEF
The Economic and Financial Crimes Commission (the EFCC), based
on the Petitions sent to it by the then Minister of Petroleum
Resources, Allison Madueke, and some Civil Society organisations
investigated some companies, including the Appellant, for
fraud subsidy on Premium Motor Spirit (PMS). Upon conclusion of
investigation, the Appellant (as 2nd Defendant) and Rowaye Jubril,
(the Managing Director and alter ego of the Appellant) as the 1st
Defendant were arraigned for trial on a 13 count Charge for
obtaining money by false pretences contrary to Section 1(3) of the
Advance Fee Fraud and Other Fraud Related Offences Act, 2006,
Forgery contrary to Section 467(2) (k) of the Criminal Code
Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468
of the Criminal Code Cap. C17, Laws of Lagos State. Both defendants
pleaded not guilty and the matter proceeded to trial.
The Respondent (as Prosecution) called twenty witnesses and
tendered forty-three exhibits. At the close of the Respondent’s
case, the Appellant and the 1st Defendant entered a “No Case
Submission”. The no case submission was later overruled by the
Trial Court after due consideration and the defendants were asked
to enter their defence. Rather than enter defence, the defendants
opted to rest their cases on that of the Respondent. In a well
considered judgment delivered on March 16, 2017, the trial Court
found both defendants guilty on all counts.
The 1st Defendant was accordingly sentenced to ten years
imprisonment on the 1st count and eight years imprisonment on
counts two to thirteen of the Charge, the terms of imprisonment to
run concurrently. The Appellant , on the other hand, was ordered to
refund to the Federal Government of Nigeria the sum of
N963,796,199.85k (Nine Hundred and Sixty-Three Million, Seven
Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira,
Eighty-Five Kobo), being the amount found to have been fraudulently
obtained.
The Appellant deprecated the decision of the trial Court thus,
he filed this present appeal.
ISSUE(S) FOR DETERMINATION
The following issues were considered for the resolution of this
Appeal:
(i) Whether the Learned trial Judge rightly admitted
in evidence and relied on the internet print out copy of Lloyds
List of Intelligence Report (Exhibit P23-25) as well as the hearsay
testimony of PW9 who tendered same in evidence for the purpose of
establishing the truth of prosecution’s allegations that the mother
vessel, M/T LIMAR was not at the Port of loading and point of
transshipment at the relevant times. (Grounds 3, 4 &
5)
(ii) Whether the learned trial Judge rightly or
wrongly admitted in evidence and attributed probative value
to Exhibit P41 series which were documents made in Greece in
Greek language and purportedly translated to English language in
order to establish the truth of the allegation of non importation
and non STS transfer of the PMS from the mother vessel MT Overseas
Limar to 1st daughter vessel Delphina. (Grounds 16, 17, 19 &
23)
(iii) Whether the learned trial Judge was right or
wrong to have relied on the hearsay evidence of PW17 and Exhibit P7
to hold that the prosecution proved beyond reasonable doubt the
offence of forgeries of 2 (two) Saybolt Concremat documents (pages
25 & 29 of Exhibit P1) against the Appellant (Grounds 10, 20
& 21)
(iv) Whether the learned trial Judge was right when
she held that the prosecution proved beyond reasonable doubt the
offence of forgeries of 4 Inspectorate Marine Services documents
(Exhibit P8) against Appellant. (Ground 11)
(v) Whether the learned trial Judge was right when
she held that the prosecution proved beyond reasonable doubt the
offence of uttering 2 (two) Saybot Concremat documents (pages
26 & 29 of Exhibit P1) and 4 (four) Inspectorate Marine
Services documents (Exhibit P8) against the Appellant. (Ground
12)
(vi) Whether the learned trial Judge rightly or
wrongly held that the prosecution proved beyond reasonable doubt
the offence of Advance Fee Fraud of N963, 796, 119.85 received as
fuel subsidy by false pretence. (Grounds 7, 8, 9, 13, 14, 22 &
24)
(vii) Whether the material and unresolved
contradictions in the evidence of the prosecution witnesses (PWs)
were sufficient to cast doubt on the guilt of the Appellant.
(Grounds 1, 2 & 15)
(viii) Whether the learned trial Judge rightly or
wrongly admitted and acted on the irrelevant and highly prejudicial
evidence of the Appellant’s Managing Director’s reputation/business
relationship as Director and Shareholder of Interral Limited and
Ports and Marine Cargo. (Ground 25)
(ix) Whether the failure of the learned trial Judge
to consider the evidence of prosecution witnesses which is in
favour of the innocence of the Appellant and cast doubt on the
prosecution’s case because it elected not to testify in its
defence, amounts to a breach of its fundamental right to fair
hearing, and has occasioned a miscarriage of justice. (Ground
6)
(x) Whether in the circumstances of this case, the
learned trial Judge was right to have ordered the Appellant to make
restitution of the entire sum of N963, 796, 119.85 received as fuel
subsidy. (Ground 18).
HELD
On the whole, having resolved all ten issues against the
Appellant, the Appeal was said to be without merit and same was
dismissed accordingly. The Judgment of the High Court of Justice,
Lagos State, inclusive of the order for restitution of the sum of
N963, 796, 19.85k (Nine Hundred and Sixty Three Million, Seven
Hundred and Ninety-Six Thousand, One Hundred and Ninety-Nine Naira,
Eighty-Five Kobo) to the Federal Government of Nigeria, in Charge
No. ID/196c/3012 between The Federal Republic of Nigeria V Rowaye
Jubril & Brila Energy Limited, delivered on 16th March, 2017 by
Okunnu, J. was affirmed.
RATIO DECIDENDI
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS:
Conditions for admissibility of computer generated
documents
“It is also settled law that electronic evidence can be made in
the ordinary course of business of establishments like banks and
corporate bodies. The condition for the admissibility of this kind
of evidence is that the maker must have made the statement
contemporaneously with the transaction recorded or so soon
thereafter that the Court considers it likely that the transaction
was at the time still fresh in his memory. This is also the import
of Section 41 of the Evidence Act.
The Appellant has also sought to impugn the integrity of Exhibit
7 contending that the Respondent failed to tender the certificate
of trustworthiness of the computer used in printing the documents
in compliance with Section 84(4) of the Evidence Act. However,
where such certificate is not produced, it has been held that oral
evidence of a person familiar with the operation of the computer
can be given of its reliability and functionality; and that such a
person need not be a computer expert. See R V Shephard (1993) AC
380, where Lord Griffiths on this issue held –
“… therefore answer the certified question by saying that
Section 69(1) of the Police Criminal Evidence Act 1984 can be
satisfied by the oral evidence of a person familiar with the
operation of the computer who can give evidence of its reliability
and such person need not be a Computer expert.”
Section 69(1) of the Police Criminal Evidence Act 1984 in the UK
is the equivalent of Section of 84 of the Evidence Act, 2011. This
condition was satisfied by the testimony of PW17 on oath when he
explained the process of how he scanned the emails forwarding the
report to him from Saybolt Concremat Brazil, printed them in colour
and sent them to EFCC. I therefore have no reason to interfere with
the finding of the trial Court in this regard.”Per SANKEY, J.C.A.
(Pp. 62-64, Paras. E-B)
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS:
Conditions for admissibility of computer generated
documents
“It is indeed the law as provided under Section 83 of the
Evidence Act, 2011 that in a proceeding where direct oral evidence
of a fact would be admissible, any statement made by a person in a
document to establish that fact shall only be admissible as
evidence of that fact if the conditions contained in paragraphs (a)
to (d) thereof are satisfied. Section 84(1) goes on to be more
specific on the nature of evidence when it provides inter alia as
follows –
“84(1) In any proceeding, a statement contained in a document
produced by a computer shall be admissible as evidence of any fact
stated in it of which direct oral evidence would be admissible, if
it is shown that the conditions in Subsection (2) of this section
are satisfied in relation to the statement and the computer in
question.”
By the opening chapeau of this provision, computer generated
documents are caught by the admissibility requirements of this
provision. The relevant phrase here is “a statement contained in a
document produced by a computer.” The draftsman did not leave the
meaning of the word “computer” to conjecture. In Section 258(1),
the Act defines “computer”. to mean “any device for storing and
processing information, and any reference to information being
derived from other information is a reference to its being derived
from it by calculation, comparison or any other process”. What this
means is the Exhibits P23-25, being computer-generated documents,
could only be admissible in evidence upon compliance with the
requirements of Section 84 (supra), and not Section 83 (supra).
Therefore, the learned trial Judge was right when she relied on the
legal maxim – enumeratio unius est exclusio alterius, which means,
the specification of one thing is an exclusion of the other. Thus,
I also take the view that when it comes to computer-generated
documents, the provision of Section 83 has been excluded.
By Section 84(2) of the Evidence Act, 2011, there are four
conditions which are required to be satisfied in relation to the
document and computer in question –
- That the statement sought to be tendered was produced by the
computer during a period when it was in regular use; - That during the period of regular use, information of the kind
contained in the document or statement was supplied to the
computer; - That the computer was operating properly during that period of
regular use; and - That the information contained in the statement was supplied to
the computer in the ordinary course of its normal use.
There is abundant evidence on record to show that PW9, in
tendering Exhibits P23 to P25, satisfied these conditions. PW9
testified extensively before tendering the documents and laid the
necessary foundation for their admission as e-documents under
Section 84 of the Act. Thus, the requisite evidence in relation to
the use of the computer was given and they sufficiently established
the conditions set out in Section 84(2) of the Act.
Another condition for the admissibility of electronic evidence
under Section 84(4) of the Act is the production of an
authentication/trustworthiness certificate of the computer used in
producing the documents. From case law, this subsection permits
even non-experts to issue such a certificate, especially persons
who, though not possessing the required professional qualifications
may have acquired some practical knowledge and being in the
position described in the subsection to bring him within the
definition of an expert by the expanded definition of an expert in
Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (Pt. 1377) 374.
Whether an expert is competent in his field is a matter for the
Court to decide, applying the credibility test after hearing his
oral testimony.
Section 84, which is similar to Section 69 of UK PACE 1984, does
not require the prosecution to show that the statement contained in
the document is likely to be true.
Whether it is likely to be true or not is a question of weight
for the Court to decide. Instead, all it requires as a condition
for the admissibility of a computer-generated statement/document is
positive evidence that the computer processed, stored and
reproduced whatever information it received. It is majorly
concerned with the way in which the computer has dealt with the
information to generate the statement which is being tendered as
evidence of a fact which it states. See DPP V Mckeown (1997) 1 All
ER 737.
If an authentication certificate is relied on, it should show on
its face that it is signed by a person who, from his job
description, can confidently be expected to be in a position to
give reliable evidence about the operation of the computer. The
nature of the evidence to discharge the burden of showing that
there has been no improper use of the computer and that it was
operating properly will inevitably vary from case to case. See R V
Shephard (1993) 2 WLR 102. There is no single approach to
authentication applicable across board. Instead, the most
appropriate form of authenticating electronic evidence will often
depend on the nature of the evidence and the circumstances of each
particular case. However, such evidence may be authenticated by
direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence or by circumstantial
evidence.
In the instant case, PW9 tendered Exhibit P22 authenticating the
computer she used in accessing the information on Lloyds’
Intelligence List Database and producing the print-outs of the
Lloyds Intelligence List Report in the documents admitted in
evidence as Exhibits P23-P25.
On the submission of learned Senior Counsel that Exhibit P22 did
not satisfy the requirement on the certification of the
computer/device in Section 84(2) of the Evidence Act, I beg to
differ. From the comprehensive evidence given by PW9, which has
already been well stated by the Respondent in his Brief, as well as
in the Judgment of the trial Court, Exhibit 22 is a certificate
authenticating the computer that was used to down-load and print
out the information on the said database. For ease of reference,
Exhibit 22 attested inter alia as follows –
“I Olanubi Tolulola of the Economic and Financial Crimes
Commission, attached to the Special Team on Petroleum Subsidy
(STPS)… to the best of my knowledge and belief state as
follows:
- That Lloyds List Intelligence Vessel Movement reports marked as
1-6 was assessed from Lloyds website www.lloydslistintelligence.com between the 5th and
11th of June, 2012 and downloaded into an HP Laptop computer. The
computer is regularly used to store and process information related
to investigation activities of the Commission. - Over the period when the document was produced, information of
this kind was regularly supplied to the computer in the ordinary
course of investigation activities and the said computer was
operating properly over that period of time. - I attest to the information produced as being a true and
accurate record of what was produced by the said computer.”
I am of the opinion that this certification is in tandem with
the production processes approved by the Supreme Court in Dickson V
Sylva (2017) 8 NWLR (Pt. 1567) 167, wherein Galadima, JSC held
inter alia thus –
“From the above provisions, it is crystal clear that it is only
with respect to the computer that “produces” the document, in this
case the DVD (Exhibit P42B) that ought to be certified.”
In addition, under Section 41 of the Evidence Act, 2011, there
is an exception to the hearsay rule that relates to electronic
evidence when it is a statement made in the ordinary course of
business. Also, under the business record exception to the hearsay
rule, Section 51 of the Act provides that electronic records
regularly kept in the course of business are admissible whenever
they refer to a matter before the Court. For ease of reference, the
provisions are set out hereunder –
“41. A statement is admissible when made by a person in the
ordinary course of business, and in particular when it consists of
any entry or memorandum made by him in books, electronic device
kept in the ordinary course of business, or in the discharge of a
professional duty, or of an acknowledgment written or signed by him
of the receipt of money, goods, securities or property of any kind,
or of a document used in commerce written or signed-by him, or of
the date of a letter or other document usually dated, written or
signed by him.”
“51, Entries in books of accounts or electronic records
regularly kept in the course of business are admissible whenever
they refer to a matter into which the Court has to inquire, but
such statements shall not alone be sufficient evidence to charge
any person with liability.”
It must however be noted that for a document to be admitted as a
business record, there must be some evidence of a business duty to
make and regularly maintain a record of that type. Such evidence
was also adduced through the PW9.
It has also been canvassed by the Appellant that the PW9 was not
the maker of the said document referred to as Lloyds’ List which
was tendered through her. Again, from the totality of the evidence
of the PW9, it is evident that the Lloyds’ List Intelligence report
is a business record about the movement of ships worldwide kept by
Lloyds and made available to business organizations or individuals
who subscribe to it by the payment of prescribed fees. It is
therefore admissible under Sections 41 and 51 of the Evidence Act,
2011. Consequently, such a record is an exception to the hearsay
rule.
It is also the contention of the Appellant that the said Lloyds’
List is inadmissible in evidence because the PW9 had no personal
knowledge of the facts contained in the print-out as she was not
the person who uploaded the information on the website on the
movement of M/T Overseas Limar, not being an employee and/or
officer of Lloyds organization. However, the Lloyds’ Intelligence
List, being a business record which is also computer-generated, it
is not necessary that it should be tendered through the maker. See
Abubakar V Chuks (2007) 18 NWLR (Pt. 1066) 386; Obembe V Ekene
(2001) 10 NWLR (Pt.722) 677; & Torti V Ukpabi (1984) 1 SC
370.
Thus, I agree with the learned trial Judge that the Lloyds’
Intelligence List report falls within the category of a business
record made in the ordinary course of business of the Lloyds’
organization, and that Exhibit 22 (the certificate of
trustworthiness of the computer used by PW9 in producing the
Lloyd’s Intelligence report satisfied the requirements in Section
84(2) and (4) of the Evidence Act.”Per SANKEY, J.C.A. (Pp. 20-29,
Paras. A-B)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF FORGERY:
Whether a person must be shown to have personally forged a document
before he can be convicted for the offence of forgery
“It has also been argued that no evidence was adduced to prove
that the Appellant forged the documents and that the signatories of
the documents were also not produced. The law is that where a
document was used as an intermediate step in the scheme of fraud in
which the accused is involved, if it shown that such a document,
was false and was presented or uttered by an accused person in
order to gain an advantage, an irresistible inference exists that
either the accused forged the document with his own hand or
procured someone to commit the forgery. It is therefore immaterial
who actually forged a document so long as an accused person is a
party to the forgery. In Agwuna V AG Federation (1995) 5 NWLR
(Pt.396) 418, the Supreme Court per Iguh, JSC held as follows –
“It is certainly not the law that it is only the person who
manually writes or signs a forged document that may be convicted
for forgery of the document. The position of the law is that all
persons who are, participles criminis whether as principals in the
first degree or as accessories before of after the fact to a crime
are guilty of the offence and may be charged and convicted with
[the] actual commission of the crime.”
(Emphasis supplied)
See also on this Osondu V FRN (2000) 12 NWLR (Pt. 682) 483;
& Hassan V Queen (1959) SCNR 520 at 522.”Per SANKEY, J.C.A.
(Pp. 76-78, Paras. F-A)
OTHER JUDGMENTS FROM THE COURT
NNAMELE & ORS v. NJOKU & ORS (2018)
LPELR-43987(CA)
- ACTION – LOCUS STANDI: Meaning of locus standi; what
the court considers in determining whether a plaintiff has locus
standi
“Locus standi was one of the issues reserved to be tried in the
case as suggested by 9th and 10th Respondents. It was to be
resolved at the trial. Locus standi simply denotes the legal
standing or capacity of a person to initiate an action in Court to
enforce/defend a right or obligation. It is automatically invoked
upon locating right or sufficient interest in the subject matter of
the litigation. In the case of Ojukwu Vs Ojukwu (2008) LPELR – 2401
SC, the Supreme Court held:
“Going by settled judicial authorities, the term locus standi
denotes legal capacity to institute proceeding in a Court of Law.
The fundamental aspect of locus standi is that it focuses on the
party seeking to get his complaint laid before the Court.”See also
Adefulu Vs Oyesile (1989) LPELR – 91 (SC).
And in determining locus standi, the Court must be guided by the
Constitutional provisions of Section 6(6)(a) (b) of the 1999
Constitution of the Federal Republic of Nigeria, as amended, as to
the judicial powers of the Court to hear and determine disputes
between persons or between governments or authorities and any
person or body relating to rights and obligations. See Thomas &
Ors Vs Olufosoye (1986) 1 NWLR (Pt.18) 669; (1986) LPELR – 3237 SC.
And, in determining whether a person has locus standi to sue, as
the parties agreed in this appeal, the Court is bound to look at
the claims of the Plaintiff to locate his power/right to sue. See
Odeneye Vs Efunuga (1990) NWLR (Pt.164) 618; (1990) LPELR – 2208
(SC); Disu Vs Ajilowura (2006) 14 NWLR (Pt.1000) 783; (2006) LPELR
– 955 (SC).”Per MBABA, J.C.A. (Pp. 24-25, Paras. D-F)
- JUDGMENT AND ORDER – ORDER OF COURT: Proper order the
court would make where the plaintiff lacks locus standi to
institute an action
“…I cannot see any of the above, or any likely vice, that can
support a claim of abuse of the Court process, in a claim wrongly
initiated by a party, who acts in the honest belief that he has a
claim to pursue in Court. Where he is adjudged to lack the
requisite locus standi to sustain the action, I think the proper
order to make, in such circumstance, is to strike out the Suit, not
dismissal. See Emezi Vs Osuagwu (2005) 12 NWLR (Pt. 939) 340;
Oloriode Vs Oyebi (1984) 1 SCNLR 390; Thomas Vs Olufosoye (1981) 1
NWLR (Pt.18) 669.
In the case of Bamisile Vs Osasuyi (2007) (Supra) the Supreme
Court also said:
“Where the Court lacks jurisdiction, the proper order to make is
an order of striking out. A dismissal given without hearing the
merits of the case is in effect an order of striking out.”Per
MBABA, J.C.A. (Pp. 37-38, Paras. D-B)
- JUDGMENT AND ORDER – AWARD OF COST: Principles of law
as regards award of cost
“The Issue of award of costs of N200,000.00 and N100,000.00, to
the 1st Respondent and 2nd to 8th Respondents, respectively, need
not be discussed in full any longer, as the same would amount to
academic, exercise, having held that the decision, that led to the
imposition of those costs, was unlawful and wrong. The award of
those costs was therefore wrongful and in fact excessive.
In the case of Nwawka Vs Adikamkwu (2014) LPELR – 22927 (CA),
this Court held:
“…Award of cost, like general damages, is exclusively within the
discretion of the trial Court, but the same must be exercised
judicially and judiciously. Cost is to indemnify the successful
party, and is not meant to be as punishment.”Per MBABA, J.C.A. (Pp.
38-39, Paras. E-C)
- PRACTICE AND PROCEDURE – PRE-TRIAL CONFERENCE: Essence
of a pre-trial conference
“The essence of pre-trial is to identify and delineate the
boundaries of issues to be tried, at the hearing of the Suit and
how to approach the trial by the Court, and after agreeing on the
issues to be tried and the direction of the trial, it appears
improper, wrong and unfair, in my view, to abandon the hearing of
the case of the Plaintiff (the aggrieved) and entertain a technical
point, introduced amply by the defence, meant to truncate the
hearing of the Plaintiff’s case, and to use it to determine the
claim of the Plaintiff, without hearing him on his case! In the
case of Adegbuyi Esq. & Anor Vs Mustapha & Ors (2010) LPELR
– 3600 CA, the essence of frontloading and pre-hearing was stated –
that:
“It affords the parties an opportunity… to object to certain
documents at the earliest opportunity, to allow certain documents
and/or to concede certain facts or issues, where appropriate.”
See also Onyedebelu Vs Nwaneri & Ors (2008) LPELR – 4793
(CA), where this Court per Saulawa JCA said (particularly in
election petitions):
“It may be reiterated that the essence of a pre-hearing session
cannot be over emphasized. The process… enables both the Court and
parties to scale down the areas of dispute by consenting on the
important issues that require full investigation and trial. The
process also allows for summary disposal of matters…” See also Ali
Vs NDIC (2014) LPELR – 22422 (CA) and Ikeyi Vs Crown Realities Plc
(2010) 6 NWLR (Pt.1189) 144, where it was held that the
pre-hearing, where successful, “reduces drastically a judges
docket, thereby hopefully ensuring speedy conclusion of contested
cases.”Per MBABA, J.C.A. (Pp. 22-24, Paras. F-C)
METROPOLITAN ESTATES v. UNION BANK (2018)
LPELR-43989(CA)
- APPEAL – FORMULATION OF ISSUE(S) FOR DETERMINATION:
Whether more than one issue can be formulated from a ground of
appeal and vice versa
“I consider it expedient to resolve the appeal on the issues
formulated by the Appellant as the Respondents would appear not to
have a thorough understanding of the position of the law regarding
issues formulated for the determination of an appeal; when having
first distilled, its issue 1 from grounds 1 and 2 in the notice of
appeal, again proceeded to distill its issue 2 from ground 2 in the
notice of appeal. The position of the law in my considered view is
settled to the effect that, while it is in order that an issue for
the determination of an appeal can be formulated from one or more
grounds of appeal, it is not permissible to formulate more than an
issue from a ground of appeal.”Per LOKULO-SODIPE, J.C.A. (P. 11,
Paras. A-E)
- APPEAL – RECORD OF APPEAL: Duty of an appellant in the
compilation of record of appeal from the lower court
“The Appellant in my considered view would appear to have lost
sight of the settled position of law to the effect that whether or
not the record of appeal was compiled by him, he owed himself the
duty to ensure that all materials necessary for the determination
of his appeal are contained in the record of appeal or placed
before this Court by way of additional record where any material he
considered necessary or material for the determination of the
appeal is not included in the record. See Order 8 of the 2016 Rules
of this Court.”Per LOKULO-SODIPE, J.C.A. (Pp. 62-63, Paras.
D-A)
- EVIDENCE – PROOF: What is the best way of proving
payment of money into a bank account
“The law certainly is that the “ipsedixit” of a witness can
hardly be sufficient proof of payment made to a bank, where the
fact of the payment or sum paid is in issue.See in this regard, the
case of ISHOLA V. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR –
1547 (SC) where the Supreme Court per Iguh, JSC; said thus: –
“Having alleged the said payment of N60,000.00 or N64,000.00
plus to the respondent bank, the onus was squarely on the appellant
to establish this very material fact by admissible and credible
evidence. Payment of money into an account may be proved either by
the oral evidence of the person who actually made the payment
personally to the bank or by the production of a bank teller or
acknowledgement showing on the face of it that the bank had
received the payment. This is because a bank teller, duly stamped
with the official stamp of the bank and properly initialled by the
cashier, constitutes prima facie proof of payment of the sum of
money therein indicated and a customer after producing such a
receipt needs not
prove more unless the payment is being seriously challenged. See
Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190.”
See also the case of SALEH V. BANK OF THE NORTH LTD (2006) LPELR
– 2991(SC) where the Supreme Court per Musdapher, JSC; (as he then
was) said thus: –
“The best way of proving payment of money into a bank account is
by production of bank teller or an acknowledgment showing on the
face of it that the bank has received the payment. A bank teller
duly stamped with the official stamp of the bank and properly
initialed by the cashier, constitute prima facie proof of payment
of the sum therein indicated and a customer, after producing such a
teller or receipts needs not prove more unless payment is being
challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v.
U.S.A. (1986) 3 NWLR (Pt. 27) 188.” Per LOKULO-SODIPE, J.C.A. (Pp.
80-82, Paras. E-C)
OPARA v. MORECAB FINANCE LTD & ANOR (2018)
LPELR-43990(CA)
- APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Whether an
appellate Court can disturb a judgment not appealed
against
“It is in my considered view however apparent that the Appellant
in making some of his submissions has gone further to question the
correctness of some of the rulings or orders made by the lower
Court in proceedings in the course of the judgment appealed
against. I am of the considered view that the correctness or
otherwise of such rulings or orders do not properly arise for
resolution in this appeal as there is actually no appeal in respect
of any of such rulings or interlocutory order(s). The law is in my
considered view settled that interlocutory appeals should be
brought within a specified period after the decisions in the
proceedings are made. Also, the law is settled as to how
interlocutory appeals can be argued in a substantive appeal or
together with a substantive appeal. Against this backdrop, I simply
do not see any legal basis to make any pronouncement on the
correctness or otherwise of the committal of counsel for the
Appellant for contempt; the propriety of the procedure in recalling
DW1 suo motu by the lower Court; the correctness of the decision of
the lower Court in the rejection of documentary evidence in the
form of the Diamond Bank Plc, cheque book; and the correctness of
the exercise by the lower Court of its discretion to grant
adjournment in the case it entertained, etc. The allegation of the
breach of the Appellant’s right to fair hearing in my considered
view must be examined against the backdrop of the presumed
correctness of the various acts undertaken by the lower Court in
the case it entertained. See the case of ISEZUO V. SANNI (2013)
LPELR – 21974.(CA).
Hence, 12 facts stated above and which I consider to be very
relevant in this appeal.”Per LOKULOSODIPE, J.C.A. (Pp. 43-45,
Paras. F-D)
- CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING:
Effect of breach of right to fair hearing
“Flowing from all that has been said hereinbefore, is that the
appeal must succeed as I have found the lower Court to have
violated the Appellant’s right to fair hearing. The other issues
formulated for the determination of the appeal by the Appellant and
which go to question the correctness of the decision of the lower
Court on the merit, therefore go to nought as the proceedings and
judgment of the lower Court in the instant case, must by force of
law be declared nullities. In this regard see the cases of AFRO
CONTINENTAL (NIG) LTD V CO-OPERATIVE ASSOCIATION OF PROFESSIONALS
INC (supra) LPELR – 217(SC) and INOGHA MFA V. MFA INONGHA(2014)
LPELR – 22010 (SC).”Per LOKULO-SODIPE, J.C.A. (P. 51, Paras.
A-D)
- PRACTICE AND PROCEDURE – FINAL ADDRESS: Whether parties
to Court proceedings have Constitutional right to address the Court
before judgment is delivered in a matter and effect of breach
thereof
“The lower Court by doing this in my considered view did not
accord the giving of final addresses by parties, the primacy, or
pre-eminence, or importance that has in recent times being accorded
the same being a constitutional right. See in this regard the cases
of OYEKAN V. AKINRINWA (1996) LPELR-2871(SC);ISEZUO V. SANNI
(supra); GITTO COSTRUZIONI GENERALI NIGERIA LTD V. ETUK (2013)
LPELR – 20817 (CA); and ADEGBOYE V. SALAWU (2013) LPELR-22140(CA)
amongst many others. In the instant case, it is not obvious on the
face of the record that the lower Court averted its mind at all to
the fact that parties were constitutionally entitled to final
addresses. The said Court if it had averted its mind to this, and
actually appreciated the fact that final addresses by parties is
another stage in the hearing of a case, ought to have adjourned for
that purpose (given the fact that it proceeded to conclude the
Respondents’ case in the absence of the Appellant and his counsel)
and directed that hearing notice should issue on the Appellant. The
bottom line from all that has been said above, is that irrespective
of whether or not the lower Court remanded the Appellant’s counsel
to prison for contempt in order to intimidate him and thereby make
him lose proper grip of the Appellant’s case and or whether or not
the lower Court descended into the arena as alleged by the
Appellant, the lower Court has glaringly breached the Appellant’s
right to fair hearing having not entertained and disposed of two
pending motions (and which are thereby still live in the Court’s
case file) and by not affording the Appellant any opportunity to
deliver a final address in the case.”Per LOKULO-SODIPE, J.C.A. (Pp.
48-50, Paras. C-A)
Culled from LawPavilion
BRILA ENERGY LTD v. FRN (2018)
LPELR-43926(CA)
PRACTICE AREA: EVIDENCE
INTRODUCTION
Since the coming into force of the Evidence Act, 2011 in which
computer generated evidence became admissible, compliance with the
requirement for certificate of authentication, as imposed by its
section 84(4) thereof, has been one big hurdle.
According to the Act, the certificate is to, among other things,
identify the document and describe the manner in which it was
produced; give such particulars of any device involved in the
production of that document.
The present appeal examines whether the certificate has to be
tendered in evidence at all times for the relevant document(s) to
be admissible in evidence.
While delivering the leading judgment, SANKEY, J.C.A., stated
who can issue an authentication certificate. According to his
Lordship, “If an authentication certificate is relied on, it should
show on its face that it is signed by a person who, from his job
description, can confidently be expected to be in a position to
give reliable evidence about the operation of the computer.” He
went further to say “From case law, this subsection [Section
84(4)]permits even non-experts to issue such a certificate,
especially persons who, though not possessing the required
professional qualifications may have acquired some practical
knowledge and being in the position described in the subsection to
bring him within the definition of an expert.”
On whether the certificate always has to be tendered, SANKEY,
J.C.A. held that “where such certificate [certificate of
trustworthiness of the computer used in printing the documents] is
not produced, it has been held that oral evidence of a person
familiar with the operation of the computer can be given of its
reliability and functionality; and that such a person need not be a
computer expert.”
The Honourable Justice SANKEY, J.C.A went further to hold that
“There is no single approach to authentication applicable across
board. Instead, the most appropriate form of authenticating
electronic evidence will often depend on the nature of the evidence
and the circumstances of each particular case. However, such
evidence may be authenticated by direct testimony from a witness
with personal knowledge, by comparison with other authenticated
evidence or by circumstantial evidence.”
FACTS IN BRIEF
The Economic and Financial Crimes Commission (the EFCC), based
on the Petitions sent to it by the then Minister of Petroleum
Resources, Allison Madueke, and some Civil Society organisations
investigated some companies, including the Appellant, for
fraud subsidy on Premium Motor Spirit (PMS). Upon conclusion of
investigation, the Appellant (as 2nd Defendant) and Rowaye Jubril,
(the Managing Director and alter ego of the Appellant) as the 1st
Defendant were arraigned for trial on a 13 count Charge for
obtaining money by false pretences contrary to Section 1(3) of the
Advance Fee Fraud and Other Fraud Related Offences Act, 2006,
Forgery contrary to Section 467(2) (k) of the Criminal Code
Cap.C17, Laws of Lagos State, and Uttering contrary to Section 468
of the Criminal Code Cap. C17, Laws of Lagos State. Both defendants
pleaded not guilty and the matter proceeded to trial.
The Respondent (as Prosecution) called twenty witnesses and
tendered forty-three exhibits. At the close of the Respondent’s
case, the Appellant and the 1st Defendant entered a “No Case
Submission”. The no case submission was later overruled by the
Trial Court after due consideration and the defendants were asked
to enter their defence. Rather than enter defence, the defendants
opted to rest their cases on that of the Respondent. In a well
considered judgment delivered on March 16, 2017, the trial Court
found both defendants guilty on all counts.
The 1st Defendant was accordingly sentenced to ten years
imprisonment on the 1st count and eight years imprisonment on
counts two to thirteen of the Charge, the terms of imprisonment to
run concurrently. The Appellant , on the other hand, was ordered to
refund to the Federal Government of Nigeria the sum of
N963,796,199.85k (Nine Hundred and Sixty-Three Million, Seven
Hundred and Ninety-Six Thousand, One Hundred and Nineteen Naira,
Eighty-Five Kobo), being the amount found to have been fraudulently
obtained.
The Appellant deprecated the decision of the trial Court thus,
he filed this present appeal.
ISSUE(S) FOR DETERMINATION
The following issues were considered for the resolution of this
Appeal:
(i) Whether the Learned trial Judge rightly admitted
in evidence and relied on the internet print out copy of Lloyds
List of Intelligence Report (Exhibit P23-25) as well as the hearsay
testimony of PW9 who tendered same in evidence for the purpose of
establishing the truth of prosecution’s allegations that the mother
vessel, M/T LIMAR was not at the Port of loading and point of
transshipment at the relevant times. (Grounds 3, 4 &
5)
(ii) Whether the learned trial Judge rightly or
wrongly admitted in evidence and attributed probative value
to Exhibit P41 series which were documents made in Greece in
Greek language and purportedly translated to English language in
order to establish the truth of the allegation of non importation
and non STS transfer of the PMS from the mother vessel MT Overseas
Limar to 1st daughter vessel Delphina. (Grounds 16, 17, 19 &
23)
(iii) Whether the learned trial Judge was right or
wrong to have relied on the hearsay evidence of PW17 and Exhibit P7
to hold that the prosecution proved beyond reasonable doubt the
offence of forgeries of 2 (two) Saybolt Concremat documents (pages
25 & 29 of Exhibit P1) against the Appellant (Grounds 10, 20
& 21)
(iv) Whether the learned trial Judge was right when
she held that the prosecution proved beyond reasonable doubt the
offence of forgeries of 4 Inspectorate Marine Services documents
(Exhibit P8) against Appellant. (Ground 11)
(v) Whether the learned trial Judge was right when
she held that the prosecution proved beyond reasonable doubt the
offence of uttering 2 (two) Saybot Concremat documents (pages
26 & 29 of Exhibit P1) and 4 (four) Inspectorate Marine
Services documents (Exhibit P8) against the Appellant. (Ground
12)
(vi) Whether the learned trial Judge rightly or
wrongly held that the prosecution proved beyond reasonable doubt
the offence of Advance Fee Fraud of N963, 796, 119.85 received as
fuel subsidy by false pretence. (Grounds 7, 8, 9, 13, 14, 22 &
24)
(vii) Whether the material and unresolved
contradictions in the evidence of the prosecution witnesses (PWs)
were sufficient to cast doubt on the guilt of the Appellant.
(Grounds 1, 2 & 15)
(viii) Whether the learned trial Judge rightly or
wrongly admitted and acted on the irrelevant and highly prejudicial
evidence of the Appellant’s Managing Director’s reputation/business
relationship as Director and Shareholder of Interral Limited and
Ports and Marine Cargo. (Ground 25)
(ix) Whether the failure of the learned trial Judge
to consider the evidence of prosecution witnesses which is in
favour of the innocence of the Appellant and cast doubt on the
prosecution’s case because it elected not to testify in its
defence, amounts to a breach of its fundamental right to fair
hearing, and has occasioned a miscarriage of justice. (Ground
6)
(x) Whether in the circumstances of this case, the
learned trial Judge was right to have ordered the Appellant to make
restitution of the entire sum of N963, 796, 119.85 received as fuel
subsidy. (Ground 18).
HELD
On the whole, having resolved all ten issues against the
Appellant, the Appeal was said to be without merit and same was
dismissed accordingly. The Judgment of the High Court of Justice,
Lagos State, inclusive of the order for restitution of the sum of
N963, 796, 19.85k (Nine Hundred and Sixty Three Million, Seven
Hundred and Ninety-Six Thousand, One Hundred and Ninety-Nine Naira,
Eighty-Five Kobo) to the Federal Government of Nigeria, in Charge
No. ID/196c/3012 between The Federal Republic of Nigeria V Rowaye
Jubril & Brila Energy Limited, delivered on 16th March, 2017 by
Okunnu, J. was affirmed.
RATIO DECIDENDI
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS:
Conditions for admissibility of computer generated
documents
“It is also settled law that electronic evidence can be made in
the ordinary course of business of establishments like banks and
corporate bodies. The condition for the admissibility of this kind
of evidence is that the maker must have made the statement
contemporaneously with the transaction recorded or so soon
thereafter that the Court considers it likely that the transaction
was at the time still fresh in his memory. This is also the import
of Section 41 of the Evidence Act.
The Appellant has also sought to impugn the integrity of Exhibit
7 contending that the Respondent failed to tender the certificate
of trustworthiness of the computer used in printing the documents
in compliance with Section 84(4) of the Evidence Act. However,
where such certificate is not produced, it has been held that oral
evidence of a person familiar with the operation of the computer
can be given of its reliability and functionality; and that such a
person need not be a computer expert. See R V Shephard (1993) AC
380, where Lord Griffiths on this issue held –
“… therefore answer the certified question by saying that
Section 69(1) of the Police Criminal Evidence Act 1984 can be
satisfied by the oral evidence of a person familiar with the
operation of the computer who can give evidence of its reliability
and such person need not be a Computer expert.”
Section 69(1) of the Police Criminal Evidence Act 1984 in the UK
is the equivalent of Section of 84 of the Evidence Act, 2011. This
condition was satisfied by the testimony of PW17 on oath when he
explained the process of how he scanned the emails forwarding the
report to him from Saybolt Concremat Brazil, printed them in colour
and sent them to EFCC. I therefore have no reason to interfere with
the finding of the trial Court in this regard.”Per SANKEY, J.C.A.
(Pp. 62-64, Paras. E-B)
- EVIDENCE – ADMISSIBILITY OF ELECTRONIC DOCUMENTS:
Conditions for admissibility of computer generated
documents
“It is indeed the law as provided under Section 83 of the
Evidence Act, 2011 that in a proceeding where direct oral evidence
of a fact would be admissible, any statement made by a person in a
document to establish that fact shall only be admissible as
evidence of that fact if the conditions contained in paragraphs (a)
to (d) thereof are satisfied. Section 84(1) goes on to be more
specific on the nature of evidence when it provides inter alia as
follows –
“84(1) In any proceeding, a statement contained in a document
produced by a computer shall be admissible as evidence of any fact
stated in it of which direct oral evidence would be admissible, if
it is shown that the conditions in Subsection (2) of this section
are satisfied in relation to the statement and the computer in
question.”
By the opening chapeau of this provision, computer generated
documents are caught by the admissibility requirements of this
provision. The relevant phrase here is “a statement contained in a
document produced by a computer.” The draftsman did not leave the
meaning of the word “computer” to conjecture. In Section 258(1),
the Act defines “computer”. to mean “any device for storing and
processing information, and any reference to information being
derived from other information is a reference to its being derived
from it by calculation, comparison or any other process”. What this
means is the Exhibits P23-25, being computer-generated documents,
could only be admissible in evidence upon compliance with the
requirements of Section 84 (supra), and not Section 83 (supra).
Therefore, the learned trial Judge was right when she relied on the
legal maxim – enumeratio unius est exclusio alterius, which means,
the specification of one thing is an exclusion of the other. Thus,
I also take the view that when it comes to computer-generated
documents, the provision of Section 83 has been excluded.
By Section 84(2) of the Evidence Act, 2011, there are four
conditions which are required to be satisfied in relation to the
document and computer in question –
- That the statement sought to be tendered was produced by the
computer during a period when it was in regular use; - That during the period of regular use, information of the kind
contained in the document or statement was supplied to the
computer; - That the computer was operating properly during that period of
regular use; and - That the information contained in the statement was supplied to
the computer in the ordinary course of its normal use.
There is abundant evidence on record to show that PW9, in
tendering Exhibits P23 to P25, satisfied these conditions. PW9
testified extensively before tendering the documents and laid the
necessary foundation for their admission as e-documents under
Section 84 of the Act. Thus, the requisite evidence in relation to
the use of the computer was given and they sufficiently established
the conditions set out in Section 84(2) of the Act.
Another condition for the admissibility of electronic evidence
under Section 84(4) of the Act is the production of an
authentication/trustworthiness certificate of the computer used in
producing the documents. From case law, this subsection permits
even non-experts to issue such a certificate, especially persons
who, though not possessing the required professional qualifications
may have acquired some practical knowledge and being in the
position described in the subsection to bring him within the
definition of an expert by the expanded definition of an expert in
Oando Nig. Plc V Adijere W/A Ltd (2013) 5 NWLR (Pt. 1377) 374.
Whether an expert is competent in his field is a matter for the
Court to decide, applying the credibility test after hearing his
oral testimony.
Section 84, which is similar to Section 69 of UK PACE 1984, does
not require the prosecution to show that the statement contained in
the document is likely to be true.
Whether it is likely to be true or not is a question of weight
for the Court to decide. Instead, all it requires as a condition
for the admissibility of a computer-generated statement/document is
positive evidence that the computer processed, stored and
reproduced whatever information it received. It is majorly
concerned with the way in which the computer has dealt with the
information to generate the statement which is being tendered as
evidence of a fact which it states. See DPP V Mckeown (1997) 1 All
ER 737.
If an authentication certificate is relied on, it should show on
its face that it is signed by a person who, from his job
description, can confidently be expected to be in a position to
give reliable evidence about the operation of the computer. The
nature of the evidence to discharge the burden of showing that
there has been no improper use of the computer and that it was
operating properly will inevitably vary from case to case. See R V
Shephard (1993) 2 WLR 102. There is no single approach to
authentication applicable across board. Instead, the most
appropriate form of authenticating electronic evidence will often
depend on the nature of the evidence and the circumstances of each
particular case. However, such evidence may be authenticated by
direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence or by circumstantial
evidence.
In the instant case, PW9 tendered Exhibit P22 authenticating the
computer she used in accessing the information on Lloyds’
Intelligence List Database and producing the print-outs of the
Lloyds Intelligence List Report in the documents admitted in
evidence as Exhibits P23-P25.
On the submission of learned Senior Counsel that Exhibit P22 did
not satisfy the requirement on the certification of the
computer/device in Section 84(2) of the Evidence Act, I beg to
differ. From the comprehensive evidence given by PW9, which has
already been well stated by the Respondent in his Brief, as well as
in the Judgment of the trial Court, Exhibit 22 is a certificate
authenticating the computer that was used to down-load and print
out the information on the said database. For ease of reference,
Exhibit 22 attested inter alia as follows –
“I Olanubi Tolulola of the Economic and Financial Crimes
Commission, attached to the Special Team on Petroleum Subsidy
(STPS)… to the best of my knowledge and belief state as
follows:
- That Lloyds List Intelligence Vessel Movement reports marked as
1-6 was assessed from Lloyds website www.lloydslistintelligence.com between the 5th and
11th of June, 2012 and downloaded into an HP Laptop computer. The
computer is regularly used to store and process information related
to investigation activities of the Commission. - Over the period when the document was produced, information of
this kind was regularly supplied to the computer in the ordinary
course of investigation activities and the said computer was
operating properly over that period of time. - I attest to the information produced as being a true and
accurate record of what was produced by the said computer.”
I am of the opinion that this certification is in tandem with
the production processes approved by the Supreme Court in Dickson V
Sylva (2017) 8 NWLR (Pt. 1567) 167, wherein Galadima, JSC held
inter alia thus –
“From the above provisions, it is crystal clear that it is only
with respect to the computer that “produces” the document, in this
case the DVD (Exhibit P42B) that ought to be certified.”
In addition, under Section 41 of the Evidence Act, 2011, there
is an exception to the hearsay rule that relates to electronic
evidence when it is a statement made in the ordinary course of
business. Also, under the business record exception to the hearsay
rule, Section 51 of the Act provides that electronic records
regularly kept in the course of business are admissible whenever
they refer to a matter before the Court. For ease of reference, the
provisions are set out hereunder –
“41. A statement is admissible when made by a person in the
ordinary course of business, and in particular when it consists of
any entry or memorandum made by him in books, electronic device
kept in the ordinary course of business, or in the discharge of a
professional duty, or of an acknowledgment written or signed by him
of the receipt of money, goods, securities or property of any kind,
or of a document used in commerce written or signed-by him, or of
the date of a letter or other document usually dated, written or
signed by him.”
“51, Entries in books of accounts or electronic records
regularly kept in the course of business are admissible whenever
they refer to a matter into which the Court has to inquire, but
such statements shall not alone be sufficient evidence to charge
any person with liability.”
It must however be noted that for a document to be admitted as a
business record, there must be some evidence of a business duty to
make and regularly maintain a record of that type. Such evidence
was also adduced through the PW9.
It has also been canvassed by the Appellant that the PW9 was not
the maker of the said document referred to as Lloyds’ List which
was tendered through her. Again, from the totality of the evidence
of the PW9, it is evident that the Lloyds’ List Intelligence report
is a business record about the movement of ships worldwide kept by
Lloyds and made available to business organizations or individuals
who subscribe to it by the payment of prescribed fees. It is
therefore admissible under Sections 41 and 51 of the Evidence Act,
2011. Consequently, such a record is an exception to the hearsay
rule.
It is also the contention of the Appellant that the said Lloyds’
List is inadmissible in evidence because the PW9 had no personal
knowledge of the facts contained in the print-out as she was not
the person who uploaded the information on the website on the
movement of M/T Overseas Limar, not being an employee and/or
officer of Lloyds organization. However, the Lloyds’ Intelligence
List, being a business record which is also computer-generated, it
is not necessary that it should be tendered through the maker. See
Abubakar V Chuks (2007) 18 NWLR (Pt. 1066) 386; Obembe V Ekene
(2001) 10 NWLR (Pt.722) 677; & Torti V Ukpabi (1984) 1 SC
370.
Thus, I agree with the learned trial Judge that the Lloyds’
Intelligence List report falls within the category of a business
record made in the ordinary course of business of the Lloyds’
organization, and that Exhibit 22 (the certificate of
trustworthiness of the computer used by PW9 in producing the
Lloyd’s Intelligence report satisfied the requirements in Section
84(2) and (4) of the Evidence Act.”Per SANKEY, J.C.A. (Pp. 20-29,
Paras. A-B)
- CRIMINAL LAW AND PROCEDURE – OFFENCE OF FORGERY:
Whether a person must be shown to have personally forged a document
before he can be convicted for the offence of forgery
“It has also been argued that no evidence was adduced to prove
that the Appellant forged the documents and that the signatories of
the documents were also not produced. The law is that where a
document was used as an intermediate step in the scheme of fraud in
which the accused is involved, if it shown that such a document,
was false and was presented or uttered by an accused person in
order to gain an advantage, an irresistible inference exists that
either the accused forged the document with his own hand or
procured someone to commit the forgery. It is therefore immaterial
who actually forged a document so long as an accused person is a
party to the forgery. In Agwuna V AG Federation (1995) 5 NWLR
(Pt.396) 418, the Supreme Court per Iguh, JSC held as follows –
“It is certainly not the law that it is only the person who
manually writes or signs a forged document that may be convicted
for forgery of the document. The position of the law is that all
persons who are, participles criminis whether as principals in the
first degree or as accessories before of after the fact to a crime
are guilty of the offence and may be charged and convicted with
[the] actual commission of the crime.”
(Emphasis supplied)
See also on this Osondu V FRN (2000) 12 NWLR (Pt. 682) 483;
& Hassan V Queen (1959) SCNR 520 at 522.”Per SANKEY, J.C.A.
(Pp. 76-78, Paras. F-A)
OTHER JUDGMENTS FROM THE COURT
NNAMELE & ORS v. NJOKU & ORS (2018)
LPELR-43987(CA)
- ACTION – LOCUS STANDI: Meaning of locus standi; what
the court considers in determining whether a plaintiff has locus
standi
“Locus standi was one of the issues reserved to be tried in the
case as suggested by 9th and 10th Respondents. It was to be
resolved at the trial. Locus standi simply denotes the legal
standing or capacity of a person to initiate an action in Court to
enforce/defend a right or obligation. It is automatically invoked
upon locating right or sufficient interest in the subject matter of
the litigation. In the case of Ojukwu Vs Ojukwu (2008) LPELR – 2401
SC, the Supreme Court held:
“Going by settled judicial authorities, the term locus standi
denotes legal capacity to institute proceeding in a Court of Law.
The fundamental aspect of locus standi is that it focuses on the
party seeking to get his complaint laid before the Court.”See also
Adefulu Vs Oyesile (1989) LPELR – 91 (SC).
And in determining locus standi, the Court must be guided by the
Constitutional provisions of Section 6(6)(a) (b) of the 1999
Constitution of the Federal Republic of Nigeria, as amended, as to
the judicial powers of the Court to hear and determine disputes
between persons or between governments or authorities and any
person or body relating to rights and obligations. See Thomas &
Ors Vs Olufosoye (1986) 1 NWLR (Pt.18) 669; (1986) LPELR – 3237 SC.
And, in determining whether a person has locus standi to sue, as
the parties agreed in this appeal, the Court is bound to look at
the claims of the Plaintiff to locate his power/right to sue. See
Odeneye Vs Efunuga (1990) NWLR (Pt.164) 618; (1990) LPELR – 2208
(SC); Disu Vs Ajilowura (2006) 14 NWLR (Pt.1000) 783; (2006) LPELR
– 955 (SC).”Per MBABA, J.C.A. (Pp. 24-25, Paras. D-F)
- JUDGMENT AND ORDER – ORDER OF COURT: Proper order the
court would make where the plaintiff lacks locus standi to
institute an action
“…I cannot see any of the above, or any likely vice, that can
support a claim of abuse of the Court process, in a claim wrongly
initiated by a party, who acts in the honest belief that he has a
claim to pursue in Court. Where he is adjudged to lack the
requisite locus standi to sustain the action, I think the proper
order to make, in such circumstance, is to strike out the Suit, not
dismissal. See Emezi Vs Osuagwu (2005) 12 NWLR (Pt. 939) 340;
Oloriode Vs Oyebi (1984) 1 SCNLR 390; Thomas Vs Olufosoye (1981) 1
NWLR (Pt.18) 669.
In the case of Bamisile Vs Osasuyi (2007) (Supra) the Supreme
Court also said:
“Where the Court lacks jurisdiction, the proper order to make is
an order of striking out. A dismissal given without hearing the
merits of the case is in effect an order of striking out.”Per
MBABA, J.C.A. (Pp. 37-38, Paras. D-B)
- JUDGMENT AND ORDER – AWARD OF COST: Principles of law
as regards award of cost
“The Issue of award of costs of N200,000.00 and N100,000.00, to
the 1st Respondent and 2nd to 8th Respondents, respectively, need
not be discussed in full any longer, as the same would amount to
academic, exercise, having held that the decision, that led to the
imposition of those costs, was unlawful and wrong. The award of
those costs was therefore wrongful and in fact excessive.
In the case of Nwawka Vs Adikamkwu (2014) LPELR – 22927 (CA),
this Court held:
“…Award of cost, like general damages, is exclusively within the
discretion of the trial Court, but the same must be exercised
judicially and judiciously. Cost is to indemnify the successful
party, and is not meant to be as punishment.”Per MBABA, J.C.A. (Pp.
38-39, Paras. E-C)
- PRACTICE AND PROCEDURE – PRE-TRIAL CONFERENCE: Essence
of a pre-trial conference
“The essence of pre-trial is to identify and delineate the
boundaries of issues to be tried, at the hearing of the Suit and
how to approach the trial by the Court, and after agreeing on the
issues to be tried and the direction of the trial, it appears
improper, wrong and unfair, in my view, to abandon the hearing of
the case of the Plaintiff (the aggrieved) and entertain a technical
point, introduced amply by the defence, meant to truncate the
hearing of the Plaintiff’s case, and to use it to determine the
claim of the Plaintiff, without hearing him on his case! In the
case of Adegbuyi Esq. & Anor Vs Mustapha & Ors (2010) LPELR
– 3600 CA, the essence of frontloading and pre-hearing was stated –
that:
“It affords the parties an opportunity… to object to certain
documents at the earliest opportunity, to allow certain documents
and/or to concede certain facts or issues, where appropriate.”
See also Onyedebelu Vs Nwaneri & Ors (2008) LPELR – 4793
(CA), where this Court per Saulawa JCA said (particularly in
election petitions):
“It may be reiterated that the essence of a pre-hearing session
cannot be over emphasized. The process… enables both the Court and
parties to scale down the areas of dispute by consenting on the
important issues that require full investigation and trial. The
process also allows for summary disposal of matters…” See also Ali
Vs NDIC (2014) LPELR – 22422 (CA) and Ikeyi Vs Crown Realities Plc
(2010) 6 NWLR (Pt.1189) 144, where it was held that the
pre-hearing, where successful, “reduces drastically a judges
docket, thereby hopefully ensuring speedy conclusion of contested
cases.”Per MBABA, J.C.A. (Pp. 22-24, Paras. F-C)
METROPOLITAN ESTATES v. UNION BANK (2018)
LPELR-43989(CA)
- APPEAL – FORMULATION OF ISSUE(S) FOR DETERMINATION:
Whether more than one issue can be formulated from a ground of
appeal and vice versa
“I consider it expedient to resolve the appeal on the issues
formulated by the Appellant as the Respondents would appear not to
have a thorough understanding of the position of the law regarding
issues formulated for the determination of an appeal; when having
first distilled, its issue 1 from grounds 1 and 2 in the notice of
appeal, again proceeded to distill its issue 2 from ground 2 in the
notice of appeal. The position of the law in my considered view is
settled to the effect that, while it is in order that an issue for
the determination of an appeal can be formulated from one or more
grounds of appeal, it is not permissible to formulate more than an
issue from a ground of appeal.”Per LOKULO-SODIPE, J.C.A. (P. 11,
Paras. A-E)
- APPEAL – RECORD OF APPEAL: Duty of an appellant in the
compilation of record of appeal from the lower court
“The Appellant in my considered view would appear to have lost
sight of the settled position of law to the effect that whether or
not the record of appeal was compiled by him, he owed himself the
duty to ensure that all materials necessary for the determination
of his appeal are contained in the record of appeal or placed
before this Court by way of additional record where any material he
considered necessary or material for the determination of the
appeal is not included in the record. See Order 8 of the 2016 Rules
of this Court.”Per LOKULO-SODIPE, J.C.A. (Pp. 62-63, Paras.
D-A)
- EVIDENCE – PROOF: What is the best way of proving
payment of money into a bank account
“The law certainly is that the “ipsedixit” of a witness can
hardly be sufficient proof of payment made to a bank, where the
fact of the payment or sum paid is in issue.See in this regard, the
case of ISHOLA V. SOCIETE GENERALE BANK (NIG) LTD (1997) LPELR –
1547 (SC) where the Supreme Court per Iguh, JSC; said thus: –
“Having alleged the said payment of N60,000.00 or N64,000.00
plus to the respondent bank, the onus was squarely on the appellant
to establish this very material fact by admissible and credible
evidence. Payment of money into an account may be proved either by
the oral evidence of the person who actually made the payment
personally to the bank or by the production of a bank teller or
acknowledgement showing on the face of it that the bank had
received the payment. This is because a bank teller, duly stamped
with the official stamp of the bank and properly initialled by the
cashier, constitutes prima facie proof of payment of the sum of
money therein indicated and a customer after producing such a
receipt needs not
prove more unless the payment is being seriously challenged. See
Aeroflot v. U.B.A. (1986) 3 NWLR (Pt.27) 188 at 190.”
See also the case of SALEH V. BANK OF THE NORTH LTD (2006) LPELR
– 2991(SC) where the Supreme Court per Musdapher, JSC; (as he then
was) said thus: –
“The best way of proving payment of money into a bank account is
by production of bank teller or an acknowledgment showing on the
face of it that the bank has received the payment. A bank teller
duly stamped with the official stamp of the bank and properly
initialed by the cashier, constitute prima facie proof of payment
of the sum therein indicated and a customer, after producing such a
teller or receipts needs not prove more unless payment is being
challenged, see Ishola v. S.G.B. (Nig.) supra and Aeroflot v.
U.S.A. (1986) 3 NWLR (Pt. 27) 188.” Per LOKULO-SODIPE, J.C.A. (Pp.
80-82, Paras. E-C)
OPARA v. MORECAB FINANCE LTD & ANOR (2018)
LPELR-43990(CA)
- APPEAL – UNAPPEALED FINDING(S)/DECISION(S): Whether an
appellate Court can disturb a judgment not appealed
against
“It is in my considered view however apparent that the Appellant
in making some of his submissions has gone further to question the
correctness of some of the rulings or orders made by the lower
Court in proceedings in the course of the judgment appealed
against. I am of the considered view that the correctness or
otherwise of such rulings or orders do not properly arise for
resolution in this appeal as there is actually no appeal in respect
of any of such rulings or interlocutory order(s). The law is in my
considered view settled that interlocutory appeals should be
brought within a specified period after the decisions in the
proceedings are made. Also, the law is settled as to how
interlocutory appeals can be argued in a substantive appeal or
together with a substantive appeal. Against this backdrop, I simply
do not see any legal basis to make any pronouncement on the
correctness or otherwise of the committal of counsel for the
Appellant for contempt; the propriety of the procedure in recalling
DW1 suo motu by the lower Court; the correctness of the decision of
the lower Court in the rejection of documentary evidence in the
form of the Diamond Bank Plc, cheque book; and the correctness of
the exercise by the lower Court of its discretion to grant
adjournment in the case it entertained, etc. The allegation of the
breach of the Appellant’s right to fair hearing in my considered
view must be examined against the backdrop of the presumed
correctness of the various acts undertaken by the lower Court in
the case it entertained. See the case of ISEZUO V. SANNI (2013)
LPELR – 21974.(CA).
Hence, 12 facts stated above and which I consider to be very
relevant in this appeal.”Per LOKULOSODIPE, J.C.A. (Pp. 43-45,
Paras. F-D)
- CONSTITUTIONAL LAW – BREACH OF RIGHT TO FAIR HEARING:
Effect of breach of right to fair hearing
“Flowing from all that has been said hereinbefore, is that the
appeal must succeed as I have found the lower Court to have
violated the Appellant’s right to fair hearing. The other issues
formulated for the determination of the appeal by the Appellant and
which go to question the correctness of the decision of the lower
Court on the merit, therefore go to nought as the proceedings and
judgment of the lower Court in the instant case, must by force of
law be declared nullities. In this regard see the cases of AFRO
CONTINENTAL (NIG) LTD V CO-OPERATIVE ASSOCIATION OF PROFESSIONALS
INC (supra) LPELR – 217(SC) and INOGHA MFA V. MFA INONGHA(2014)
LPELR – 22010 (SC).”Per LOKULO-SODIPE, J.C.A. (P. 51, Paras.
A-D)
- PRACTICE AND PROCEDURE – FINAL ADDRESS: Whether parties
to Court proceedings have Constitutional right to address the Court
before judgment is delivered in a matter and effect of breach
thereof
“The lower Court by doing this in my considered view did not
accord the giving of final addresses by parties, the primacy, or
pre-eminence, or importance that has in recent times being accorded
the same being a constitutional right. See in this regard the cases
of OYEKAN V. AKINRINWA (1996) LPELR-2871(SC);ISEZUO V. SANNI
(supra); GITTO COSTRUZIONI GENERALI NIGERIA LTD V. ETUK (2013)
LPELR – 20817 (CA); and ADEGBOYE V. SALAWU (2013) LPELR-22140(CA)
amongst many others. In the instant case, it is not obvious on the
face of the record that the lower Court averted its mind at all to
the fact that parties were constitutionally entitled to final
addresses. The said Court if it had averted its mind to this, and
actually appreciated the fact that final addresses by parties is
another stage in the hearing of a case, ought to have adjourned for
that purpose (given the fact that it proceeded to conclude the
Respondents’ case in the absence of the Appellant and his counsel)
and directed that hearing notice should issue on the Appellant. The
bottom line from all that has been said above, is that irrespective
of whether or not the lower Court remanded the Appellant’s counsel
to prison for contempt in order to intimidate him and thereby make
him lose proper grip of the Appellant’s case and or whether or not
the lower Court descended into the arena as alleged by the
Appellant, the lower Court has glaringly breached the Appellant’s
right to fair hearing having not entertained and disposed of two
pending motions (and which are thereby still live in the Court’s
case file) and by not affording the Appellant any opportunity to
deliver a final address in the case.”Per LOKULO-SODIPE, J.C.A. (Pp.
48-50, Paras. C-A)
Culled from LawPavilion