In the Supreme Court of Nigeria holden at Abuja on Friday, December 14, 2012 before their lordships: Ibrahim Muhammad, JSC; John Fabiyi, JSC; Mary Peter-Odili, JSC; Olukayode Ariwoola, JSC and Kumai Aka'ahs, JSC.
Federal Republic of Nigeria
The Tribunal no doubt was vested with the toga of jurisdiction to try count 1 of the charge. To find otherwise will not be in tandem with the dictate of the law as envisaged by the lawmakers. It is not the business of the court to create an escape route for the appellant as strenuously urged on his behalf.
So held by a Justice of Supreme Court (JSC), Justice John Fabiyi, in a lead judgment he delivered with his learned brothers: lbrahim Tanko Mohammed, JSC; Mary Peter-Odili , JSC; Olukayode Ariwoola, JSC; and Kumai Bayang Aka'ahs, JSC, concurring in dismissing the appeal on the grounds that the apex court will not interfere with the concurrent findings of the tribunal and the lower court that are not perverse.
This is an appeal against the judgment of the Court of Appeal, Calabar Division ('the court below' for short) delivered on April 26, 2001. Therein, the appellant's appeal against the judgment of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal holden at Calabar ('the trial Tribunal' for short) delivered on March 24, 1999 was allowed in part as the appellant's conviction in respect of counts 1 and 2 was upheld while he was discharged and acquitted in respect of counts 7 and 9 contained in the charge sheet.
For a proper appreciation of the issues canvassed in this appeal, it is apt to assemble the relevant facts with due emphasis on the appellant's complaints in respect of his conviction and sentence in the stated counts 1 and 2.
The 2nd Accused/Appellant was on November 16, 1999 arraigned with three others before the trial Tribunal. They were arraigned and tried together for various offences in a 9- count charge. For the purpose of this appeal, the particulars of counts 1 and 2, which are of moment.
The facts as assembled by the appellant's counsel and adopted by the respondent's counsel with which I am at one with both of them are as follows - The appellant was engaged as an officer of Nigeria-Arab Bank Limited on April,10, 1989. He worked in various branches of the Bank and was posted from Daleko Branch of the Bank as an Accountant in June, 1994.
There, he met Samuel B. Apata, the 1st accused as the Manager. The 1st accused became Principal Manager in 1996. Otta Akhibi (3rd accused) was the Managing Director of Axtro Films Limited (4th Accused) which was a customer of the Branch where it maintained a current account No. 3101164726.
The 3rd accused's company (the 4th Accused) was by a letter dated 5th July, 1994 granted through the bank, a six- year term Loan by the National Economic Reconstruction Fund (NERFUND). The loan was in the sum of $1,276,680.00 and N2,212,000.00 which was for the importation and installation of machinery for the manufacture and production of the required plant and machinery.
The case of the prosecution was that the 1st accused and the appellant as the Branch Manager and Branch Accountant respectively, granted overdraft credit facilities to the tune of N45,341,466.35K. to the 3rd accused's company, the 4th accused, which was unsecured and in breach of the rule and regulations contained in the bank's Operation Manual as amended from time to time by the Head Office Circulars.
The prosecution maintained that the cheque presented by the 3rd accused person in purported part payment of the said overdraft after much pressures was dishonoured for lack of funds.
At the conclusion of the trial, counsel on both sides submitted written addresses to the trial Tribunal which in its reserved judgment delivered on March 24, 1999 rejected the defence of the 1st accused and the appellant. It found them guilty on counts 1, 2, 7 and 9. Each of them was sentenced to five years imprisonment on counts 1, 7 and 9 with sentences to run concurrently and 3 years imprisonment in respect of count 2. Sentences were also dished out to the 3rd and 4th accused persons in abstentia.
The appellant herein felt dissatisfied and appealed to the court below which heard the appeal and handed out its judgment on April 26, 2001. It set aside the conviction and sentence of the appellant in counts 7 and 9 and affirmed the convictions on counts 1 and 2.
The sentences passed on the appellant in counts 1 and 2 by the trial Tribunal were reduced to a fine of N20,000 or six months term of imprisonment in count 1 and a fine of N50,000 or 18 months imprisonment in count 2. The fines were made cumulative and the prison terms, concurrent. The appellant was ordered to be released from prison having served-over18 months in prison custody.
The appellant still felt dissatisfied with the stance of the court below and appealed to this court vide a Notice of Appeal which contained three grounds of appeal.
The appellant tried to cling to fair hearing principle under section 36 (8) of the 1999 Constitution. As stated earlier on, the Decree vests the Tribunal with the requisite power to enforce other existing penal statutes. In short, I resolve issue 1 in favour of the respondent. I sustain the stand taken by the court below without any equivocation.
Issue 2, put briefly, is whether the learned justices of the court below were justified in affirming the conviction of the appellant on counts 1 and 2 of the charge.
The court below found that there was overwhelming evidence to sustain the conviction of the appellant in count 1 of the charge.
From the circumstance of the matter as carefully considered by the court below, I have no cause to interfere with the balanced appraisal made. I affirm the position taken by the court below and resolve the point touching on conspiracy against the appellant and in favour of the respondent. The stance taken by the court below is without blemish.
The appellant did not show that he took proper steps before
counter-signing most of the cheques-Exhibits G-G180 which led to the colossal unauthorized and unsecured facilities to the 4th accused. If he had taken proper steps by refusing to counter sign the vast majority of those cheques, the story would have been different. The appellant's contention that the evidence of PW2 and PW3 raise doubts as to the role played by him rests of quick sand. It has no foundation. The 1st accused and the appellant herein know the rules contained in Exhibits J and H series which they flouted and granted unauthorized facilities to the 4th accused.
Without much ado, I am at one with the stance taken by the trial Tribunal and the court below. With respect to the two counts for which the appellant was convicted and sentenced, the appellant failed to extricate himself. In the main, I resolve issue 2 against the appellant and in favour of the respondent as well.
This is clearly a case where the trial Tribunal and the court below made concurrent findings of fact on virtually all the issues that were seriously canvassed. They also considered the applicable laws properly in an admirable fashion. This court will not interfere as there are no reasons shown to justify same. See: Kale v. Coker (1982) 12 SC 252; Musa v. The State (supra) and Almu v. The State (supra).
On the whole, I come to the conclusion that the appeal lacks merit and it is hereby dismissed. The conviction in respect of counts 1 and 2 and the reduced sentence made by the court below are hereby affirmed.
Chief Philip Umeh, learned counsel for the respondent urged that the appeal be dismissed with substantial costs. This is the first time I will read such a thing in brief of argument dealing with a criminal matter. Learned counsel should know better. The rules of the court did not touch on same. It is unheard of and should not be repeated.
Lawyers: C. C. Ihekweazu for the Appellant.
Philip Umeh (with him A. B. Tase and Joy Ebeledike (Mrs.) for the Respondent.