Between

JOHN BABANI ELIAS

and

1.    FEDERAL REPUBLIC OF NIGERIA
2.    AL-AKIM INVESTMENT NIGERIA LTD

JUDGMENT
(DELIVERED BY JUMMAI HANNATU SANKEY, J.C.A.)
The Appellant herein was re-arraigned before the Federal High Court sitting in Yola on 19th May, 2015 on an Amended Charge No. FHC/YL/10C/2013 for the offence of intent to defraud the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria, 2004. He was charged along with two others, Mohammed Inuwa Bassi and Al-Akim Investment Nig. Ltd (the 2nd Respondent herein).  After a full-fledged trial, Mohammed Inuwa Bassi, (1st accused person), having been found not guilty, was discharged and acquitted; while the Appellant and the 2nd Respondent (2nd and 3rd accused persons before that Court), were found guilty as charged, convicted and sentenced accordingly.

A synopsis of the facts of the case before the lower Court is as follows: The 1st Respondent, through the Economic and Financial Crimes Commission (EFCC), initiated an action vide a twenty-eight count charge against four defendants, namely: Boni Haruna (the former Governor of Adamawa State, Mohammed Inuwa Bassi (a one-time Legislative Aide to the former Governor, Boni Haruna, and former Member of the Adamawa State House of Assembly), John Babani Elias (a former Commissioner for Local Government & Chieftaincy Affairs in Adamawa State) and Al-Akim Investment Nig. Ltd (a limited liability company). All the defendants pleaded not guilty to the numerous counts of charge, and trial commenced. The 1st defendant, Boni Haruna, was subsequently discharged on a no-case submission, and trial continued in respect of the other three defendants on an amended four count charge. This Appeal is therefore predicated on the outcome of the trial on this amended four count charge.
The Amended Charge read as follows: 

AMENDED CHARGE
That you, MOHAMMED INUWA BASSI on or about the 26th of November, 2002 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to 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 your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.

COUNT 2
That you, MOHAMMED INUWA BASSI on or about the 23RD of January, 2003 at Yola within the jurisdiction of this Honourable Court did aid JOHN BABANI ELIAS and AL-AKIM INVESTMENT NIGERIA LIMITED to cause the payment of the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no: 0875930 dated 28/01/2003 into Guaranty Trust Bank Plc, account no. 3613406139110 operated by BBB PROJECT in your name, monies meant for Adamawa State Local Governments joint development project and thereby committed an offence contrary to Section 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) of the same Act.

COUNT 3
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent 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 hereby committed an offence 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 BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, 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 the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 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 Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
When the charge was read to the accused persons, they pleaded not guilty. Thereafter, trial commenced with the prosecution adducing evidence in proof thereof through seven witnesses and twelve exhibits. In their defence, the accused persons also adduced evidence through four witnesses, (inclusive of the 1st and 2nd accused persons), and also offered documentary evidence in the form of two exhibits. At the close of trial, learned Counsel for the accused persons, as well as learned Counsel for the prosecution, in their final summations addressed the lower Court on the issues of facts and law arising there from on 6th July, 2015, and the case was thereafter adjourned for Judgment. 

Subsequently, after the time constitutionally prescribed for the delivery of Judgment had lapsed, the learned trial Judge invited Counsel to re-adopt their written addresses on 17th November, 2015. The Judgment was finally delivered on 4th December, 2015. Therein, the learned trial Judge found that counts one and two of the Amended Charge against the 1st defendant had not been proved. She therefore discharged and acquitted him of the said two counts of Charge. For the 2nd and 3rd Defendants however, she found that the prosecution had succeeded in proving counts three and four against them. She therefore convicted them as charged. The 2nd Accused was sentenced to a term of ten years imprisonment without an option of fine on each count of charge, sentences to run concurrently, in addition to which he was ordered to refund the sum of N51, 500, 000.00 (Fifty-One Million Five Hundred Thousand Naira) to the coffers of the Adamawa State Government Joint Account Committee; while the 3rd accused, a limited liability company, was sentenced to a fine of N5, 000,000.00 (Five Million Naira), was ordered to be wound up by the Corporate Affairs Commission, and the proceeds from its assets were to be forfeited to the Federal Government of Nigeria.

Thoroughly piqued and dissatisfied by this decision, the 2nd accused person promptly filed an Appeal vide his Notice of Appeal, on 11th December, 2015. Therein, he complained on thirteen grounds. He however subsequently filed another Notice of Appeal on 18th January, 2016 wherein he complained on twenty grounds. Since the second Notice of Appeal was also filed within the time prescribed for filing of Appeals by the Rules of this Court, this Notice overtakes the first Notice; and the Appeal is said to be predicated on this latest Notice and the arguments in the Briefs of argument are based thereon. From paragraph 2 of the Notice of Appeal, the following reliefs are sought from this Court:

i.    “An order allowing the appeal;
ii.    An order setting aside the judgment delivered on 4th December, 2015 by Honourable Justice Bilkisu Bello Aliyu of the Federal High Court, Yola Division in CHARGE NO. FHC/YL/10C/2013 between FEDERAL REPUBLIC OF NIGERIA VS MOHAMMED INUWA BASSI & 2 ORS;
iii.    An order setting aside the conviction of the Appellant;
iv.    An order setting aside the sentence of the Appellant to 10 years imprisonment and “to return/refund the sum of N51.5 million to the Adamawa State Local Government Joint Account Fund”.
v.    An order discharging and acquitting the Appellant.
vi.    And for such further or other order(s) as this honourable court may deem fit to make in the circumstances.”

At the hearing of the Appeal on 07-04-2016, learned Counsel for the Appellant, Rickey Tarfa, S.A.N., appearing with J.O. Odubela Esq., Andrew Malgwi Esq., Rabi Buba (Miss), T.U Danjuma Esq. and A.A. Hamma Esq., adopted the Appellant’s Brief of argument filed on 20-01-2016, as well as the Appellant`s Reply Brief of argument filed on 07-03-2016 (but deemed filed 07-04-2016) as the Appellant’s submissions in the Appeal. He withdrew the first Notice of Appeal filed on 11-12-15 and argued the Appeal based on the second Notice of Appeal filed on 18-01-2016 contained in the supplementary Record of Appeal. In an additional submission, Counsel relied on the following additional authorities in respect of his submissions under issue one: Eguaba V FRN (2004) ALL FWLR (Pt. 2032) 1512 at 1520, paras B-E; and Sonoma V IGP (2013) LPELR-20833(CA) 1 at 32-33, paras D-G. He urged the Court to allow the Appeal and grant the reliefs sought. 

On his part, learned Counsel for the 1st Respondent, Samuel Okeleke Esq., EFCC, appearing with Chris Mshelia Esq., adopted the 1st Respondent’s Brief of argument filed 04-03-2016 (and deemed filed on 07-04-2016), as the 1st Respondent’s arguments in opposition to the Appeal. He urged the Court to dismiss the Appeal as lacking in merit. Finally, U.D Silas Esq., learned Counsel for the 2nd Respondent who did not file any court process in the Appeal, did not oppose the Appeal.

The Appellant having withdrawn the Notice and Grounds of Appeal filed on 11-12-2015, it is accordingly struck out. 
In their respective Briefs of argument, learned Counsel for the Appellant distilled seven issues from the twenty Grounds of Appeal for the resolution of the Appeal; and learned Counsel for the 1st Respondent, while agreeing with him on the substance of the issues, adopted them with slight modifications. Thus, being virtually identical in content, except for the expected slants from the angles of opposing parties to the Appeal, the issues crafted by the Appellant are adopted in the resolution of this Appeal. They are set out hereunder as follows:

i.    “Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence, particularly forgery,  prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004. (Ground 4)
ii.    Whether having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute. (Grounds 1, 2, 3 and 5). 
iii.    Whether the Judgment of the trial Court ought to be set aside having been based on wrongfully admitted exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B to convict the Appellant in the instant appeal. (Grounds 12, 13 & 14).
iv.    Whether there is any admissible evidence before the trial Court to establish the fact that the Appellant authorized the issuance of the two cheques (Exhibits 71A & 71B) if admissible at all in the instant appeal. (Grounds 7, 8, 9, 10 & 11).
v.    Whether having regard to the entire circumstances of the Amended Charge, the Judgment of the trial Court delivered more than 90 days is reasonable, supported by weight of evidence and ought not to be set aside in the instant appeal. (Grounds 6, 15, 16, 17, 20 & 21).
vi.    Whether the prosecutor proved each of the necessary ingredients of the offence on counts 3 and 4 of the Amended charge beyond reasonable doubt in the instant appeal. (Ground 18).
vii.    Whether the conviction and sentence of the Appellant ought not to be set aside in the instant appeal. (Ground 19).”

In the determination of the Appeal, the issues shall be considered in the following order: issues (i) and (ii) together; issues (iii) and (iv) together; issue (v) alone, and issues (vi) and (vii) together.
Issues (i) and (ii):
i.    Whether the trial Court had jurisdiction to have convicted the Appellant based on the Amended Charge dated 27th April, 2015 which did not contain/disclose all the ingredients of the offence,  particularly forgery,  prescribed under section 1(2) (b) of the Miscellaneous Offences Act CAP M17 Laws of the Federation of Nigeria, 2004;

AND

ii.    Whether, having regard to the ratio decidendi of Abidoye V F.R.N. (2014) 5 NWLR (Pt. 1399) 30, forgery is no longer part of the ingredients of the offence which ought to be proved by the prosecutor merely because it is not contained in the Amended Charge notwithstanding its prescription in the statute.

Under issue (i), learned Counsel for the Appellant submits that in a criminal suit, one of the basis of jurisdiction is that a competent charge must disclose all the ingredients of the offence contained in the statute creating the offence. Where a charge is deficient in such, it is incurably bad and does not disclose a prima facie case. Counsel contends that Counts 3 and 4 of the Amended Charge, under which the Appellant was convicted, omitted all the essential ingredients of the offence spelt out under Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation, in particular, the phrase that states as follows: “by virtue of any forged or false cheque, promissory note or other negotiable instrument”.  He also contends that the two counts failed to state both the time and place in Yola when and where the offence was committed. Counsel submits that the combined effect of Section 36(6) (a) and (12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) requires the 1st Respondent to state details of the nature of the offence as defined in the Act. The failure of the 1st Respondent to do so in the Amended Charge has rendered the charge speculative and as a result, is not a valid charge. Counsel therefore urged the Court to resolve this issue in favour of the Appellant. For these submissions, he relies on: Madukolu V Nkemdilim (1962) 1 ALL NLR (Pt. 2) 581 at 589-590; Oloruntoba-Oju V Abdulraheem (2009) 13 NWLR (Pt. 1157) SC 83; Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 57; & M.D.P.D.T. V Okonkwo (2001) 7 NWLR (Pt. 711) 206 at 237.

In responding to the submissions of the Appellant, learned Counsel for the 1st Respondent agrees that the essential ingredients of the offence must be disclosed in the charge, and that this is an inalienable right of an accused under Section 36(6) of the Constitution (supra). The Appellant and 2nd Respondent were jointly charged in counts 3 and 4 of the Amended Charge with the offence of ‘causing the payment of money with the intent to defraud’ the Government of Adamawa State punishable under Sections 1(2) (b) and 3(2) of the Miscellaneous Offences Act (supra). He submits that the ingredients of the offence under which the Appellant was convicted and sentenced are:

i.    knowingly/with intent to defraud the Government of Adamawa State
ii.    cause delivery/payment to himself or any other person of any property or money
iii.    by virtue of any forged or false cheque, promissory note or other negotiable instrument.

He submits that both counts 3 and 4 of the Amended Charge contain the time (date) and place of the alleged offence, the names of the Appellant and particulars of the offence, reasonably sufficient to give the Appellant notice of the offence with which he was charged, in conformity with Section 152(1) the Criminal Procedure Act. Any objection to a charge for any perceived irregularity shall be taken immediately after the charge is read over to the accused and not later. In the instant case, there is nothing on Record to show that the Appellant raised any objection when the charge was read to him and he pleaded to it. It is also the law that a charge must disclose the “essential” elements of the offence, and not “all” the ingredients of the alleged offence as canvassed by the Appellant. Further, that in disclosing the date and time of the offence in the charge, ‘time’ connotes the date and not the time of the day in which the offence was committed. In addition, Counsel submits that in drafting a charge, no error in stating the particulars can invalidate the charge except where the accused person was misled, and thus, that the lower Court was right to have assumed jurisdiction. Counsel therefore urged the Court to resolve issue one against the Appellant. He relies on: Amiwero V AGF (2015) ALL FWLR (Pt. 802) at 1742; Timothy V FRN (2008) ALL FWLR (Pt. 402) 1136 at 1153; Timothy V FRN (2013) NWLR (Pt. 1344).

In the Appellant’s Reply Brief of argument, learned Counsel for the Appellant submits that the attempt by the 1st Respondent to make a distinction between “essential” and “all” the ingredients of the offence charged, is nothing but semantics. However, that by paragraphs 3.6 and 3.25 of the 1st Respondent’s Brief, it has been admitted that forgery is one of the essential ingredients of the offence charged. He also submits that, contrary to the submissions of the 1st Respondent, time does not connote date, and date and time are not one and the same thing. 
In response to the submission that the Appellant pleaded to the incompetent charge without raising any objection thereto, Counsel submits that an issue of jurisdiction can be raised at any time by any of the parties or by the Court suo motu, and for the first time before this Court or even before the Supreme Court. He contends that the reliance on Timothy V FRN (supra) in support of the 1st Respondent’s position is totally inappropriate as the facts are not on all fours. Thus, the issue of whether the Appellant was not misled by the omission in the charge does not arise when the trial conducted is null ab initio. He argues that this is sufficient to base the assertion of miscarriage of justice as the Appellant was convicted based on an incompetent charge. He argues that the error in omitting the essential ingredients of forgery, time and place in the charge is not a mere irregularity, but a fundamental error which goes to the root of the Charge itself. For these submissions, Counsel relies on Olley V Tunji (2013) 10 NWLR (Pt. 1362) 275 at 321, para D; Sani V State (2015) 15 NWLR (Pt. 1483) 522 at 550, paras C-D; Petrojessica Enterprises Ltd V Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 at 693, paras E-F; Mpama V FBN Plc (2013) 5 NWLR (Pt. 1346) 176 at 204; & Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376 at 414, paras D-F.

Under issue two, learned Senior Counsel submits that all the parties before the lower Court agreed that one of the fundamental ingredients of the offence charged in counts 3 and 4 of the Amended Charge as stated/defined under Section 1(2) (b) of the Miscellaneous Offences Act (supra) is that money belonging to a Government must be paid “by virtue of any forged or false cheque, promissory note or other negotiable instrument”. Therefore, forgery must be alleged in the charge and also proved. However, contrary to this position taken by the parties on the issue in their final written addresses, the lower Court, relying on Abidoye V FRN (supra), suo motu raised and found in its Judgment that the 1st Respondent had no such burden to prove all the ingredients under Section 1(2) (b) of the Miscellaneous

Offences Act (supra) including forgery, except for the ingredients stated in the Amended Charge itself. Counsel contends that this was a new issue as none of the parties had argued that the ingredients of the offence that must be proved are only those contained in the Amended charge. This being a new point, the trial Court ought to have invited the parties to address on the issue before it went on to decide on it. He therefore contends that the finding reached by the lower Court without hearing from the parties runs afoul of the principle of fair hearing and the Appellant was prejudiced thereby. He relies on: Olatunji Adisa (1995) 2 NWLR (Pt. 376) 167 at 183-184; Oshodi V Eyifunmi (2000) 13 NWLR (Pt. 684) 298 at 352, paras E-H; INEC V Ogbadibo Local Government (2015) LPELR-24839(SC); & Leaders & Co. Ltd V Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 at 341, paras G-H (SC).

As an alternative submission, Counsel submits that the ratio decidendi of Abidoye V FRN (supra) is that there was an additional ingredient added to the charge against the accused which was in excess of the offence as stated in the statute. Since the facts in the Abidoye case were not on all fours with the facts in the instant case, the lower Court erred in its finding thereon. He contends that the Appellant’s right to fair hearing has therefore been abridged as there was non-compliance with Section 36(6) (a) & (12) of the Constitution (supra) which requires the 1st Respondent to state details of the nature of the offence as defined in Section 1(2) (b) of the Miscellaneous Act in the Amended Charge; as well as non-compliance with Section 135 (1) of the Evidence Act.  
It is further submitted that since the Appellant was charged and convicted under Section 1(2) (b) of the Act (supra), which included a forged negotiable instrument as one of the fundamental ingredients of the offence, the omission of forgery in the two counts of charge does not relieve the 1st Respondent of the burden of proving it. Since “a forged negotiable instrument” was not stated in the Amended Charge and it was not proved that the money was delivered by a forged negotiable instrument, Counsel urged the Court to resolve issue two in favour of the Appellant. He relies on Green V Green (2001) 45 WRN 90 at 118-119; (1987) 3 NWLR (Pt. 67) 480 at 500, paras H-D; Dairo V UBN Plc (2007) ALL FWLR (Pt. 392) 1846 at 1886, paras B-C & G; Omega Bank Plc V Govt. of Ekiti State (2007) ALL FWLR (Pt. 386) 658 at 688, paras G-H; Ojo V FRN (2009) ALL FWLR (Pt. 494) 1461 at 1497, paras B-E; Tanko V State (2008) 16 NWLR (Pt. 1114) at 636, paras D-F.

In response, learned Counsel for the 1st Respondent submits that the Appellant, in his final written address before the lower Court, argued that the prosecution must prove forgery in all its spheres and proceeded to rely on the case Nigeria Air Force V James (2002) 18 NWLR (Pt. 798) 295. In consequence, the trial Court relying on the principle of stare decisis, applied the decision in Abidoye V FRN (supra) to resolve the issue. By reason of this decision, the lower Court held that the prosecution does not need to prove forgery; and that all the prosecution needs to prove are the ingredients of the offence as specifically charged, irrespective of the provisions of the statute creating the offence. He therefore argues that the lower Court’s reliance on Abidoye V FRN (supra) is not tantamount to raising a fresh issue suo motu; and further submits that the prosecution only needs to prove the charge as laid.  For this, he places reliance on Section 151(4) of the Criminal Procedure Act, Cap C41 LFN 2004, which is in pari materia with Section 195 of the Administration of Criminal Justice Act, 2015. As a result, he contends that the case of Abidoye V FRN (supra) is applicable and was rightly applied by the lower Court. Counsel however submits in the alternative that, where the case of Abidoye V FRN (supra) is found not to be applicable, the 1st Respondent still did prove all the ingredients in the charge.
In a brief reply on point of law, Senior Counsel in the Appellant’s Reply Brief, submits that Section 151 (4) of the Criminal Procedure Act, which is equivalent to Section 195 of the Administration of Criminal Justice Act, 2015 does not say anything contrary to the state of the law.

Findings:   

I have given a thorough consideration to the submissions of both learned Counsel before the Court. Issue one is premised on the state of the law as provided in Section 36(6) (a) of the Constitution of the Federal Republic of Nigeria (as amended) which provides thus:

“36(6) - Every person who is charged with a criminal offence shall be entitled to – 

(a)    be informed promptly in the language that he understands and in detail of the nature of the offence.”
This provision is quite clear and requires no further external aids to interpret it. Nevertheless, it has received judicial interpretation by many appellate Courts. The conditions set out in Section 36(6) (a) supra include the procedural step of reading over and explaining the charge to the accused in the language which he understands to the satisfaction of the court, which would then call upon him to plead thereto. See Ayodele V State (2010) LPELR-CA/B/291/2008. In Adeniji V State (2001) 13 NWLR (Pt. 375) 390, Katsina Alu, JSC (as he then was) pronounced thus in respect of Section 36(6) (a):

“Once the record of the court shows that the charge had been read over and explained to the accused, and the accused pleaded to it before the case proceeded to trial, it is to be presumed that everything was regularly done.”
In the instant case, the record of the trial Court (at page 186 thereof) shows that the plea of the Appellant was taken, after the charge was read and explained to him in English language to the satisfaction of the trial Court, and he stated that he understood it and pleaded not guilty thereto, before the trial of the accused/Appellant commenced. Consequently, on the authority of Adeniji V State (supra) the requirements of Section 36(6) (a) of the Constitution (supra) were complied with.
With all due respect to learned Senior Counsel, there is no requirement in Section 36(6) (a) of the Constitution that all the details of an offence must be set out or specified in a charge for a criminal trial to be valid. It is the law that in drafting a charge, its contents should include the name of the accused person(s), date of the commission of the offence, statement of the offence committed in its ordinary name (not technical), name of the person and of the thing against whom or in respect of which the offence was committed, the enactment and the section thereof allegedly contravened, and the signature of the person drafting the charge. In the instant case, the charge under which the Appellant was tried and convicted satisfied all these requirements of a valid charge. With regard to the submissions on Section 36(12) of the Constitution, the provision states as follows:

“Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, written law refers to an Act of the National Assembly or a Law of a Staten any subsidiary legislation or instrument under the provisions of a law.”
Having found that the charge is in compliance with the constitutional provisions relied on, I have gone on to examine the actual gripe of the Appellant with the charge. It lies on the assertion that whereas the word “forgery” is used in the provision of the law, it is not so stated in the charge.

Learned Senior Counsel for the Appellant has made a huge fuss over the absence of the word “forgery” as well as the use of the word “draft” instead of “cheque” in the Amended charge which, in his view, would bring it in line with the exact wordings of Section 1(2) (b) of the Miscellaneous Offences Act. With due respect, Senior Counsel’s submissions which, while intensely and brilliantly couched, cannot stand in view of the settled law on the issue. It is true that it is not part of our criminal justice system that the subject of a charge be a matter of speculation and inference, as rightly stated in the cases of Olowu V Nigerian Navy (2007) ALL FWLR (Pt. 350) 1278 at 1301, paras C-G (SC); Timothy V FRN (supra); Medical & Dental Disciplinary Tribunal V Okonkwo (2001) FWLR (Pt. 44) 542; (2001) 3 SCNJ 186. The question however is whether in the instant case, the charge was ambiguous and difficult for the accused person to locate the precise offence for which he was charged. 

At pages 79 to 80 of the printed Record, the learned trial Judge in very clear terms on 07-03-2013, had the charge read out to the Appellant, who affirmatively confirmed that he understood same and pleaded not guilty to it. This process was repeated on 19-05-2015 when the charge was amended. The charge was again read out (at pages 184 to 186 of the Record) and he said he understood it. From all indications, there was no reason to infer or by any stretch of the imagination to suggest that the Appellant was left in any doubt as to the nature of the charge against him. This is also because, by his status as a former Commissioner in Government, he is no doubt a very enlightened person who was certainly aware of all the events happening around him. The case of Abidoye V FRN (supra) requiring the stating of the particulars of the offence in a charge, which was relied on by the learned Senior Counsel for the Appellant does not aid his case, as the circumstances in that case are distinguishable from the facts in the instant case.  In other words, the charge herein is neither defective nor ambiguous.
Certainly, counts 3 and 4 of the Amended Charge under which the Appellant was tried and convicted is in respect of an offence known and well-defined by Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17, Laws of the Federation 2004, being an Act of the National Assembly.

For ease of reference, the said provision provides as follows:

“1(1) 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 of any Local Government, causes the delivery or payment of to himself or any other person of any property or money by virtue of any forged or false cheque, promissory note or other negotiable instrument whether in Nigeria or elsewhere; shall be guilty of an offence and liable on conviction to imprisonment to a term not exceeding 21 years without an option of fine.” (Emphasis supplied)
Also, the contents of the Amended Charge are set out hereunder:    

COUNT 3
That you, JOHN BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, on or about the 26th of November, 2002 at Yola, within the jurisdiction of this Honourable Court, with intent 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 hereby committed an offence 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 BABANI ELIAS, and AL-AKIM INVESTMENT NIGERIA LTD, 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 the sum of N21, 000, 000.00 vide a Habib Nigeria Bank Limited draft no. 0875930 dated 28/01/2003 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 Governments joint development project and hereby committed an offence under Sections 1(2) (b) and 3(2) of the Miscellaneous offences Act, Cap M17 Laws of the Federation of Nigeria, 2004.
(Emphasis supplied)

It is not a sine qua non of compliance that the exact words in the statute creating the offence must be used in drafting a charge. Where a charge is framed and broken down in words which are easily understandable and brings to the notice of an accused all the essential elements of an offence as spelt out in the law creating the offence, it suffices. Clearly, the substantive law under which the Appellant was charged stipulates that the offence should have been committed via a forged or false document which could be in the nature of a cheque, a promissory note or other negotiable instrument. The word “cheque” in Black’s Law Dictionary, Tenth Edition, pages 287 & 289, unquestionably is inclusive of the word “draft”, to properly accommodate the reference to “draft” in the Amended Charge. For avoidance of doubt, it is defined therein as follows:
“Check. A draft, other than a document draft, signed by the drawer, payable on demand, drawn on a bank, and unconditionally negotiable. The term includes a cashiers’ check or teller’s check. An instrument may be a check even though it is described on its face by another term, such as “money order.” – also spelled cheque. See DRAFT (1).

“A check is an unconditional order in writing, addressed to a bank or banker, signed by the person giving it, requiring the bank or banker to pay on demand a sum certain in money to a designated person, or to order, or to bearer. In other words, a check is an instrument in the form of a bill of exchange, drawn on a bank or banker, and payable on demand.” Francis B. Tiffany, Handbook of the Law of Banks and Banking 96 (1912). 

Thus, the Amended Charge fulfilled the requirements of the law creating the offence by the disclosure therein that the Appellant, with intent to defraud the Adamawa State Government, caused the payment of certain sums of money through named and identified bank drafts into the account of BBB Project. The actual grouse of the Appellant, as I understand it is that, whereas the enactments refer to “forged” or false cheque, promissory note or other negotiable instrument, there is no mention of forgery in the charge and therefore an essential ingredient of the offence has not been stated. With all due respect to learned Senior Counsel, I am of the view that this line of argument is both trifling misconceived. This is because, when the enactment speaks of “a forged or false” cheque, promissory note or negotiable instrument, it is the facts which denote this state of affairs that is expected to be contained in the charge. Once the details in the charge are sufficient to place the accused on notice of what he is being accused of, it satisfies the requirement of the law with regard to the contents of a charge. 
In the instant case, the charge quite clearly alleged that the Appellant caused the delivery or payment to himself or to some other person (Al-Akim Investment Company) the various sums of money stated in the charge by means of two Habib Bank drafts, paid into the account of a named person (BBB Project Fund), monies which were meant for some other person (Adamawa State Local Governments Joint Account Fund), with the intent to defraud the said person. Without the necessity of mentioning/reciting “forged” or “false”, the charge was lucid and comprehensible on the offence committed in line with Section 1(2) (b) of the Misc. Offences Act. In addition, whereas the Appellant fixates on the word “forgery”, the provision is clear on the fact that the intent to defraud should be manifested by means of a “forged” or “false” cheque or draft or promissory note or other negotiable instrument. It is commendable that the legal draftsman tried to cover all creative possibilities that could arise in the manifestation of the offence. In the instant case, the two counts of charge revealed that, with intent to defraud, the Appellant through two Habib Bank drafts caused the payment of the stated sums of money into the accounts of the person named therein.

When the Amended Charge was read to the Appellant, he clearly stated that he understood it before he pleaded not guilty to same. Thereafter, evidence was adduced through seven witnesses wherein all the ingredients of the offence were again disclosed, before the Appellant entered his elaborate defence through his testimony and that of three other witnesses. There is nothing on the face of the Record, and learned Senior Counsel has not even suggested as much, that the Appellant was misled by any perceived or imagined defect in the Amended Charge. The ingredients of the offence were therefore plainly contained in the charge sufficient to put the Appellant on notice of what he was being charged with, in consonance with the offence defined in the statute. I do so find. As a result, I find no substance in the complaint.

Furthermore, Section 166 of the Criminal Procedure Act provides as follows:

“No error in stating the offence or particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.”
Where an appellant, (as in the case at hand), fails to show that he was misled by what he perceived as a defect in the charge read to him at the trial, he does complain too late at the appeal stage. This is in keeping with the follow-up section, Section 167 of the same Act which provides:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”

See Egunjobi V FRN (2012) LPELR-SC.44/2010; Amadi V FRN (2008) 18 NWLR (Pt. 119) 259; Ndukwe V LPDC (2007) 5 NWLR (Pt. 1026) 1. This was also the basis of the holding in the Supreme Court decision of Agbo V State (2006) 6 NWLR (Pt. 977) 545. From these authorities, I am of the considered view that for an appellant to benefit from any defect in a charge, he has the duty/burden to prove to the satisfaction of the court at any stage of the case that the error or omission on the face of the charge had misled the accused/appellant during the trial and had also led to a miscarriage of justice. If the appellant cannot establish how he was misled by the error or how the error led to a miscarriage of justice during the trial, the error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See also Peter V State (2013) LPELR-CA/B/128C/2010; Yabugbe V COP (1992) 4 NWLR (Pt. 232) 153 at 172 & 176.

As a result, what this issue boils down to is, whether on the facts in the charge, the Appellant was in any way misled. As aforesaid, to be misled, the defect must be fundamental and misleading. In the instant case, I have already found that the charge was not bad in law since it described a known offence under the Miscellaneous Offences Act Cap M17, Laws of the Federation, 2004. Furthermore, when the charge was read to the Appellant, he said he understood and pleaded not guilty. It is only after testimony and exhibits were received by the Court that it was argued on his behalf that the charge was defective. The time to object to the so-called defects in the omission of “forgery” and “cheque” in the charge was on 19-05-2015, immediately after the charge was read to the Appellant, that is, if he was indeed misled by the purported omission. An objection on appeal is a waste of time and contrary to the clear provision of Section 167 of the Criminal Procedure Act. Any supposed omission in the charge and the use of words which though, were a part of the statute but used interchangeably and in the alternative by use of the disjunctive word “or”, did not prejudice the Appellant as to occasion any miscarriage of justice sufficient to void his trial and conviction. I therefore agree with learned Counsel for the 1st Respondent that any perceived irregularity in the charge did not prejudice the Appellant as to occasion any miscarriage of justice to him.

The authorities are consistent in stating that any defect in stating the offence or particulars thereof comes within the saving provision of Section 166 of the Criminal Procedure Act, and the complaint or objection to the charge is belated in view of Section 167 of the Act. This more so as in the instant case, where the accused was ably represented by Counsel. He cannot sit back and expect to use any such defect as a trump card or ace to be used in later proceedings, such as in an appeal. See Timothy V FRN (2012) LPELR-SC.129/2007; Obakolor V State (1991) 1 NWLR (Pt. 165) 113; Essien V COP (1996) 5 NWLR (Pt. 449) 489. 

Learned Counsel for the Appellant before the lower Court had every opportunity to raise an objection at the trial Court when the charge was amended. This he failed to do. He cannot therefore be heard to complain here. Where a charge is defective, an accused has an unfettered right to object to it. This is because where an accused person pleads not guilty to a charge, he will be deemed to have put himself up for trial. The law is that any objection to a defective charge must be taken immediately after the charge has been read to the accused and not any time after. This is applicable whether the charge is a fresh or an amended charge, as it will be too late in the day for an accused to challenge his conviction on the ground of a defect on the charge at the appellate court, unless the defect complained of is so material as to lead to a miscarriage of justice or goes to jurisdiction and competence of the trial court. This has been the position of the law as articulated by the Supreme Court in Rasheed V The State (2014) LPELR-CA/EK/98C/2013; & Amadi V FRN (2008) 12 SC (Pt. 11) 15; Ayeni V State (2011) LPELR-CA/AE/C.27/2010; Shekete V The Nigeria Air Force (2007) LPELR-CA/L/48/2003. 

In addition, it is not the business of the Court to provide an escape route for the Appellant as strenuously urged on his behalf. The Appellant did not raise any objection as to any error or defect in the charge when it was read to him. He was ably represented by counsel who is presumed to know the law, and he did plead unequivocally to the charge. I agree with learned Counsel for the 1st Respondent that the objection has come too late. As stated above, the Appellant has also tried to cling onto the principle of fair hearing under Section 36(6) & (12) of the Constitution. I cannot fathom any violation of these provisions being touted on behalf of the Appellant, as clearly the Appellant was never misled by any perceived omission in the charge.

Besides, it is not every irregularity that can nullify entire proceedings. An irregularity which does not materially affect the merits of the case or engender a miscarriage of justice or that in any case it was much too late for the other party to complain about such irregularity will not be countenanced. In the case at hand, the Appellant did not complain about the alleged defect in the charge until the suit was on appeal to this Court. He took part in all proceedings before the trial Court, thus in my humble view, it is too late in the day for him to complain. See Kossen (Nig) Ltd V Savannah Bank of Nig. Ltd (1995) LPELR-SC.209/89.

The main argument under issue two is rested on the plank that the learned trial Judge suo motu raised the issue of whether the charge against the Appellant could stand without the ingredient of forgery stated therein when it was an essential part of the substantive law under which the Appellant was charged, tried and convicted. That she proceeded to make findings on this issue without inviting counsel to address the court on it, thereby, breaching the right of the Appellant to a fair hearing. The 1st Respondent’s answer to this is simple. He contends that it was the Appellant’s Counsel who raised this issue of forgery being a necessary ingredient of the offence, which led the lower Court to make findings thereon in its Judgment. Therefore, that the issue was not raised suo motu by the lower Court. In the light of these arguments, I have closely examined the printed record of the lower Court and I find that the submissions of learned Counsel for the Appellant is not borne out by the Record. In the Appellant’s final written address before the lower Court, spanning pages 14-40 of the printed Record, the Appellant formulated two issues for the consideration of the lower Court. Under issue one, specifically at pages 30 to 32 thereof, learned Counsel for the Appellant submitted that the prosecution failed to prove that the bank drafts, by which it alleged that the 2nd and 3rd Respondents paid money into the BBB Project account, were forged or false. He further submitted that the forgery or falsity of the instrument by virtue of which payment is made, is an essential and integral part of the law within the contemplation of Section 1(2) (b) of the Miscellaneous Offences Act Cap M17, Laws of the Federation, 1990. Consequently, that the prosecution must prove that the said bank drafts were forgeries or false drafts. He even went on to set out the ingredients for the proof of forgery and reeled out some authorities on the point, chief among which was Alake V State (1991) 7 NWLR (Pt. 505) 567. He raised the query: 

“The question to ask at this stage is this: based on the evidence before the Court, has the prosecution established that the Habib Bank drafts are forged?” 
He proceeded to answer his rhetorical question in the following way (at page 31 of the Record):

“We submit my lord, that throughout the length and breadth of the oral and documentary evidence before the Court, there is no scintilla of evidence led in proof of this element of the offence. The prosecution has therefore failed to prove that the drafts are forgeries or false.”  
In a direct response to this submission, the 1st Respondent submitted in its final written address inter alia thus (at pages 56-57 of the Record):

“The 3rd defendant in its written address had erroneously opined that the fulcrum of Section 1(2) (b) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation, 2004 which created the offences in counts 3 and 4 of the amended charge relate to forging and uttering negotiable instruments [the heading of the section] and went on to suggest that for the prosecution to sustain those counts, it had to implicitly proof (sic) forgery and uttering negotiable instruments. We submit with utmost respect to the learned Counsel that he was under misapprehension that forgery and uttering had to be proved before counts 3 and 4 can be proved. All the prosecution was expected to establish is, the forgery or falsity of the cheque used, which we had aptly demonstrated already.”

He further relied on Section 3(2) of the Interpretation Act, Cap 123 LFN, 2004 to submit that the heading or marginal note to an enactment does not form a part of the enactment and is intended for convenience of reference only. It was therefore based directly on the issue of whether or not forgery was a necessary ingredient to be proved by the prosecution that the lower Court weighed in to resolve the issue in its Judgment, particularly at pages 276 to 279 of the Record. It relied on Section 151(4) of the Criminal Procedure Act, Cap C41 LFN 2004, Section 195 of the Administration of Justice, Act, 2015 and Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 55-56 per Ngwuta, JSC. The learned trial Judge, after considering the issue, rightly resolved it thus in these terms inter alia:

“Therefore, the onus or the burden on the prosecution in this case is to prove the ingredients of the offence as laid in the charge and not all the ingredients of the offence as stated in the section creating the offence. This is quite common sense because as it can be seen, the section creating the offences has given wider circumstances under which an offence can be charged under the section. It is not logical to say the prosecution must prove all the circumstances that an offence can be committed under the creating section, unless all the ingredients in the section are laid in the charge. Applying the principle of law said (sic) down by the Supreme Court above to this case now before me, prosecution must prove the ingredients of the offence as stated on the amended charge dated 27th April, 2015... Forgery is not stated as part of the ingredients of the offences of (sic) the defendants are charged with. There is no obligation placed on the prosecution to prove this ingredient not included in any of the four counts charge.”

In view of all the above it is apparent that the Appellant is at best mistaken in his perception of the sequence of events before the lower Court when he accused the learned trial Judge of suo motu deciding an issue that was not placed before her, and without inviting parties to address it on the issue. I sustain the stand taken by the trial Court without any equivocation. To cut a long story short, I resolve issues (i) and (ii) in favour of the 1st Respondent. 

Issues (iii) and (iv):

iii)    Whether the Judgment of the trial Court ought to be set aside having been based on wrongfully admitted exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B to convict the Appellant in the instant appeal.

AND 

iv)    Whether there is any admissible evidence before the trial Court to establish the fact that the Appellant authorized the issuance of the two cheques (Exhibits 71A & 71B) if admissible at all in the instant appeal.
Learned Counsel for the Appellant contends that the lower Court heavily relied on Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B, which are inadmissible, to convict the Appellant. He contends that Exhibit PW6B, the extra-judicial statement of the 1st accused person made to officers of the EFCC, is a public document which, by virtue of Section 102 of the Evidence Act, 2011, needed to be certified before it could be admissible in evidence. Similarly, that Exhibits PW6C1 and PW6C2, being statements of accounts prepared by bankers and generated from a computer, were inadmissible because:

a)    the documents were initially withdrawn after an objection was taken to their admissibility, and should have been rejected in evidence;
b)    without laying foundation, they were re-tendered through PW6 who was not their maker, and admitted in evidence contrary to Section 83 of the Evidence Act (supra);
c)    they were made from entries in a banker’s book and the conditions for their admissibility as laid down in Section 90(1) (e) of the Evidence Act (supra) were not met; and
d)    there is no competent certificate of compliance showing that the said documents are admissible under Section 84 of the Evidence Act (supra), notwithstanding the purported certificate attached thereto. 

Regarding Exhibits PW7A and PW7B, Counsel submits that they were cheques tendered through a witness who was before the lower Court on a subpoena; as such the Appellant was not afforded an opportunity to cross examine the makers of the documents and this was contrary to Sections 83 and 85 of the Evidence Act (supra), and it breached the Appellant’s right to fair hearing.

Counsel therefore submits that the reliance of the lower Court on these exhibits to convict the Appellant occasioned a miscarriage of justice. However, in the event that any of the exhibits are admissible, the lower Court ought not to have attached any weight to them. For these submissions, Counsel relies on the following authorities: GTB Plc V TBIK Inv. Ltd (2005) 13 WRN 25 at37, 40-41; Oguntayo V Adelaja (2009) ALL FWLR (Pt. 495) 1626 at 1650; Jallco V Owoniboys (1995) SNCJ 256; (1995) 4 NWLR (Pt. 391) 534 at 546, paras G-H; Opolo V The State (1977) ALL NLR 312 at 316; Narindex Ltd V NIMB Ltd (2001) 4 SCNJ 208; (2001) 26 WRN 83 at 97; IBWA Ltd V Imano Ltd (2001) 3 SCNJ 160; (2001) 17 WRN 1 at 18-19; UBN V Dawodu (2003) FWLR (Pt. 180) 1487 at 1497, paras E-H; People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H; Oseni V Oniyide (1999) 13 NWLR (Pt. 634) 258 at 271-272, paras A-A; Kola V Potiskum (1998) 3 NWLR (Pt. 540) 11 at 15-16, paras G-F; Adenuga V Okelola (2008) ALL FWLR (Pt. 398) 292 at 307; (2008) 15 WRN 69 at 86; Fatilewa V State (2008) 12 NWLR (Pt. 1101) 518 at 529, paras D-G; Olayinka V State (2007) 45 WRN 147 at 168. He urged the Court to resolve issue three in favour of the Appellant.

In response, learned Counsel for the 1st Respondent submits that relevancy is the cardinal principle that governs admissibility of documents. Once evidence is probative of the facts in issue, it is considered to be relevant and therefore admissible. He argues that Exhibit PW6B, an extra judicial statement to the EFCC, comes within the purview of admissible documents under Section 48 of the Evidence Act (supra). In the event that it is found to be a public document within the realm of Section 102 of the Evidence Act (supra), Counsel submits that, by virtue of Sections 85, 86(1) and 88 of the Evidence Act, public documents in their original form are admissible as primary evidence. Sections 89 (e), 90(1) (c) and 104 of the Evidence Act (supra) relates only to secondary evidence of a public document, and is thus not applicable to Exhibit PW6B.

In respect of Exhibits PW6C1 and PW6C2, (Guaranty Trust Bank Plc statements of accounts for the  BBB Project account and the 2nd Respondent’s account respectively), they were first sought to be tendered through PW5, but were withdrawn by the 1st Respondent without joining issues to the objection raised by the Appellant`s Counsel. The submission that, at this juncture, the document should have been rejected, is not in tandem with the decision of the Supreme Court in Oguntayo V Adelaja (2009) 15 NWLR (Pt. 1163) 150 at 173, paras F-G, 191 paras D-G, relied upon and wrongly misapplied by the Appellant.

Counsel submits that the documents were later re-tendered through PW6, one of the investigating Police officers, after proper foundation had been laid, in compliance with Section 84(4) of the Evidence Act (supra). Substantial compliance with Section 90(1) (e) of the Act (supra) is what is required. Also, Section 83(2) of the Act (supra) provides for circumstances when documents may be tendered through persons who are not their makers; and Exhibits PW6C1 and PW6C2 complied with the conditions in this provision. The evidence of PW6 stating that the investigative team wrote letters of investigative activity to GTBank Plc requesting for Exhibits PW6C1 and Exhibits PW6C2 and such were received from the Bank, was sufficient foundation to their origin, more so that GTBank Plc, the maker of the documents, provided a certificate of identification through its compliance officer, which is sufficient compliance with Section 84(4) of the Evidence Act (supra). These certificates of compliance issued for Exhibits PW6C1 and PW6C2 contained the names of the respective account owners and account numbers of the respective accounts, therefore giving sufficient identification to in respect of the accounts referred to. Consequently, the Exhibits were admissible and rightly admitted in evidence by the lower Court.

As for Exhibits PW7A and PW7B, original copies of Habib Bank cheques in the sums of N31.5 million and N25.5 million tendered by an official of the Bank on subpoena, Counsel submits that by virtue of Section 218 of the Evidence Act (supra) such documents which relate to facts in issue, are validly admitted and not merely for identification purposes, but to assist the Court in deciding the case before it. He points out that, secondary copies of these cheques were already before the lower Court, having been tendered through PW1 as part of Exhibits PW1A and PW1B. Therefore, the trial Court by admitting Exhibits PW7A and PW7B in evidence, acted in substantial compliance with Sections 83, 85 and 218 of the Evidence Act (supra). Further, although the Appellant was unable to cross-examine the PW7 who produced the said cheques on subpoena, (Section 219 of the Act (supra), the Appellant cross-examined other prosecution witnesses, i.e. PW1, PW4 and PW6, on Exhibits PW1A and PW1B which had secondary copies of Exhibits PW7A and PW7B attached to them. Thus, the Appellant cannot complain that his right to fair hearing had been breached. 

Counsel therefore submits that Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B were tendered and admitted in evidence in substantial compliance with the law, and no miscarriage of justice has been occasioned to the Appellant. He urged the Court to resolve issue three in favour of the 1st Respondent.

In respect of issue four, learned Senior Counsel for the Appellant submits that, even assuming Exhibits PW7A and PW7B were admissible, there is no further evidence to show that the Appellant authorised their issuance. The trial Court took into account only the aspect of the evidence of the PW4 where he stated that the money in the two cheques were not used for the purpose for which they were meant; and ignored the other aspect which was favourable to the Appellant to the effect that all the twenty-one Local Government Chairmen, not the Appellant, decided that the money be transferred to the 2nd Respondent. Also, by the evidence of PW4 as well as that of PW1, it was the Permanent Secretary of the Ministry of Local Government and Chieftaincy Affairs, the accounting officer, who authorised the payments. This officer was not called as a witness to testify as to whether or not it was the Appellant who gave him the instruction to transfer the money on the two cheques to the 2nd Respondent. This is more so as no minutes of meeting were tendered to show that the Appellant chaired the meeting and authorised the issuance of the cheques to the 2nd Respondent. Counsel therefore submits that there was no evidence before the lower Court to link the Appellant with the transfer or diversion of funds to the 2nd Appellant.

Also, Senior Counsel contests the acceptance by the lower Court of the evidence of PW6 that no money leaves the Joint account without the Appellant’s authorisation on the basis that he was not cross-examined on the point. He says this has breached his right to fair hearing. In addition, oral evidence is not admissible to prove the contents of a document. Furthermore, that Section 167 (d) of the Evidence Act (supra) should be invoked against the 1st Respondent for its failure to tender the certificate and letters of authorization stated by PW6 which showed that the Appellant signed or approved any withdrawal for Adamawa State Local Government Joint Account (JAC), and the petitions received by EFCC which formed the basis of the complaint. Counsel contends that the evidence of PW6 is inadmissible hearsay of what the investigation revealed, having testified as part of a larger investigative team, and not being an eyewitness to the events he testified to.

Counsel therefore submits that there is no direct and credible evidence to show that the Appellant authorised the issuance of the cheques; and that the circumstantial evidence relied upon by the lower Court is not cogent, credible, reliable, admissible, adequate and compelling enough to support the lower Court`s inference that the Appellant authorised the issuance of the two cheques. Reliance was placed on the following decisions for these submissions: Tegwonor V State (2008) 1 NWLR (Pt. 1069) 630 at 664, paras E-F; Adeyemi V State (2011) 5 NWLR (Pt. 1239) 1; Fagbenro V Arobadi (2006) 19 WRN 1 at 35; Nwocha V State (2002) 9 NWLR (Pt. 1306) 571 at 589, paras C-F; The People of Lagos State V Umaru (supra) at 612, paras A-B and F-G; Uwagboe V State (2006) Vol. 51 WRN 119 at 141; Fagbenro V Arobadi (supra); Green V Green (supra); Dairo V UBN Plc (supra); Omega Bank Plc V Government of Ekiti State (supra); Archibong V State (2007) 14 NWLR (Pt. 1000) 349 at 376, paras B-E; Ukorah V State (1977) 4 SC (Pt. 111) 167 at 117-118. He urged the Court to resolve issue four in the Appellant`s favour.

In response, learned Counsel for the 1st Respondent submits that the prosecution adduced ample evidence to show that the Appellant authorised and was in fact aware of the issuance of the cheques, Exhibits PW7A and PW7B. Relying on the evidence of PW1, PW6 , DW2 (the Appellant) and DW3 (under cross examination), he submits that the Appellant was the Commissioner for Local Government and Chieftaincy Affairs/Chairman of the Adamawa State Local Government Joint Account Committee (JAC) meetings where decisions were taken to deduct the said monies for development projects. Exhibit PW5A discloses that the GTBank account of 2nd Respondent was opened in September, 2002 when the Appellant occupied these positions, and this fact was corroborated by PW4. PW4 also stated that it was the late Permanent Secretary, who doubled as the Secretary of the said Adamawa State LGs Joint Account (JAC) Committee, who directed him to endorse Exhibits PW7A and PW7B to pay the monies into the 2nd Respondent’s account, where the Appellant was the sole signatory. This was instead of the purpose for which the money raised in the vouchers (Exhibits PW1A and PW1B) were meant for, to wit: to assist INEC with the voters’ registration exercise and for the purchase of vaccines as a Joint Development exercise. For this, he relied on the evidence of PW1 and PW4. He contends that the decision not to raise the cheques in the name of the 2nd Respondent from the onset was because the diversions were fraudulent and the Appellant needed to conceal his track. 

Also, that by Exhibit PW5A, the account opening documents which consist of the mandate card, Memorandum & Articles of Association, and other documents of GTBank Plc, the Appellant was and is still one of the Directors/Chairman of the 2nd Respondent. The 1st Respondent also proved that the Appellant is the sole signatory of the account of the 2nd Respondent vide the evidence of PW5 and PW6, and that of the Appellant himself as DW2, as well as DW4, both under cross-examination. In view of these admissions, the Appellant cannot be absolved of causing the payment and receipt of the monies into the 2nd Respondent’s account, and the subsequent transfer of same into the account of BBB Project, when such movements and transfers could not have been effected without the authorisation of the Appellant. Also, the evidence of the PW6 on the outcome of his investigation revealed the status of the Appellant, as a result of which he authorises all expenditures and disbursements from the Ministry’s account. It also revealed that the 2nd Respondent did not execute any contract for the Ministry, other than that evidenced by Exhibit PW4A worth N10 million. The evidence of PW6 was not controverted or challenged under cross-examination by the Appellant, who was at all times represented by Counsel, nor by the Appellant himself either under cross-examination or while testifying in chief as DW2. Counsel submits that the trial Court was therefore right when it discountenanced the arguments of Counsel to the Appellant on facts not controverted under cross-examination but raised in his final written address, and this has not breached the Appellant’s right to fair hearing. He argues that the submissions of Counsel, no matter how brilliant and persuasive, cannot take the form of evidence.

Additionally, Counsel submits that the testimony of PW6 on his findings as an investigation officer who was part of the team that investigated the case was direct, cogent and admissible. It also substantially corroborates the testimonies of the PW1, PW4, PW5 and DW2 under cross-examination that the Appellant was the Chairman of the Adamawa State Local Governments Joint Account Committee, and that he authorised disbursements from the Ministry’s account by virtue of his position as Commissioner for Local Governments. He urged the Court to hold that the endorsements at the back of Exhibits PW7A and PW7B which falsified the reason why Exhibits PW1A and PW1B were raised, could not have been made without the knowledge and authorisation of the Applicant.
In answer to the submission that the Court should invoke Section 167 (d) of the Evidence Act (supra) for the failure of the 1st Respondent to call the Permanent Secretary of the Ministry of Local Government (who had died even before the trial) to testify and tender documents which showed that the Appellant signed or approved withdrawals from the Adamawa State Joint Account Committee, Counsel submits that it is misconceived and erroneous. PW6 testified to these facts which were discovered during their investigations, that the Appellant chaired the LGs JAC meetings when decisions to raise the vouchers for Exhibits PW1A and PW1B were taken; and the Appellant elected not to cross-examine him on it. He distinguished this case from the case of The People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H relied on by the Appellant in respect of withholding of evidence.

On the contention that the evidence of PW6 amounted to inadmissible hearsay for the fact that he was not the only Police officer who investigated the case and that the 1st Respondent failed to call other team members, Counsel submits that it is superfluous and should be discountenanced. The 1st Respondent was not bound to call every available witness in proof of its case. In arriving at a conviction in criminal cases, the court is concerned with whether or not there is sufficient credible evidence of probative value, and not concerned about the number of witnesses called on any given issue. For all these submissions, Counsel relied on the following authorities: Dagash V Bulama (2004) 14 NWLR (Pt. 892) 144 at 241, paras G-H; Oforlette V State (2000) 12 NWLR (Pt. 681) 415 at 436, paras C-E, 437, para B (SC); State V Femi Oladotun (2011) 6 NCC 428 at 443, paras B-H; Nig. Arab bank Ltd V Femi Kane Ltd (1995) 4 NWLR (Pt. 387) 100 at 106; Chukwujekwu V Olalere (1992) 2 NWLR (Pt. 221) 86 at 93, para A; Ochiba V State (2011) 48 NSCQR 1 at 22-23, paras F-H, A-B; The People of Lagos State V Umaru (2014) 7 NWLR (Pt. 1407) 584 at 612-613, paras H-H; Garko V State (2006) 6 NWLR (Pt. 977) 524 at 542, paras B-E; & Eke V State (2011) 6 NCC 1 at 14, para F.

In a reply on points of law, learned Counsel for the Appellant in his Reply Brief, sought to distinguish the decided authorities relied on by the 1st Respondent on the subject of: (a) the admissibility of original copies of public documents as primary evidence of same, as opposed to the admissibility of secondary evidence of public documents; (b) substantial compliance with Section 90(1) (e) of the Evidence Act (supra); (c) documents tendered through subpoena having no evidential value in the absence of the subpoenaed person testifying as a witness; and (d) presumption of withholding of evidence. Instead, he relied on the following additional authorities as being relevant for a resolution of the respective issues: Olley V Tunji (supra); Famakinwa V Unibadan (1992) 7 NWLR (Pt. 255) 608 at 623, paras G-H; Anatogu V Iweka II (supra); & UBA Plc V G.S. Ind. (Nig.) Ltd (2011) 8 NWLR (Pt. 1250) 590 at 621.

 As additional submissions, learned Senior Counsel submits that the 1st Respondent did not show that it complied with any of the requirements in Section 90(1) (e) of the Evidence Act (supra) with regard to the admissibility in evidence of the statements of accounts, Exhibits PW6C1 and PW6C2. Also, while agreeing with the 1st Respondent that the submissions of counsel cannot replace evidence, Senior Counsel submits that the submissions on the inadmissibility of evidence, evidence being hearsay, and the invocation of the principle of withholding evidence, are not issues of evidence but issues of law which can be canvassed in a written address, as has been done by the Appellant.

Findings: 
Section 102 of the Evidence Act, 2011 provides inter alia as follows:

“The following documents are public documents – 
(a)    documents forming the official acts or records of the official acts of – 
(i)    the sovereign authority,
(ii)    official bodies or tribunals, or
(iii)    public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b)    public records kept in Nigeria of private documents.
Thus, by a combination reading of Sections 102, 105 and 106 of the Evidence Act, documents emanating from such public authorities as the Police, INEC, and the like, are public documents. Hence, only the original or the certified true copies of such documents are admissible in evidence. In the absence of original copies, only certified copies thereof are admissible. See Okocha V INEC (2010) LPELR-CA/B/EPT/1321/109, 1 at 55-56; Kwara State Water Corp. V AIC (Nig) Ltd (2009) ALL FWLR (Pt. 485) 1738 at 1765-1767; Dagash V Bulama (2004) ALL FWLR (Pt. 212) 1666; Matori V Bauchi (2004) ALL FWLR (Pt. 197) 1010; Araka V Egbue (2003) FWLR (Pt. 175) 507; Onobruchere V Esegine (1986) 1 NWLR (Pt. 19) 799 at 808.

Thus, Section 102 of the Act (supra) sets out the categories of public documents. As indicated earlier, learned Senior Counsel for the Appellant contended that only certified true copies of these categories of documents are admissible. Unarguably, this contention does not represent the position of the law on this point. Indeed, this submission stems from a superficial reading of Section 90(1) (c) of the Evidence Act, 2011. The judicial interpretation of the nuances of this provision is that, the only pieces of secondary evidence of public documents that are admissible in respect of the original documents, (of course original documents themselves are admissible), are certified true copies – (Iteogu V LPDC (2009) 17 NWLR (Pt. 1171) 614 at 634; Onubruchere V Esegini (1986) 1 NSCC 343 at 350). Put differently, in the absence of the original documents themselves, only such properly certified copies are admissible as secondary copies of public documents, and no other kind of secondary evidence. Consequently, the issue as to whether a document needs certification relates to the admissibility of secondary evidence of an original document, and not as it concerns the original document itself. See: Abdullahi V FRN (2016) LPELR-SC.288/2012 1 at 24-27, paras A-E, per Nweze, JSC; G. & T.I. Ltd V Witt & Bush Ltd (2011) LPELR-1333(SC) 42; Tabik Investment Ltd V GTB Plc (2011) 6 MJSC (Pt. 1) 21; Iteogu V LPDC (supra); Dagaci of Dere V Dagaci of Ebwa (2006) 30 WRN 1; Araka B Egbue (20003) 33 WRN 1. 

Under the provisions of Section 94(1) of the Evidence Act, the original of a document is what is known as primary evidence, while a copy of the original document is known as secondary evidence of the original – see Section 97(1) of the Evidence Act. The exception where secondary evidence may be given and admitted of the existence, condition or contents of the original document is (a) where the original is shown or appears to be in the possession of the person against whom the document is sought to be proved, or (b) any person legally bound to produce it and does not produce it despite being served with notice as stated in Section 98 of the Act or (c) the original is a public document within the meaning of Section 102 of the Act, in which case the secondary evidence admissible, is a certified true copy. Thus, only the certified true copy of a public document is admissible in evidence as secondary evidence. The dispute here is whether Exhibit PW6B is a public document requiring certification.
In the case of Tabik Investment Ltd V GTB (2011) ALL FWLR (Pt. 602) 1592 at 1607, the Supreme Court held that a private petition sent to the Police formed a part of the record of the police and consequently is a public document within the provisions of Section 109 (now Section 102) of the Evidence Act. It stated thus:

“By the provision of Section 318(b) of the Constitution of the Federal Republic of Nigeria, 1999 and Section 18(1) of the Interpretation Act, a police officer is a public officer and so all documents from the custody of the police, especially documents to be used in Court, are public documents.”
Equally, in the recent case of Aromolaran V Agoro (2014) 18 NWLR (Pt. 1438) 153, the Apex Court again held that a letter written to a Governor of a State in his official capacity by a person who is not a government official, is a public document because it is a public record kept in Nigeria of a private document which comes under the provision of Section 102 of the Evidence Act. Given all these, PW6B, the extra-judicial statement of the Appellant produced by the prosecution from the custody of the EFCC, is unwaveringly an original of a public document. However, being the original of the document itself, it is primary evidence which does not require certification.
In respect of Exhibits PW6C1 (the statement of account of BBB Project with Guaranty Trust Bank) and PW6C2 (the statement of account of Al-Akim Investment Ltd with Guaranty Trust Bank), Sections 89 and 90 of the Evidence Act, 2011 provide as follows:
“89. Secondary evidence may be given of the existence, condition and contents of a document when – 
(h) the document is an entry in a banker’s book.
90 (1) The secondary evidence admissible in respect of the original document referred to in the several paragraphs of section 89 is as follows:
(e) in paragraph (h), the copies cannot be received as evidence unless it is first proved that – 
(i) the book in which the entries copies were made was at the time of making one of the ordinary books of the bank,
(ii) the entry was made in the usual and ordinary course of business,
(iii)the book is in the control and custody of the bank, which proof may be given orally or by affidavit by an officer of the bank, and

(iv)The copy has been examined with the original entry and is correct, which proof must be given by some person who has examined the copy with the original entry, and may be given orally or by affidavit.”

It is trite law that there are certain types of evidence, such as hearsay and unstamped and unregistered documents, which are inadmissible per se and which cannot form the basis for a decision. An objection to these may be taken at any stage of a trial by any of the parties or at the instance of the court, or even on appeal. However, Section 90 creates an exception wherein it makes certain documents admissible under certain conditions. With particular reference to Section 89 (h) and 90(1) (e), copies of entries in banker’s books are admissible in evidence under certain conditions. The fulfillment of that condition shall be by oral or affidavit evidence showing that the Exhibits are extracts from a Banker’s book, kept by the banker and that the figures copied out had been compared with the original and found to be correct. 

In considering the admissibility of entries in books of or statements of account, Sections 51, 84, 89 and 90 of the Evidence Act, 2011 are relevant. Section 51 of the Act makes admissible entries in books of account or electronic records regularly kept in the course of business admissible whenever they refer to a matter into which the court has to inquire. However, the same section provides that such statements alone shall not be sufficient evidence to charge any person with liability. Under Section 89 (h), secondary evidence of the existence, condition or contents of an entry in a banker’s book is also admissible. The admissibility of such an entry is, however, subject to the fulfillment of the conditions stipulated under Section 90(1) (e). Section 84 allows for the admissibility of a statement contained in a document produced by a computer, banking practices having emerged from the days of parchment and weighty paper and thus entries in “account books” to computer or electronic records. It follows therefore that all statements of accounts emanating from banks these days are invariably computer generated.
It has been held that in an attempt to satisfy the conditions stated in Section 90 (i)-(iv), the evidence of such is not required to be a verbatim reproduction of the facts in the section. It is sufficient that the provisions are substantially complied with. In Yesufu V ACB (1976) LPELR-SC.542/1975; (1976) NSCC 202 at 206, the Supreme Court, per Fatayi-Williams, JSC, held thus:

“It is not the length of evidence given in tendering a bank statement of account that matters but the substance of the evidence given; nor is it compulsory that the precise words set out in Section 97(2) (e) should be used by the witness or the judge taking down his evidence. It is enough that substantially the requirements of the section are observed.”

Section 97(2) (e) of the Evidence Act referred to therein, is in pari materia with Section 90(1) (e) of the Evidence Act, 2011. See also Kubor V Dickson (2012) LPELR-9817(SC); Yassin V Barclays Bank DCO (2001) FWLR (Pt. 44) 21; & IBWA V Imano Nig. Ltd (1988) 3 NWLR (Pt. 85) 633.
In the instant case, it is as plain as a pikestaff that Exhibits PW6C1 and PW6C2, bank statements electronically generated from GT Bank Plc, do not come within the class of documents which are inadmissible in evidence in any event, in law. Instead, under Sections 84 and 90 of the Act (supra), they are admissible under certain conditions. See Kossen (Nig) Ltd V Savannah Bank of Nig. Ltd (1995) LPELR-SC.209/89; Oguma Associated Companies (Nig) Ltd V IBWA Ltd (1988) LPELR-SC.69/1986. The simple question that must now be answered is, whether these conditions were met before they were admitted by the lower Court. 

There was indeed an initial attempt to tender the documents through PW5, the branch Manager of GT Bank Yola. However, the documents were subsequently withdrawn before the decision of the lower Court could be rendered on same, and subsequently re-tendered through PW6. PW6, the police investigator, after testifying and laying proper foundation as to how he applied for the documents from the Bank and they were sent to him, once more tendered the documents in evidence. The statements were accompanied by a certificate of identification in compliance with Section 84(4) of the Act. I have examined the certificates of identification annexed to both Exhibits and, at this juncture, it is important to set out their contents:“CERTIFICATE OF IDENTIFICATION I, ELO OSIGHO of Internal Control Group of Guaranty Bank Plc do confirm that the content of the documents for AL-AKIM NIG LTD with account number 361340525110 from the Bank’s system (particulars of same contained in the schedule hereunder)

I also verify as follows:
1.    That the documents containing the statements were produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of and activities regularly carried on over that period.
2.    That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statements or of the kind from which the information so contained is derived.
3.    That throughout the part of that period the computer was operating properly and that the information contained in the statements produces or is derived from the information supplied to the computer in ordinary course of those activities.
...

To the best of my knowledge and belief, I identify that the documents which bear the stamp of the bank and initials of ELO OSIGHO were confirmed and authenticated by me.
I attest to the information produced as being a true and accurate record of what is contained in the banker’s server.
Dated ...

NAME: ELO OSIGHO

POSITION: Internal Control Officer
SIGNATURE: Signed
DATE ...”  
By Section 145(1) of the Evidence Act, 2011, the court should presume every document purporting to be a certificate, certified copy or other document which is by law declared to be admissible as evidence of any particular fact and which purports to be duly certified by any officer in Nigeria who is duly authorised in that behalf to be genuine, provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. See Ukeje V Ukeje (2014) LPELR-SC224/2004; Okelola V Adeleke (2004) 13 NWLR (Pt. 890) 307; Cardozo V Daniels (1986) 2 NWLR (Pt. 20) 1.

I agree with the learned trial Judge that these documents satisfied the relevancy test, which is the hallmark of admissibility (Section 1 (a) & (b) of the Evidence Act); and it met all the requirements of the law as set down in Section 84(4) of the Evidence Act. With regard to the additional requirements for the admission of bank documents under Section 90(1) (e), which requires such documents to be tendered through the maker, granted that such is the ideal, all things being equal. However, in the event that the maker is not available for any reason or his evidence cannot be accessed without undue delay to the proceedings, Section 83(2) (a) of the Act operates to permit the documents to be tendered through another person, other than the maker. In the instant case, PW6, through whom the documents were tendered, was one from the team of police officers which conducted investigations into the allegations against the Appellant. He gave detailed evidence of how he traced the sums of money alleged to have been paid into the 2nd Respondent’s account and the BBB Project account via bank drafts raised from cheques issued (Exhibits PW7A and PW7B) and drawn on the account of the Adamawa State Local Governments Joint Account Fund, which undoubtedly the Appellant chaired. It is based on this, that the learned trial Judge exercised her discretion to admit the documents in evidence. For ease of reference, she stated inter alia as follows (at pages 130-132 of the Record):  

“The two statements of accounts from GT Bank have been duly certified on the face of both of them by the Internal Control Officer of the bank, Mr. Elo Osigho. He has also signed the certificates of identification attached to each statement of account stating in details how the statements were produced from the computers of the bank as required by section 84(4) of the Evidence Act, 2011. In my view this is enough to satisfy the requirement of the law. It will be superfluous and an unnecessary waste of time and cost to insist that the maker must also come to court to tender those document...) (Emphasis supplied)

This finding is in consonance with Section 83(2) of the Evidence Act, which provides for the admissibility of documentary evidence as to facts in issue where the maker is not called as a witness. The provision states as follows:

“(2) In any proceeding, the court may at any stage of the proceeding, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as is mentioned in subsection (1) of this section shall be admissible as evidence or may, without any such order having been made, admit such a statement in evidence notwithstanding that – 

(a)    The maker of the statement is available but is not called as a witness;” (Emphasis supplied)

Evidently, being the master of her Court and finding that, in the circumstances of the case, (in line with Section 83(2)), it would entail undue delay in the proceedings for the PW5 (the Branch Manager) to be re-called to testify, the learned trial Judge exercised her discretion to so admit the documents in evidence. From a calm consideration of the totality of the evidence placed before the trial Court, I am unable to fault this exercise of discretion since, in my humble view, it was judiciously and judicially made. I therefore find that, contrary to the submissions of learned Senior Counsel, Exhibits PW6C1 and PW6C2 were properly admitted in evidence. 

Learned Senior Counsel for the Appellant also faults the admission of two cheques (Exhibits PW7A and PW7B) on the ground that they were merely produced on subpoena and not through the maker of the documents, contrary to Section 83 and 85 of the Evidence Act. He faulted the fact that it was not tendered through one of the makers, PW4. He contends that failure to tender them through the maker to enable the Appellant cross examine him thereon has breached the Appellant’s right to fair hearing. In response, learned Counsel for the Respondent submits that secondary copies of Exhibits PW7A and PW7B had already been tendered along with Exhibits PW1A and PW1B through the PW1. In addition, PW4, admittedly one of the makers of the documents, had since testified in respect of the same cheques. The Appellant therefore had opportunities to cross-examine both witnesses on the cheques, the original copies of which were later put in evidence through a bank official, PW7. He therefore disputed that the Appellant’s right to fair hearing had been breached.

I have given consideration to the submissions of the parties in conjunction with all the facts as reflected in the printed Record of proceedings of the lower Court, and I am hard-put to see how the Appellant’s right to fair hearing was breached or even abridged by the admission of Exhibits PW7A and PW7B in evidence. As was rightly pointed out by learned Counsel for the Respondent, these cheques had all along from the inception of evidence in the case, been before the trial Court and thus were available to be used in cross-examining all seven witnesses presented by the prosecution. Secondary copies of the cheques were tendered through the PW1, along with the vouchers from which they were raised, Exhibits PW1A and PW1B. Thereafter, PW4, (the erstwhile Chief Accountant of the Ministry of Local Government & Chieftaincy affairs at the time when the Appellant was the Commissioner), who testified as being the person who prepared the cheques on the instruction of the Permanent Secretary of the Ministry, and who was one of the two signatories to the cheques, was brought before the Court as a witness (pages 88-92 of the Record). The Appellant had ample opportunity to cross-examine this witness and he exercised this right quite vigorously, as the Record of court discloses. His complaint in this respect is therefore nothing but a trifling, and diversionary of the substantial issues that could arise from the case. This is more so that it is also on record, as has even been admitted by the Appellant himself, that the second signatory to the cheques (Exhibits PW7A and PW7B), to wit, the Permanent Secretary of the Ministry of Local Governments & Chieftaincy Affairs (when the Appellant presided as Commissioner), had since died even before the commencement of the trial. How then could he have been called to tender the documents in evidence? The next best thing to do was to call the person who prepared the cheques and also signed them. This was rightly done, thus providing the Appellant with plentiful opportunity to exercise his right to a fair hearing, as is being canvassed here. In fact, this is a classic case of a situation where the proviso to Section 83(1) of the Evidence Act could be invoked. For avoidance of fact, it provides:

“(1) In a proceeding where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied – 
(a)...
(b)...

Provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, ...)” (Emphasis supplied)

As a matter of fact, the maker of the documents in the instant case was the PW4. PW4 and the late Permanent Secretary were the signatories to the cheque. But even in the event that the Permanent Secretary was a necessary witness, he was already deceased, and that is an act of God that no-one can do anything about. Thus, Section 83(1) of the Act (supra) operates to enable the documents to be admitted in evidence. In consequence, I find no substance in the complaint of the Appellant that the failure to tender Exhibits PW7A and PW7B through their maker denied him fair hearing and occasioned a miscarriage of justice.

At this point it is important to re-sound a note of caution as once issued by the respected Tobi, JSC in Magaji V The Nigerian Army (2008) LPELR-1814(SC) 1 at 40 of the E-Report:

“It has become the fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all inadequacies at the trial court. But it is not so and cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application and applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”

The facts of the case do not support the invocation of the principle of fair hearing in favour of the Appellant because I do not see where the Appellant’s right to fair hearing was violated and/or contravened. On the whole, I am of the view that, given the entire circumstances of the case as reflected on the printed Record, and in line with the substantive law and various legal authorities on the subject, the learned trial Judge acted rightly in admitting Exhibits PW6B, PW6C1, PW6C2, PW7A and PW7B in evidence. Issue three is therefore resolved in favour of the Respondent. 

Under issue (iv), learned Counsel for the Appellant has submitted that that there is no admissible evidence before the trial Court to establish that the Appellant authorised the issuance of the two cheques, Exhibits PE7A and PW7B. He contends that the circumstantial evidence adduced was not cogent, credible, reliable, admissible, adequate and compelling enough to support the inference of the trial Court that the Appellant authorised the issuance of the cheques. In response, the Respondent has submitted that there was sufficient and admissible evidence before the trial Court to establish the fact that the Appellant authorized and was aware of the issuance of the cheques, Exhibits PW7A and PW7B. He placed reliance on the evidence of PW1, PW4, PW5, and PW6, as well as the evidence in defence by the Appellant himself as DW2 as well as DW3. He also relied on documentary evidence tendered in the form of PW1A & PWB2, PW5A & PW5B, and PW71A & PW71B. The learned trial Judge thoroughly analysed the evidence adduced before the Court and arrived at the conclusion that the Respondent had proved the charge against the Appellant.

I have equally subjected the evidence adduced in this regard to a close and careful scrutiny. While I agree that there is no direct evidence stating that the Appellant issued the instructions for the issuance of the two cheques to be paid into the account of the 2nd Respondent and then to the account of BBB Project, I am of the view that the circumstantial evidence adduced was of such a nature that the only reasonable conclusion to be reached is that it was the Appellant who so authorised their issuance. For one, it is the evidence of the PW1, PW4, PW6, as well as that of the DW2 (the Appellant himself) and DW3 that, at the time of the issuance of the cheques, he was the Commissioner for Local Government & Chieftaincy Affairs with the Adamawa State Government. In that capacity, much as he tried to unsuccessfully wriggle out of it, the evidence confirms that he doubled as the Chairman of the Local Governments Joint Account Committee with the Governor of the State, and so he presided over it on a number of occasions. The function of the Committee was stated by these witnesses. Indeed, it was affirmed by the Appellant himself as DW2, (the horse’s mouth, as it were), at pages 165-166 of the Record thus:

“My name is John Babani Elias... When I was Commissioner for Local Government & Chieftaincy Affairs, I was responsible for supervising the Ministry as well as member of the Joint Local Government Allocation Committee... The Chairman of the Committee was the Governor of State, Boni Haruna then. In the absence of the Governor, I sometimes act as the Chairman of the Committee. The Local Government Joint Allocation Committee is responsible for sharing all funds due to Local Government from the Federation Account and any other revenue accruing to the Local Governments from the State... When decisions are taken by the Committee, the Permanent Secretary in the Ministry of Local Government & Chieftaincy Affairs implements the decision of the Local Government Allocation Committee. The signatories of the Local Government Joint Account are the Permanent Secretary ... and the Accountant ...” (Emphasis supplied)

Under cross- examination, DW2 again admitted (at page 167 of the Record) as follows:

“I was a Commissioner for Local Government & Chieftaincy Affairs from November, 2002 to December, 2003. As a Commissioner, I chaired the Local Government joint account committee meetings sometimes not always... It is also true that at the meetings of the joint Local Government account committee, decisions are taken on joint development projects. It is true that in one of the joint Local Government account committee meeting, a decision was taken to contribute money to assist INEC with voter registration exercise... I see Exhibit PW1A, it is a voucher raised to facilitate INEC Voter registration exercise.” (Emphasis supplied)

From the above evidence, it can safely be deduced that the Appellant presided over the meeting in which the decision he referred to was taken. Based on that decision, Exhibit PW1A was prepared. Exhibit PW1A is a payment voucher for the sum of N31, 500, 000.00 prepared on the Adamawa State Local Government Joint Account Committee Fund in November, 2002 and the payee was “Chairman Demsa and 20 Local Government Councils.”  Annexed to this document are photocopies of a cheque issued in the name of the “Manager, Habib Bank Ltd Yola” in the sum of N31, 500.000.00 on 26-11-2002, and the instruction “Pls issued (sic) Draft in favour of AL-AKIM INVESTMENT NIG. LTD payable at Yola”. 

From the documents for the opening of the account of Al-Akim Inv. Nig. Ltd, Exhibit PW5A, as well as the testimonies of the Appellant himself (DW2) and DW4, (present Managing Director of the Company), the Appellant was the Chairman/CEO of the Company as well as its sole signatory. Even though DW2 (the Appellant) and DW4 state that the Appellant resigned and withdrew from his position in the Company after he was appointed as a Commissioner, it is interesting that in the Appellant’s statement to the EFCC, (Exhibit PW6A), he still clearly admitted to having an interest in the company.

What however makes it even more interesting is that monies to the tune of N51.5 million voted for joint developmental projects by the 21 Local Governments in Adamawa State, such as to facilitate INEC Voters Registration exercise, were re-routed and paid into the 2nd Respondent’s account, the account of a company which, by the Appellant’s own admission, he still maintained an interest in, and by the Exhibit PW5 (the account opening papers, mandate paper and memorandum & Articles of Association of the company) he was still the Chairman/CEO. More importantly, he was still the sole signatory to the account. This is in spite of the evidence of the DW4 which alleged that the Appellant had ceased to hold such positions and was no longer the signatory to the account. Even though he goes on to allege that a notification of the changes in the company had been sent to the Corporate Affairs Commission (CAC), which had yet to effect the change, no evidence was adduced to substantiate this. It is the law that oral evidence cannot be given of the contents of documents. I therefore endorse the trial Court’s finding on this.
Now, the question which logically arises is, how did money from the LGs JAC voted for specific developmental projects find their way into a company in which Appellant had clear pecuniary interest and was the sole signatory, at a time when he was also the alter ego of the Local Governments Joint Account Committee as an alternating chairman; and then ultimately make its way into the account of BBB Project Fund, where the erstwhile Governor and co-chairman with the Appellant of the LGs JAC, was also the sole signatory? From the evidence adduced, “BBB” was an acronym for “Bring Boni Back” as Governor of Adamawa State. 

PW1 (the former Chairman of Mayo-Belwa LGC and a member of the LGs JAC along with the Appellant), in his evidence (at pages 82-84 of the Record) stated that the 21 Local Governments agreed to contribute certain monies to assist the Independent National Electoral Commission (INEC) in its Voters’ Registration exercise, and for other joint development projects. Vouchers raised for this purpose were tendered through this witness as Exhibits PW1A and PW1B. PW4, in corroborating the evidence of PW1, also stated inter alia thus (at page 16 of the Record):
“The Local Government Joint Account Committee Chairman is the Commissioner of the Ministry for Local Government, then it was Hon. John Elias (2nd accused) and Late Alh. Abubakar Jidda was then the Permanent Secretary of the Ministry and he was the Secretary of the committee. If the committee took any decision, it is passed to us (staff of the ministry) through the Permanent Secretary of the Ministry.” (Emphasis supplied)

Now, even though he states that it was the late Permanent Secretary, (as Secretary to the Committee vested with the duty of implementing the decisions of the Committee), who instructed him to prepare the vouchers in Exhibits PW1A and PW1B in favour of the 2nd Respondent, they were still expressly supposed to be for the purpose of assisting INEC with logistics during the Voters’ Registration exercise (page 90). Assuming that it was the late Permanent Secretary who indeed authorised the issuance of the cheques for the purpose indicated in the vouchers, how did the amounts so-voted subsequently find their way as contributions into the account of BBB Fund project via the account of the 2nd Respondent? 

In his defence, the Appellant alleges that the sums of money in Exhibits PW7A and PW7B which were cheques raised for the purposes stated in the vouchers Exhibits PW1A and PW1B, was actually 50% redemption of a pledge made by the 2nd  Respondent at a Fund raising event for the return of the Governor to the seat of Government. The evidence of the PW1, PW4 and PW6 buttressed by Exhibits PW1A and PW1B, (the vouchers) which explain the purpose of the attached cheques, gives a lie to this defence. By the same token, they discredit the evidence of the DW4 and the Exhibits DW4A and DW4B. These latter documents tendered through DW4 were clearly procured to buttress the bogus defence put out by the Appellant. The learned trial Judge was right to place no weight on them.  

From all these pieces of evidence, as well as numerous others before the trial Court, it is evident that the 1st Respondent established by credible evidence that it was the Appellant who authorized the issuance of the cheques, Exhibits PW7A and PW7B, which authorization was implemented by the late Permanent Secretary as Secretary of the LGs Joint Account Committee. I therefore also resolve issue (iv) in favour of the 1st Respondent.

Issue (v):

(v)    Whether having regard to the entire circumstances of the Amended Charge, the Judgment of the trial Court delivered more than 90 days is reasonable, supported by weight of evidence and ought not to be set aside in the instant appeal.

Herein, learned Senior Counsel for the Appellant submits that the parties adopted their final written addresses on 6th July, 2015. However, Judgment was not delivered until 4th December, 2015, almost five months thereafter. He contends that the trial Court did not therefore deliver Judgment within 90 days as prescribed by the Constitution (supra), notwithstanding the re-adoption of the written addresses on 17th November, 2015. He explains that the rationale behind the constitutional provision is so that possible misapprehension and wrongful evaluation of evidence due to such delay will not occasion a miscarriage of justice against the Appellant. Where however no such misapprehension of evidence is established, the judgment of a court will not be disturbed. 

Counsel submits that in the instant case, there is such a wrongful evaluation of evidence and misapprehension due to the delay in the delivery of the Judgment which occasioned a miscarriage of justice to the Appellant. He contends that the misapprehension is contained in the alleged wrongful findings of the lower Court under the issues framed and being addressed in this Appeal. He thus adopts his arguments proffered under these issues. Counsel specifically identified the following as errors in the findings of the lower Court which, he contends, shows the misapprehension and wrongful evaluation of evidence due to the delay in the delivery of the Judgment:

1)    The finding at page 280 of the Record where it referred to PW2 as the chief accountant of the Ministry of Local Government and Chieftaincy Affairs, instead of an account clerk in the Ministry;
2)    Contrary to the finding of the lower Court at page 280 of the Record, PW2 did not state that the Appellant chaired the LGs JAC meeting when the agreement was reached to procure vaccines for the Local Governments;
3)    The failure of the lower Court to act on the evidence of the Appellant that the Governor was the substantive Chairman of the LGs JAC meetings; and the insistence that the Appellant chaired the LGs JAC meeting where the contract was awarded to the 2nd Respondent;
4)    Contrary to the evidence of PW1, PW2 and PW4 at pages 82-86 and 88-92, the trial Court came to the wrongful conclusion that the Appellant committed the offences in counts 3 and 4 of the Amended Charge;
5)    Whereas Section 1(2) (b) of the Miscellaneous Offences Act requires that the person must act with intent to defraud Government and caused payment to another person of money by virtue of a forged negotiable instrument, counts 3 and 4, without including forgery, stated that he money was transferred vide drafts (not cheques) while the 1st Respondent tendered cheques;

6)    Contrary to the finding of the lower Court at page 284 of the Record that the monies were deliberately diverted, the 1st Respondent did not charge the Appellant with the offence of diversion; 
7)    There was no admissible evidence that the Appellant diverted any funds to the BBB Project’s account vide drafts or that he supervised the transfer of the sums of money to the 2nd Respondent, as charged;
8)    Failure of the lower Court to believe the evidence of Appellant and DW2 and his exhibits, which were cogent and admissible to show that he did not commit the offences charged; 
9)    Failure to rely on any law in not attaching weight to Exhibits DW4A and DW4B on the basis that Local Governments could award contracts only in the format of Exhibits PW4A, PW1A and PW1B;
10)    Speculating on where the 2nd Respondent got money to execute the contract, in not attaching weight to Exhibits DW4A and DW4B.

Based on all the above and having regard to the entire circumstances of the Amended Charge, Counsel submits that the Judgement of the trial Court delivered more than 90 days is unreasonable, is not fully supported by all the evidence before the trial Court and ought to be set aside.

He submits that the Appellant need not show that he has suffered any miscarriage of justice having established the various breaches of Section 36 of the Constitution (supra). For these submissions, he relies on: State V Azeez (2008) 14 NWLR (Pt. 1108) 439 at 503, para H; Walter V SkyII (Nig.) Ltd (2001) 3 NWLR (Pt. 701) 438 at 474, paras H-A; Fagbenro V Arobadi (supra); Nwocha V State (supra); Abidoye V FRN (supra); Timothy V FRN (supra) at 1152, paras H-A; Tegwonor V State (2008) 1 NWLR (Pt. 1069) 630 at 663, paras G-H. He urged the Court to resolve issue five in favour of the Appellant.

Additionally, while acknowledging that the thrust of Section 294(1) and (5) of the Constitution (supra) provides that a court must deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses, learned Counsel for the 1st Respondent submits that the lower Court complied therewith by delivering Judgment within 90 days as constitutionally prescribed, and also properly evaluated the evidence before it. He argues that the prosecution and the defence adopted their respective final written addresses on Monday 6th July, 2015 and later re-adopted same on Tuesday 17th November, 2015. Thereafter, on 4th December, 2015, the trial Court delivered its Judgment. 

Without conceding that the Judgment was delivered out of the constitutionally prescribed period, Counsel submits that, even were that to be case, it does not ipso facto become a nullity unless a party has suffered a miscarriage of justice consequent as a result of the delay. The emphasis is not so much on the length of time per se, but rather on the adverse effect resulting from the delay. He contends that by delivering its Judgment only seventeen days after the re-adoption of final written addresses, it cannot be said that there was a delay which could have affected the lower Court’s perception, appreciation and evaluation of the case before it, which could have led to a substantial miscarriage of justice.

 This is in spite of the fact that the trial Court referred to the testimony of PW4 as that of PW2. Counsel argues that this slip/error did not occasion a miscarriage of justice, as it has not been shown from the evidence adduced that, had it not been for that minor slip/error, a decision of acquittal would have been handed down to the Appellant. He submits that it is not every mistake or error in a Judgment that necessarily vitiates a Judgment to warrant the intervention of an appellate court. Instead, it must be substantial in the sense that it occasioned or is likely to have occasioned a miscarriage of justice.

Counsel further submits that, from the Amended Charge, the Appellant was certainly not charged for the offence of diversion, but for causing the transfer of money using a negotiable instrument with intent to defraud the Adamawa State Government. This is notwithstanding the fact that the learned trial Judge made reference to the fact that the Appellant, being a public officer at the time of the offence, was committed to a position of trust and that he abused his office in committing the offence.

On the issue of ‘drafts’ as opposed to ‘cheques’ raised by the Appellant in his Brief of argument, Counsel referred to the Amended Charge wherein the Appellant was charged for causing a transfer “... vide a Habib Nigeria Bank Limited draft no. 0873368”. Counsel for the Appellant had based his submission on the fact that the prosecution did not tender any ‘draft’ to link the Appellant to the alleged offence on this clause in the Amended Charge. He however submits that in Black’s law Dictionary, 5th Edition page 215, a cheque is defined as “a draft drawn upon a bank payable on demand, signed by the maker or drawer containing an unconditional promise to pay a sum certain in money to the order of the payee”. Further to this, at page 132 thereof, a ‘bank draft’ is called a ‘cheque’. He therefore submits that a bank draft is equally a cheque.
Finally, Counsel submits that the prosecution tendered two cheques, Exhibits PW71A and PW71B, with endorsements at the back of them stating, “Please issue draft in favour of Al-Akim Ltd payable in Yola”. However, the prosecution proved that the 2nd Respondent, Al-Akim Ltd, was not the end-line beneficiary of Exhibit PW1A and PW1B. Instead, it was demonstrated through Exhibits PW5A, PW5B, PW6C1 and PW6C2 that the values of the cheques were fraudulently lodged in the Appellant’s account and later transferred to the BBB Project account. He relies on: Agbogidi V Okoh (2015) ALL FWLR (Pt. 789) 1107; Eyiboh V Abia (2012) 16 NWLR (Pt. 1325) 51; Onajobi V Olanipekun (1985) 4 SC) (Pt. 2) 152; Gwonto V State (1983) 1 SCNLR 142.

Replying to the issues arising from the 1st Respondent’ Brief, Counsel mostly re-hashed his arguments in the Appellant’s Brief on a miscarriage of justice having been occasioned by the lower Court’s perceived misapprehension of the facts of the case due to its delivery of the Judgement more than 90 days after final written addresses had been adopted. In disagreeing with the submissions of the 1st Respondent that a cheque and a draft are one and the same, he relies on UBA Plc V GS Ind. (Nig) Ltd (supra) at 638-640, and Diamond Bank Ltd V PIC Ltd (2009) 18 NWLR (Pt. 1172) 67 at 100, paras D-E. He again urged the Court to resolve issue five in favour of the Appellant.

Findings:
Section 294(1) of the Constitution provides as follows:

“(1) Every court established under this Constitution shall deliver its decision in writing not later than 90 days after the conclusion of evidence and final addresses and furnish all the parties to the cause or matter determined, with duly authenticated copies of the decision within seven days of the delivery thereof.
(5) The decision of the court shall not be set aside or treated as a nullity on the ground of non-compliance with the provisions of subsection (1) unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.” 

It is necessary to stress the obvious that although courts are expected to deliver their decisions within 90 days after final addresses, where the stipulated time is not complied with either due to force majeure, inadvertence or simply neglect, such decision will not be rendered a nullity unless and until an appellate court seized of the complaint or appeal is satisfied that such late delivery of Judgment has occasioned a miscarriage of justice. This, to my mind, is the true import of Section 294(1) & (5) of the Constitution. See ACB V Ajugwo (2011) LPELR-CA/E/66/2006; Atungwu V Ochekwu (2004) 17 NWLR (Pt. 901) 18; Igwe V Kalu (2002) 5 NWLR (Pt. 761) 678; Olokotintin V Sarumit (1997) 1 NWLR (Pt. 480) 222 at 232.

The spirit behind the ninety-day period in Section 294(1) of the Constitution (supra) is to ensure that the decision of the court is written and delivered when the facts of the case, the inference from the facts and the impression created by the witnesses are still fresh in the mind of the Judge. From the decided cases on the point, the ninety-day period within which Judgment should have been delivered started to run after the first final written addresses of counsel had been adopted, and not when the addresses were re-adopted. There is nothing esoteric in the concept of re-adoption of written addresses as to relieve the court of its duty to strictly comply with Section 294(1) of the Constitution. Instead, by its very nature, the re-adoption of counsel’s addresses is purely and obviously an innovation and contrivance hatched to circumvent the constitutional provision in Section 294(1). It had no effect on the application of the provision, and time certainly began to run from the time the written addresses were first adopted. In any case, although Counsel’s addresses are an essential part of the adjudication process, cases are not ordinarily decided on addresses but on credible evidence before the court. A brilliant final address cannot make up for want of evidence to prove or disprove points in issue. See Okon V Ita (2010) LPELR-CA/C/08/09; Sanyaolu V INEC (2999) 7 NWLR (Pt. 612) 600; Niger Construction Ltd V Okugben (1987) 4 NWLR (Pt. 67) 787; Obodo V Olomu (1987) 3 NWLR (Pt. 590) 111; Ndu V State (1990) 17 NWLR (Pt. 164) 550. 

Now, a miscarriage of justice usually depends on the circumstances of each case. There would be miscarriage of justice when an error can be seen in the proceedings/judgment and, had it not been for the error, a decision more favourable to the party that lost, would have been given. There is a miscarriage of justice when the decision given is inconsistent with established rights of the party complaining. This concept of miscarriage of justice is not speculative or abstract, but must be expressed in concrete terms. Thus, a party alleging miscarriage of justice by reason of delay in the delivery of judgment by a court will not succeed by merely parroting the concept. The acceptable criteria for whether there has been miscarriage of justice by reason of delay in delivering judgment appears to have been given by Oputa, JSC in Dibiamaka V Osakwe (1989) 3 NWLR (Pt. 107) 101 at 114, where the erudite Jurist explained thus:

“And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can easily be seen that he has lost the impression made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate court interfere. The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.” 
See Darma V Mustapha (2014) LPELR-CA/K/243/2012; International Beer & Beverages Industries Ltd V Mutunci Company (Nig) Ltd (2012) 6 NWLR (Pt. 1297) 487; Kolawole Industrial Co Ltd V AG Federation (2012) 14 NWLR (Pt. 1320) 221; Peoples Democratic Party V Okorocha (2012) 15 NWLR (Pt. 1323) 205; & Savannah Bank of Nigeria Ltd V Starite Industries Overseas Corporation (2009) 8 NWLR (Pt. 1144) 491. 

The Appellant has enumerated instances as reasons why he came to the conclusion that the learned trial Judge had lost touch with the facts of the case and this had resulted in injury to him. Starting from the first complaint, which he says is proof of the misapprehension of the evidence due to the delay in delivering Judgment, is the mix-up in the status or job description of PW2 and PW4. However, I agree with learned Counsel for the 1st Respondent that the reference to PW2 as the Chief Accountant, instead of PW4, is merely a slip and/or error which is easily accommodated under the “Slip Rule”. I agree. It goes without saying that Judges are mere mortals and can make such innocuous mistakes. When such mistakes, as in this case, do not go to the root of the action, they are said to be insubstantial and will certainly not negatively affect the outcome of the decision. 

The other complaints under this issue have largely been addressed under issues one to four already discussed. The Appellant has stated that it is directly because of the so-called ‘wrong findings’ of the trial Court that he was of the view that the learned trial Judge had lost a proper grasp of the facts of the case, and therefore proceeded to adopt his submissions under the fore-going issues. Consequently, having already resolved the preceding issues in favour of the 1st Respondent and against the Appellant, this submission is no longer of any moment.   

It is apparent that learned Senior Counsel was not only clutching at straws, but grasping at thin air, in his bid to discredit the Judgment of the trial Court by all means. However, he has not shown that he suffered any miscarriage of justice by reason of the two months delay in delivering the Judgment. This issue is also resolved against the Appellant.

Issues (vi) and (vii):
(vi)    Whether the prosecutor proved each of the necessary ingredients of the offence in counts 3 and 4 of the Amended Charge beyond reasonable doubt in the instant appeal.

And 
(vii)    Whether the conviction and sentence of the Appellant ought not to be set aside in the instant Appeal.

With regard to issue six, learned Counsel for the Appellant submits that the evidence led by the prosecution is not enough to establish the guilt of the Appellant on counts 3 and 4 of the Amended Charge. He contends that the ingredients of the offence under Section 1(2) (b) of the

Miscellaneous Offences Act (supra) which the 1st Respondent must prove beyond reasonable doubt are as follows:
i.    The Appellant knowingly intended to defraud the Government of Adamawa State;
ii.    The Appellant consequently caused the total sum of N51.5 million belonging to the Government of Adamawa State to be transferred;
iii.    The Appellant caused the transfer of the total sum of N51.5 million vide drafts;
iv.    The drafts were forged;
v.    The Appellant transferred the total sum of N51.5 million to the BBB Project account.

Regarding the intention to defraud, Senior Counsel submits that there is no evidence demonstrating that the Appellant made the payment (if such payment was made) with intent to defraud the Government of Adamawa State. He referred to the evidence of the PW4 that he made the payments on the instruction of the Permanent Secretary, who is now deceased; and that the 2nd Respondent was a contractor with the Ministry and had previously handled contracts; the same procedure used in issuing Exhibits PW7A and PW7B was also used in issuing Exhibit PW4A; and that the Appellant was the Commissioner of Local Government & Chieftaincy Affairs when the cheques were issued and not the person who authorised the issuance of the cheques. Thus, that there was no basis to assume that the Exhibits PW7A & PW7B were issued by the Appellant with intent to defraud. He further submits that, in the absence of the statement of account of the Local Government Joint account, it is impossible to know the money which left the account and was paid to the 2nd Respondent Company.

In respect of the 3rd ingredient, which is that the Appellant caused the transfer of the sum of N5.1 million vide drafts, Senior Counsel submits that the failure of the 1st Respondent to tender the said drafts leads to the conclusion that this was not proved. He asks the Court to invoke Section 167 (d) of the Evidence Act (supra). The same goes for the 4th ingredient, that not only did the prosecution not produce any draft before the lower Court, the cheques produced were not shown to have been forged having regard to the ingredients for the proof of forgery. Indeed, that evidence of forgery is not even admissible since it was not contained in the Amended Charge. On the fifth ingredient, he submits that no evidence is adduced showing any role played by the Appellant regarding the payment of N51.5 million into the account of BBB Project. He submits that the deduction of the lower Court on this is mere speculation and in criminal trials, suspicion no matter how strong, cannot take the place of legal proof.

While the prosecution is not bound to call a particular number of witnesses, it is bound to call every material witness otherwise it would raise reasonable doubt in favour of the Appellant. He submits the since the late Permanent Secretary was a necessary witness, the failure to call him raised a reasonable doubt in favour of the Appellant. 

Counsel therefore submits that, from the evidence before the lower Court, the prosecution failed to prove beyond reasonable doubt that the Appellant knowingly intended to defraud the Government of Adamawa State and consequently caused the sum of N51.5 million belonging to the said Government to be transferred, vide forged drafts, into the BBB Project account, and this Court is under a duty to set aside the Judgment. He relies on: Amadi V State (1993) 8 NWLR (Pt. 314) 644 at 664; Ojo V FRN (2009) ALL FWLR (Pt. 494) 1461 at 1497, paras B-E; Alake V State (1991) 7 NWLR (Pt. 505) 567; FRN V Mike Amadi (2006) EFCCLR 14; FRN V Odiawa (2006) EFCCLR 110; Abidoye V FRN (supra); Orji V State (2008) 10 NWLR (Pt. 1094) 31 at 47; Tegwonor V State (supra); State V Azeez (supra); Utuk V State (2011) ALL FWLR (Pt. 586) 562 at 569; Iberi V AG Fed. (2014) 5 NWLR (Pt. 1401) 610 at 636; Amodu V State (2010) 2 NWLR (Pt. 1177) 47 at 67-69 paras G-B; & The People of Lagos State V Umaru (supra) at 622, paras D-E. He urged the Court to resolve issue six in the Appellant’s favour.

In response, learned Counsel for the Respondent submits that the elements which the prosecution was required to establish to prove causing payment of money and the intention to defraud are:i)    Intent to defraud the Government of Adamawa State;
ii)    Causing the delivery or payment to himself or any other person of any property or money;
iii)    By virtue of any forged or false cheque, promissory note or other negotiable instrument.

In respect of the first ingredient, he submits that the prosecution, through the testimony of PW6, established that the 2nd Respondent Company did not execute any contract job for the Adamawa State Government to warrant the payments of the sum of N31.5 million and N21 million respectively belonging to the State Government to it at the time those payments were made. It also proved that the endorsements at the back of Exhibit PW71A (a Habib Bank cheque no. 087368 for N31.5 million), and Exhibit PW71B (a Habib Bank cheque no. 0875930 for N21 million), which gave instructions for the issuance of two drafts in favour of the 2nd Respondent Company, constitute forgeries as the 2nd Respondent Company was not the beneficiary of the two payments in Exhibits PW1A and PW1B, (the payment vouchers). In addition, it was established that, although the drafts in the said sums of money were paid into the 2nd Respondent Company’s account which was controlled by the Appellant by virtue of his being its sole signatory, the actual beneficiary was BBB Project. Since the Exhibits PW7 series (the cheques) were raised specifically to fulfill the purposes as specified in the Exhibit PW1 series (the vouchers), the endorsements at the back of the cheques stating “Pls, issue draft in favour of Al-Akim Ltd payable in Yola”, misrepresented and falsified the purpose for which the cheques ought to have been raised, as the 2nd Respondent Company was clearly not the beneficiary of both vouchers. Thus, the endorsements were done with the intent to defraud the Government and people of Adamawa State.

Counsel submits that a false document includes 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 or any other material matter. A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge. Also, making any material addition to the body of a genuine document or writing and adding to a genuine document or writing any false attestation or endorsement thereto, amounts to making a false document. A document is said to be false if the whole or part of it is made by a person with all falsity and knowledge. Learned Counsel submits that the testimonies of PW4 and PW6 point to the fact that the sum of N21 million meant for joint development projects was diverted from the Joint Account (JAC) and paid into the 2nd Respondent’s account, from where it was transferred to the BBB Project account with GTBank vide bank drafts. Since this evidence was not challenged during cross-examination, he argues that it should be accepted as true. 
This transfer was buttressed by the entry posted in Exhibit PW6C1 (statement of account) which confirmed that a draft of N21 million was deposited by Al-Akim Investment Nig. Ltd (the 2nd Respondent Company) into the BBB Project account on 28-01-2003 with a value date of 03-02-2003. And although the 2nd Respondent Company’s AfriBank statement of account was not tendered in evidence to show when the N21 million was credited into the account, (as was done with Exhibit PW6C2), still Exhibit PW6C1 clearly showed when the sums of N31.5 million and N21 million were credited into the account. Counsel submits that Exhibit PW6C1 speaks for itself and cannot be varied by oral evidence. He therefore submits that the prosecution thereby sufficiently linked the Appellant and the 2nd Respondent Company with the sum of N21 million. 

Counsel therefore submits that by these facts, the prosecution established the three ingredients required to prove the offence to wit: the purpose for which Exhibits PW71A and PW71B were raised and the subsequent transfers of the amounts involved to BBB Project account by the Appellant and the 2nd Respondent Company, which was intended to defraud the Adamawa State Government, and which they did. Hence he urged the Court to resolve issue six in favour of the 1st Respondent. He relies on: Moore V FRN (2014) ALL FWLR (Pt. 712) 1775; Odua V FRN (2002) 5 NWLR (Pt. 761) 615; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483 at 504; Nigeria Air Force V James (supra) at 321, paras E-H; 322, para H; & Amizu V Nzeribe (1989) 4 NWLR (Pt. 118) 755 at 771, paras G-H & 772, at para A.
In a reply to these submissions on the subject of forgery, learned Senior Counsel for the Appellant submits that in view of the lower Court’s finding at page 279 of the Record wherein it did not decide whether or not the 1st Respondent proved forgery, the 1st Respondent has no right to canvass as he has done so without filing a cross-appeal or a Respondent’s notice for the Judgment to be affirmed on other grounds, that forgery was actually proved. He asked the Court to discountenance the submission.

Secondly, Counsel submits that forgery was not included in the Amended Charge (as has already been argued in the Appellant’s Brief). Thus, any evidence adduced thereon goes to no issue. He therefore submits that the cases of Moore V FRN (2014) ALL FWLR (Pt. 712) 1775; Odua V FRN (2002) 5 NWLR (Pt. 761) 615; Osondu V FRN (2000) 12 NWLR (Pt. 682) 483; & NAF V James (2002) 18 NWLR (Pt. 798) 295 relied on do not support its position that the evidence of forgery is admissible to establish forgery where forgery, which though prescribed in the statute, was not stated in the Amended Charge. Thirdly, on the issue of diversion, Counsel submits that, by arguing that the Appellant was not charged, tried and convicted with diversion, and yet arguing the offence of diversion against the Appellant, the 1st Respondent approbated and reprobated. He urged the Court to discountenance the submissions thereon. He therefore again urged the Court to resolve issue six in favour of the Appellant.

With regard to issue seven, learned Counsel for the Appellant submits that the success of any of the issues already argued establishes that the Appellant was wrongly convicted, as such the conviction and sentence must be set aside. Furthermore, that whereas the lower Court convicted the Appellant under Section 1(2) (b) of the Miscellaneous Offences Act (supra), it sentenced him for the offences of stealing, diversion, abuse of office and public trust. In addition, while the punishment for the offence under the Act (supra) is, “a term not exceeding 21 years without the option of fine”, the Appellant was sentenced to ten years imprisonment and ordered to return “the sum of N51.5 million to the Adamawa State Local Government Joint Account Fund from where it was stolen and diverted by him”. Counsel submits that this Court has the power to set aside the conviction and sentence or to reduce the sentence in appropriate circumstances. He therefore submits that the sentence was not only excessive, but it was not supported by the facts and law. He relies on The People of Lagos State V Umaru (supra); & Adejobi V State (2007) 22 WRN 157 at 187. He urged the Court to resolve this issue in favour of the Appellant. Learned Senior Counsel finally prayed the Court to set aside the conviction and sentence of the Appellant and grant the reliefs as per the Notice of Appeal.  
In response to these submissions, learned Counsel for the 1st Respondent submits that, taking into account the oral and documentary evidence adduced by the 1st Respondent against the Appellant, the trial Court was right in convicting the Appellant as charged. He also contends that, by virtue of the penalty for the offence as set out in Section 1(2) (b) of the Miscellaneous Offences Act (supra) which provides for a term not exceeding 21 years imprisonment, the sentence of 10 years was not excessive. Finally, that the order for the refund of the sum of N51.5 million to the Adamawa State Local Governments Joint Account Committee, (as the victim of the crime of the Appellant), was in substantial compliance with Section 319 of the Administration of Criminal Justice Act (ACJA), 2015. He urged the Court to resolve this issue in favour of the 1st Respondent, and to affirm the Judgment of the lower Court.

In a brief reply on point of law, Senior Counsel for the Appellant submits that since the Administration of Criminal Justice Act, 2015 was not in existence at the time of the commission of the offence in 2002, it was a violation of the Appellant’s right to fair hearing under Section 36(6) of the Constitution (supra), to the effect that the Appellant can only be punished in accordance with an existing law. In the alternative, he submits that the order for the refund of the money still contravenes Section 36(9) & (12) of the Constitution (supra) because he was sentenced for the offence of stealing and diversion. Thus, Section 319 of the ACJA (supra) cannot be a justification to sentence the Appellant for offences of stealing and diversion, not being offences he was charged for. 

Findings:
Quite honestly, to my mind, the answer to issue six is a total re-hash of the answers already given in the preceding issues 1-5 above. It is no wonder that learned Senior Counsel for the Appellant started off by stating (at paragraph 1.139 at page 21 of his Brief of argument) that: “Resolution of any of the 5 issues argued above in favour of the Appellant is a clear evidence that the 1st Respondent has not proved the guilt of the Appellant beyond reasonable doubt in this Appeal. We therefore humbly adopt the argument on all the issues in this respect.”  That being the case, I equally adopt all my findings on each of the five issues already canvassed in this Appeal. This issue is more or less a mere surplus age. It must be remembered the mere repetition of issues does not, without more, help the case of a party to an Appeal. Instead, precision and succinctness are virtues of a good Brief of argument. Nevertheless, for whatever it is worth, I will proceed to plough through the evidence once again with a view to settling this issue. 

The first ingredient of the offence identified is that the Appellant caused the payment of the sums of N31.5 million and N21 million through cheques Nos. 0873368 dated 26/11/2001 and 0875930 dated 28/01/2003 into account no. 3613406139110 in Guaranty Trust Bank operated by the BBB Project. The prosecution established through credible documentary evidence vide Exhibits PW1A, PW1B, PW71B and PW71B, (payment vouchers and cheques), that the total sum of N51.5 million belonging to the Local Governments Joint Account Committee (LGs JAC) was paid into the account of the 2nd Respondent, Al-Akim Investment Ltd from where it was later lodged into the account of BBB Project. By the evidence of the PW1, PW4, PW6, DW2 and DW3, it was established that the Appellant presided over the meetings of the LGs JAC as Chairman when the funds of the account were variously disbursed. The Committee authorised the payment of the sum of N31.5 million to INEC to facilitate the Voters Registration exercise and the sum of N21 million for its development projects. However, instead of the monies to be used for the purposes allocated, they found their way, first into the account of the 2nd Respondent, a company which, by the Appellant’s own admission in Exhibit PW6B, he had more than a passing interest. As a matter of fact, he admits in Exhibit PW6B and in his oral evidence as DW2 to being its erstwhile Chairman/CEO cum Director. It was further established through the evidence of the PW5, (the Branch Manager of GT Bank Yola), and DW4 (the present Managing Director of the 2nd Respondent), that the Appellant on the Company’s documents, still remains the sole signatory to the 2nd Respondent’s account. These monies belonging to the Adamawa State LGs JAC was then paid, by an instruction written at the back of the cheques, (Exhibits PW71A and PW71B) into the account of BBB Project. Now the Appellant very conveniently lays the blame for the issuance of the cheques and the instruction for payment of the monies into the account of BBB Project, at the door of the Permanent Secretary who is deceased, and insists that he should have been called to clear the air, the fact of his demise notwithstanding. Well, by the evidence of the PW1 and PW4, the Appellant was part an important part of the decision making of the LGs JAC as its Chairman, while the deceased Permanent Secretary was merely its Secretary, and his duty was to implement the decisions of the Committee. Now, lest it be misconceived from the evidence of the PW4, (the Chief accountant of the Ministry), who was also ostensibly the recipient of the instruction from the late Permanent Secretary to prepare the cheques, the evidence of PW1, (the erstwhile Chairman of Mayo-Belwa LGC) is very instructive and revealing. He was a member of the LGs JAC where decisions were taken in respect of the sum of N51.5 million and more. He stated inter alia thus at pages 82-84 of the Record:

“I remember during the monthly joint account meeting of the Local Governments. The members comprises (sic) of the 21 Local Government Chairmen, the Hon, Commissioner of Local Government and Chieftaincy Affairs i.e. all the 2nd accused. We all agreed i.e. the 21 Local Government Area Chairmen that we should contribute N1.5 million to INEC for registration of voters. After the agreement, a voucher to that effect was raised, which each of us, i.e. all the 21 Local government Area Chairmen signed authorising the withdrawal of the sum from each Local Government Area account. The total contribution was around N31 million... I can also remember that in January, 2003, during the monthly joint account meeting, we the 21 Local government Chairmen of Adamawa State jointly approved that the sum of N2.5 million be deducted from each Local Government account as “joint development fund”. After the approval, we each signed the vouchers... The amount was accordingly deducted from each Local Government account, i.e. totalling N46 million... The Chairman of the Local Government Joint Account Committee is Mr. Babani Elias... I don’t think that the contribution could be used for any purpose other than what it was meant for.” (Emphasis supplied)

Even though the PW1 and PW4 (the Chief Accountant) did their best to attempt to extricate the Appellant from involvement in the wrongful application of these monies; and made every effort to point fingers at the deceased Permanent Secretary as being responsible for the way in which the monies voted for one purpose were disbursed for a different purpose, the fact remains that the monies found their way, not into the pocket of the late Permanent Secretary, but  into the account of the 2nd Respondent, a company in which the Appellant (as self-professed), has considerable interest, is very telling and significant. The Exhibit PW5, consisting of the opening of account papers being the mandate papers and the Memorandum & Articles of Association of the 2nd Respondent Company, clearly establish the Appellant’s considerable interest in the company. These documents, which portray him as the Chairman/CEO of the 2nd Respondent as well as the sole signatory to its account, are by law, preferred to his oral testimony where he, not surprisingly, denies any involvement with the 2nd Respondent. It is settled law that oral evidence cannot be used to contradict documentary evidence, which is always to be preferred over oral evidence; documentary evidence being the hangar used to assess oral evidence.

In the face of these implicating pieces of evidence, when the Appellant was invited to clear the air on his very apparent role in the handling of these monies belonging to the LGs JAC to the advantage of a company of which he was the Chairman/CEO and sole signatory, he made a very pathetic attempt at explaining his role. In his own words in Exhibit PW6B, his extra-judicial statement to the EFCC, he stated as follows:

“I have been shown GTB bank account statement of BBB Project and shown where Al-Akim Investment paid 50% of pledge made by them valued at N31, 500, 000 which reflected in the account. Al-Akim is a company I have interest and is not my personal account, the company made a pledge on behalf of BBB Project based on the cheques it has at its disposal...” (Emphasis supplied)

What a curious coincidence that, being the Chairman of the LGs JAC where decisions were taken to commit monies for certain specific projects, the monies found their way into the account of the 2nd Respondent, where the Appellant is the sole signatory; which monies were, supposedly through the instruction of a deceased officer of the Ministry, paid into the BBB Project account. If the Appellant’s story in Exhibit PW6B is to be believed, the lodgement of the sum of N51.5 million vide Exhibits PW71A and PW71B, into the account of BBB Project was to redeem pledges made at a fund raiser where he again was one of the “...collectors of donations from various people and organisations... which were paid into an account of Bring Boni Back Project” (see Exhibit PW6B). 

However, the vouchers themselves from which the cheques were raised, (Exhibits PW1A and PW1B), tell a different story. Contrary to the concocted story of the Appellant, the oral evidence of PW1 and PW4 corroborate Exhibits PW1A and PW1B very nicely. Rather than the monies being “pledges from a fund raiser”, they were clearly monies belonging to the Adamawa State LGs Joint Account Fund (as reflected on the face of the cheques) that had been committed for developmental projects. Under the Appellant’s watch and direction as Chairman of the LGs JAC, they were paid into the 2nd Respondent’s account and ultimately found its way into the BBB Project account. 

By virtue of these convincing and coherent pieces of circumstantial evidence, taken along with the evidence of PW6, the police officer who investigated the allegations and provided all the missing links, it was clearly established that the Appellant, with a clear intention to defraud the Adamawa State Government, caused the payment of the total sum of N51.5 million, as reflected in Exhibits PW7A and PW7B, into the account of BBB Project with Guaranty Trust Bank, monies which were meant for Adamawa State Local Governments’ Joint development projects. 
In addition, I agree with the 1st Respondent that making any material addition to the body of a genuine document or writing, and adding to a genuine document, or writing any false attestation or endorsement on a document, amounts to making a false document. A document is said to be false if the whole or part of it is made by a person (personally or by proxy) with all falsity and knowledge. Where a document is said to be forged or false, it tells a lie about itself, and it is proved where it is exposed and confirmed. See Osondu V FRN (2000) 12 NWLR (Pt. 682) 483 at 504. In Nigeria Air Force V James (2000) 18 NWLR (Pt. 798) 295 at 321- 322, para H, a case with similar facts, the Supreme Court, per Onu, JSC, held:

“The court below failed to take cognizance of the fact that the expressed purpose of exhibits 9A-C did 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 exhibits 9A-C were demonstrated to be false representations with 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 money by the accused persons the respondent inclusive, what further proof of forgery was needed?”

By the same token, given the express purpose for these monies as stated in the vouchers (Exhibits PW1A and PW1B), the cheques raised for their implementation (Exhibits PW71A and PW71B), told lies about themselves. The express purpose for the issuance of the cheques was for the assistance of INEC in the Voters’ Registration exercise and for development projects of the 21 Local Governments in Adamawa State; yet the endorsements on the cheques were for the monies to be paid into the BBB Project account opened specifically to receive monies for the support of the political ambition of Mr. Boni Haruna, the one-time Governor of Adamawa State, under whom the Appellant served as Commissioner. Thus, the purpose for which Exhibits PW1A and PW1B (the vouchers) were approved and raised was never consummated. Rather, Exhibits PW71A and PW71B (the cheques) were used as conduits to channel the monies into the 2nd Respondent’s account en route into the BBB Project account. 

The evidence of PW1, PW4 and PW6, in addition to the exhibits already referred to, forged the link between the Appellant and the payment of the monies into the BBB Project account. The endorsements on the reverse side of Exhibits PW71A and PW71B (the cheques) in the total sum of N51, 500, 500.00 (Fifty One Million Five Hundred Thousand Naira) which, as aforesaid, falsified the reason for raising Exhibits PW1A and PW1B (the vouchers), could not have been made without the knowledge and authorisation of the Appellant, the sitting Commissioner for Local Government and Chieftaincy Affairs and also the Chairman of the Local Government Joint Account Committee. His own statement (Exhibit PW6B) confirms that he was fully aware of the movement of the monies from the 2nd Respondent’s account to the BBB Project account, even though he put a different spin on it; a spin which could not rebut the cogent and credible evidence adduced by the 1st Respondent. The fact that the statements of account of the 2nd Respondent and the BBB Project were not tendered does not in any way detract from the cogency of the evidence before the Court, as there was sufficient evidence upon which the charge was proved.    

Accordingly, I find no reason to disturb the findings of fact of the trial court. The chain of evidence necessary to lead irresistibly to the guilt of the Appellant is complete in this case. 

At this stage, it may be helpful to remind ourselves what circumstantial evidence adduced in proof of a charge is:

“Circumstantial evidence is as good as, sometimes better than any sort of evidence, and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete unbroken chain of evidence. If that is established to the satisfaction of the jury, they may well and properly act upon such circumstantial evidence.”

See Rex V Miao per Humphrey J. cited in Wills on Circumstantial Evidence 7th Edition (1936) p.224, adopted with approval by the Apex Court in Peter V State (1997) LPELR-SC.23/1996 per Onu, JSC; Adie V State (1980) LPELR-SC.24/1978 per Obaseki, JSC;  Ukarah V The State (1977) SC 167 per Idigbe, JSC. The facts in the instant case, in my humble view, are clearly sufficient for the learned trial Judge to arrive at the conclusion of guilt on the part of the Appellant. The feeble attempt at rebuttal evidence in the form of the evidence of the DW4 and the Exhibits DW4A and DW4B failed to ring true in the face of the overwhelming evidence of the PW1, PW4, PW5 and PW6, which convincingly established that the sum of N51.5 million was voted for developmental projects by the LGs JAC, as opposed the story woven by the DW4 that it was payment for a contract awarded to the 2nd Respondent.  
Finally, the Appellant complains under issue seven that, where any of the preceding issues succeed, then the Appellant was wrongfully convicted on counts 3 and four of the Amended Charge. He also contends that the sentence was excessive in respect of the order for the refund of the sum of N51.5 million “stolen or diverted by him”, since he was not convicted for stealing and diversion.  

In reply, Counsel for the Respondent submits that the trial Court was right in convicting the Appellant based on the oral and documentary evidence adduced by the 1st Respondent. He further submits that the sentence of 10 years imprisonment was not excessive considering the provision of Section 1(2) (b) of the Miscellaneous Offences Act; while the order for the refund of the sum of N51.5 million to the Adamawa State Local Governments Joint Account Committee Fund was in substantial compliance with Section 319 of the Administration of Criminal Justice Act, 2015. In a brief reply, Senior Counsel to the Appellant submits that the provisions of the ACJ Act, 2015 are not applicable as they cannot be applied retrospectively since the offence was committed in 2002.

Clearly, as I have already found, there was ample circumstantial evidence upon which the Appellant was convicted. As for the sentence, since Section 1(2) (b) of the Miscellaneous Offences Act provides for 21 years imprisonment, a sentence of 10 years can, by no stretch of the imagination, be considered excessive. The Appellant has offered no parameter or criterion by which he arrived at this conclusion. Be that as it may, it would appear that his quarrel actually is with the order made for the refund of N51.5 million to the coffers of Adamawa State. 
It is true that Section 319 of the ACJ Act, 2015 gives power to the Court to order for the payment of expenses or compensation for persons injured by the act(s) of the convict. It is also true that the commencement date of the Act as stated at the opening paragraph is 15th May, 2015, while the offences for which the Appellant was charged were committed in 2002 and 2003, and he was convicted in December, 2015. What then is the law with regard to the applicability of laws and procedural rules of court?

It is a fundamental principle of law that no statute shall be construed so as to have retrospective operation, unless it pertains to matters of procedure. See Afolabi V Gov. of Oyo State (1895) LPELR-196(SC) 1 at 54, where Obaseki, JSC held:
“No rule of construction is more firmly established than that a statute is not to be given retrospective operation as to impair an existing right or obligation otherwise than as regards matters of procedure unless than effect cannot be avoided without doing violence to the language of the enactment.” (Emphasis supplied)

PAGE| 46

Again, in Goldmark Nig Ltd V Ibafon Co. Ltd (2012) LPELR-9349(SC) 1 at 40-43, the Supreme Court affirmed its decision in both Orthopaedic Hospitals Management Board V Garba (2002) 7 SC (Pt. II) 138  and Are V AG Western Region (1960) SCNLR  224 that:
“Unless it affects purely procedural matters, a statute cannot apply retrospectively except when it is made to do so by clear and express terms.” (Emphasis supplied)

From these decisions, it is fairly apparent, that while substantive laws cannot be interpreted by courts of law to have retrospective operation, when it comes to rules of procedure, it is permissible. Thus, the ACJ Act, being rules guiding the procedure of criminal trials in Federal High Courts and FCT High Courts, are capable of retrospective effect. The trial Court therefore acted rightly when it applied Section 319 of the ACJ Act to make an order on the Appellant to refund the sum of N51.5 million to the Adamawa State Local Governments Joint Account Committee. This issue is therefore also resolved against the Appellant.  

On the whole, it is clear to me that there was abundant evidence upon which the learned trial Judge properly convicted the Appellant for the offence charged. But for all manner of trifling and tiresome technicalities raised by the Appellant, which were earlier dealt with and most of which lacked substance, and in any event which did not occasion a miscarriage of justice, the Appellant established no defence of whatever nature for his criminal conduct. This Appeal therefore lacks substance and I accordingly dismiss it.
Consequently, the Judgement of the Federal High Court Yola Division, in Charge number FHC/YL/10C/2013 delivered on 4th December, 2015, between ‘The Federal Republic of Nigeria V Mohammed Inuwa Bassi, John Babani Elias & Al-Akim Investment Ltd’, wherein the Appellant was convicted and sentenced to ten (10) years imprisonment and to refund the sum of N51.5 million (Fifty One Million Five Hundred Thousand Naira) to the Adamawa State Local Governments’ Joint Account Committee, is hereby affirmed.

SAIDU TANKO HUSAINI
I have had the advantage of reading in draft the Judgment read by learned brother, Jummai Hannatu Sankey, JCA. I entirely agree that this appeal lacks merit and that it should be dismissed. For the reasons contained in the Judgment which I adopt as mine, I too hereby dismiss the appeal.

BIOBELE ABRAHAM GEORGEWILL, JCA
I have been afforded in advance a draft copy of the lead judgment just delivered by my lord, JUMMAI HANNATU SANKEY, JCA; and I am in complete agreement with the lucid reasoning and inescapable conclusions reached therein. I shall only add a few words of mine as by way of my contribution to the lead judgment.
The 1st Respondent initially arraigned the Appellant with three others but subsequently with two others on an amended four count charge, alleging several offences contrary to Sections 3(6) of the Miscellaneous Offences Act, Cap M17 Laws of the Federation of Nigeria, 2004 and punishable under Section 1(2) (b) and 3(2) of the same Act. 

At the close of the case for the respective parties, their counsel addressed the Court below on 6/7/2015 and the case was adjourned to 6/10/2015 for Judgment but that date, which was the very last day of the 90 days as prescribed by law for delivery of judgment, was not to be until the time prescribed by the Constitution of Nigeria 1999 as amended had lapsed. Subsequently, the court below invited Counsel to re -adopt their written addresses on 17/11/2015 and the long awaited Judgment was finally delivered on 4/12/2015. It is against this judgment that the Appellant, who was convicted and sentenced on two counts had appealed against in this appeal.

I deem it very pertinent to state that in law while it is not every minor error, which in essence is a mere irregularity that could lead to a reversal of the judgment of a trial court on appeal but every error which is fundamental and thus goes to the root of the charge as laid against an Appellant could lead to a reversal of the judgment convicting an Accused person. 

Now, the categories of what would constitute fundamental error and not just minor error or mere irregularity are never closed but would largely depend on the peculiar facts of each case. However, in all cases in which there is a fundamental error, such as where in a criminal trial the essential ingredients of the alleged offence are not stated or contained in a charge laid against an Accused person, I dare say it would amount to a fundamental error capable, in my view, to repudiating the entire trial and in a criminal trial, the conviction of an Accused person. See Sani V State (2015) 15 NWLR (Pt. 1483) 522 @ p. 550. See also Olley V Tunji (2013) 10 NWLR (Pt. 1362) 275 @ p. 321; Petro Jessica Enterprises Ltd V Leventis Technical Co. Ltd (1992) 5 NWLR (Pt. 244) 675 @ p. 693; Mpama V FBN Plc (2013) 5 NWLR (Pt. 1346) 176 @ p. 204; Oshiomole V Airhiavbere (2013) 7 NWLR (Pt. 1353) 376 @ p. 414.

In the instant appeal, upon a calm scrutiny of the relevant provisions of the law under which the Appellant was charged, tried, convicted and sentenced and the charge as laid against the Appellant, which had been copiously reproduced in the lead judgment, I do not see any fundamental defect or error in the charge as could lead to a reversal of the judgment of the court below on that score as vehemently urged upon this court by the Appellant’s counsel and I so hold. 
The charge as laid against the Appellant contained, in my view, all the essential requirements under the provisions of the law under which it was laid and the Appellant quite clearly, on the face of the record of appeal, understood and pleaded not guilty to all the counts as laid against him in the charge at pages 79– 80; 184 - 186 of the record of appeal. The complaint under this head is thus without any iota of merit and hereby discountenanced. See Adeniji V State (2001) 13 NWLR (Pt. 375) 390,
In law, an allegation that a court, at whatever level, had raised an issue suo motu and proceeded to resolve the same without calling on the parties to address it on such an issue raised suo motu is a very grave one which if made out could readily result in a reversal and setting aside of the judgment of such a court being one clearly in contravention of the sacrosanct right to fair hearing as constitutionally guaranteed the citizen by virtue of Section 36(1) of the Constitution of Nigeria 1999 as amended. See Olatunji Adisa (1995) 2 NWLR (Pt. 376) 167 @ pp. 183-184. See also Oshodi V Eyifunmi (2000) 13 NWLR (Pt. 684) 298 @ p. 352; INEC V Ogbadibo Local Government (2015) LPELR-24839(SC); Leaders & Co. Ltd V Bamaiyi (2010) 18 NWLR (Pt. 1225) 329 @ p. 341.

In the instant appeal, however, I agree with the apt and unassailable submission of 1st Respondent’s counsel that in the light of the contention by the Appellant’s counsel before the court below that the Prosecution must prove forgery relying on Nigeria Air Force V James (2002) 18 NWLR (Pt. 798) 295, the Court below in relying on Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30 at 57 , a decision which I find to be very apposite and rightly relied upon by the court below, to hold that the Prosecution need not prove forgery but to prove the ingredients of the offence as specifically charged did not raise any issue suo motu. 

This is the clear purport, in my view, of the succinct provisions of Section 151(4) of the Criminal Procedure Act, which provides as follows:
           

         “Fact that a charge is made is equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case”
The above provision has been replicated and produced verbatim in Section 195 of the Criminal Administration of Justice Act 2015, now applicable in the court below. The provision of Section 151(4) of the Criminal Procedure Act had come up for consideration in several decided cases before the Supreme Court. See Agumadu V. The Queen (1963) 1 All NLR 203. See also Abidoye V FRN (2014) 5 NWLR (Pt. 1399) 30, the case referred to and relied upon by the court below in its judgment appealed against in this appeal. In that case @ pp. 55 – 56, the Supreme Court per Ngwuta JSC, had succinctly expounded inter alia thus:
         

               “The implication of Subsection 4 of Section 151 reproduced above is that once a charge is laid, it is deemed that all the ingredients included in the particulars are needed to prove the charge and any ingredient omitted is not necessary. In my humble view, the Prosecution cannot default in proof of any ingredient included in the particulars of the offence charged, nor can it offer proof of an ingredient omitted from the particulars of the offence without first of all seeking leave to amend and amending the information laid against the Accused. ................ It therefore, follows that contrary to the views of the lower court, the Prosecution is bound to prove every ingredient of the offence as laid and not the ingredient of the offence created, having jettisoned the latter in favour of the former”
It was, apparently, on the strength of the above decision that the court below had proceeded to hold, and quite rightly too in my view, inter alia thus: 

                      “Therefore, the onus or the burden on the Prosecution in this case is to prove the ingredients of the offence as laid down in the charge and not all the ingredients of the offence as stated in the section creating the offence. This is quite common sense because as it can be seen, the section creating the offence has given wider circumstances under which an offence can be charged under the section. It is not logical to say the Prosecution must prove all the circumstances that an offence can be committed under the creating section, unless all the ingredients in the section are laid in the charge”

I can neither see for myself nor fathom the rationale for the vehement contention by the learned Senior Advocate for the Appellant that the court below was guilty of raising an issue suo motu and resolving same without calling on the parties to address it. It is pertinent to note that a court of law faced with submissions of opposing counsel is under a duty to consider those submissions in line with the facts as established before it and relevant decided authorities as relied upon by the parties and other applicable decided cases as come to the court’s attention in its research in preparation for the writing of its judgment. 

The reliance or use of relevant decided cases whether relied upon by the parties or which come to the attention of the court in its research in preparation for the writing of its judgment is not and can never, in my view, be raising an issue suo motu. I therefore, do not see any issue raised suo motu by the court below for which it ought to have called on the parties to address it before resolving it as alleged but not proved by the Appellant. Consequently, this issue merely raised by the Appellant in my view as red herring is also hereby discountenanced.  
 
On the arguments canvassed under issue five by the Appellant, I think that the conduct of the court below, though no miscarriage of justice as required by Section 294(5) of the Constitution of Nigeria 1999 as amended to render a judgment delivered outside the 90 days period a nullity or liable to be set aside has been made out by the Appellant, is most reprehensible in this regard and cannot be condoned so lightly without a word of caution. 

It is my view that no provision of the Constitution of this great Country was promulgated merely for the fun of it and thus every single provision therein was and is meant for the purpose of the good governance of the diverse peoples of this country and must therefore, never be treated with levity. When any such treatment is shown it must not be treated with a kid’s glove. 

On 6/7/2015, the court below had after taking the final addresses of counsel for the parties adjourned the case for judgment on 6/10/2015. Subsequently, it not only failed to deliver its judgment on 6/10/2015 but also failed to call on the parties to re - adopt or re - address it at least on or before the 6/10/2015 the very last of the 90 days prescribed by the Constitution vide Section 294(1) thereof.  It was only on 17/11/2015, long after the 90 days as prescribed by law had lapsed that the court below called the parties to re - adopt their written addresses earlier adopted on p6/7/2015. See pages 195 – 195; 197 – 198 of the record. 

I have scanned through the 95 page judgment of the court below spanning pages 199 – 293 of the record and regrettably, and to my consternation too, the court below did not proffer not even an iota of any reason why it had proceeded in this manner in the delivery of its judgment long after the 90 days had lapsed. It proceeded in such a manner that betrayed either its lack of appreciation of the succinct provisions of Subsections (1) and (5) of Section 294 of the Constitution of Nigeria 1999 as amended or its presumption, though obviously misconceived, that by the re-adoption of the written addresses by counsel the 90 days time as prescribed by law for it to deliver its judgment began to run afresh. In either way, the court below was lackadaisical in its approach and is hereby strongly deprecated. I shall say no more but a word it is said is enough for the wise and prudent!

Now, a court which finds itself in a position of not being able to deliver its judgment within the prescribed 90 days period has only one rational option open to it, namely; to call on the parties to re - address it within and before the expiration of the initial 90 days as prescribed by law. It need not, should not and indeed cannot wait until after the expiration of the 90 days prescribed period before calling on the parties to address it and to have afresh 90 days from whenever it had called upon the parties after the initial 90 days had lapsed as the court below did so reprehensibly.  In my view, such conduct reduces the succinct provisions of Section 294 (1) and (5) of the Constitution of 1999 as amended to a mere caricature. 

At best, the court below ought to have called on the parties on or before the 6/10/2015 judgment date, it fixed by its own authority and volition, to re - adopt their addresses and not to wait as it did until long after the expiration of the 90 days before waking up from its self imposed slumber, none of which reason or cause was even given or explained in the judgment, to call on the parties to re - adopt their addresses.  

However, be that as it may, the lead judgment had found, and I have entirely agreed with it, that there has been no miscarriage of justice shown by or occasioned to the Appellant by reason of the delivery of the judgment of the court below outside the 90 days period as prescribed by law but I direct that the Deputy Chief Registrar of the Yola Division shall promptly, upon the delivery of this judgment, bring these observation in both the lead judgment and this contribution to the attention of the court below, through the Assistant Chief Registrar of the court below, for proper guidance in the future.

It is with the above few contributions of mine and for the more detailed reasons and conclusions reached in the lead judgment that I too hold that the appeal has no substance and thus lacks merit and ought to be dismissed. Consequently, I too hereby dismiss it without much ado.  I shall abide by the consequential orders made in the lead judgment.?