OKOLO V FRN

OKOLO V FRN


IN THE COURT OF APPEAL
IN THE KADUNA JUDICIAL DIVISION
HOLDEN AT KADUNA

ON FRIDAY, 22ND JUNE, 2018


Suit No: CA/K/24C/2016

CITATION:

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU, JCA

MOHAMMED AMBI-USI DANJUMA, JCA

OBANDE FESTUS OGBUINYA, JCA


BETWEEN

OKECHUKWU OKOLO
(APPELLANT)

AND

FEDERAL REPUBLIC OF NIGERIA
(RESPONDENT)


PRONOUNCEMENT


A. EVIDENCE
1. Hearsay Evidence – The admissibility of hearsay evidence

One of the Appellant’s chief and foremost grievances is against the validity of the evidence of PW1-PW3. The kernel of his complaint is plain. He chastised them as inadmissible hearsay evidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Opara v A. -G. Fed. (2017) 9 NWLR (Pt. 1569) 61. To begin with, I have given an indepth study to the evidence of PW1 wrapped between pages 214-216 of the record. PW1 was Aminu Zakari Mohammed. At the cradle of his parol evidence, he described his designation as “the chief Medical Director of Aminu Kano teaching Hospital” of Bayero University, Kano. The meat of his evidence is simple: that when the EFCC presented the forged documents, they identified therefrom that the signatures of the signatories to the deposit accounts of Aminu Kano Teaching Hospital with ccess Bank Plc. were not theirs. Put differently, they disowned the signatures in the forged documents. To my mind, the viva voca testimony of PW1, as pluck out above, is a classic exemplification of direct oral evidence of what he saw and observed. It therefore, falls within the perimeter of the admissible evidence as decreed by the prescription of Section 126 (a) of the Evidence Act, 2011. It has not, in the least, fracture/defiled the law of evidence as to the bear/wear the stigma of hearsay being smeared on it by the Appellant. Per OGBUINYA, JCA. read in context

2. Evaluation of Evidence – The concurrent jurisdiction of evaluation of evidence placed on appellate Court and lower Court

A clinical examination of the solitary issue, amply reveals that it is dotted with sea of side or adjunct issues itching for distinct determination. It is imperative to place on record, that bags of documentary evidence formed the corpus of the case. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299. I will reap from this coextensive jurisdiction in the appraisal of the galaxy of documentary evidence in this appeal. Per OGBUINYA, JCA. read in context

3. Hearsay Evidence – The admissible nature of an hearsay evidence given by an official of a compan

That takes me to the status of the evidence of PW2 and PW3. Their oral testimonies are encased between pages 217-222 of the record. PW2, Steven Uniwerhiaye, and PW3, Moses Shichet, both testified as staff of Access Bank Plc. Aminu Kano Teaching Hospital branch, Kano, the substantive complainant. Are their evidence hearsay evidence? The answer to the vexed poser is deeply founded in the realm of case-law. In Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405, the apex Court held.

…it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one, who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. [1985] 2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Brisco (Nig.) Ltd. [1987] 3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc. See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Saleh v. Bank of the North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581) 52, Interdrill (Nig.) Ltd. v UBA Plc (2017) 13 NWLR (pt. 1581) 52. The magisterial pronouncements in these ex cathedra authorizes, with due respect, expose the poverty of the alluring submission of the Appellant’s counsel on the stubborn point. It is decipherable from them, that, in the eyes of the law, their evidence cannot be categorized as hearsay. The victim of the crime, Access Bank Plc., is presumed to be a duly incorporated company under the Nigeria Companies and Allied Matters Act. By the registration, it is a persona ficta, a juristic personality which can only act through an alter ego such as its agents or servants, directors, managers, see Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (Supra); Interdrill (Nig.) Ltd. v. UBA Plc. (Supra). To label the evidence of PW2 and PW3 as hearsay, as pontificated by the Appellant, will be antithetical to the corporate personality of the Respondent, a legal abstraction, devoid of blood, flesh, brain and other human features. Flowing from the foregoing, I dishonour the Appellant’s enticing invitation to crucify evidence of PW2 and PW3 on the undeserved altar/shrine of evidential hearsay for want of legal justification. Per OGBUINYA, JCA. read in context

4. Calling of Witnesses – The fatal effect of prosecution failing to call a vital witness

It is trite, that the law compels the prosecution to call a vital witness: a witness whose evidence will prove a vital point or ingredient of an offence either way. If the prosecution defaults in calling such a vital/material witness, the failure will be fatal to its case which must be proved beyond reasonable doubt. See Sale v. State (2016) 3 NWLR (Pt. 1499) 392; Itu v. State (2016) 5 NWLR (Pt. 1506) 443; Pius v. State (2016) NWLR (Pt. 1517); Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Ayeni v. State (2016) 12 NWLR (Pt. 1525) 51; Nweke v. State (2017) 15 NWLR (Pt. 1587) 120; Osuagwu v. State (Supra). Per OGBUINYA, JCA. read in context

5. Unchallenged Evidence – The power of the Court to act on unchallenged evidence

The law gives the Court the unbridled license to act on unchallenged evidence, see Ayeni v. State (Supra). Per OGBUINYA, JCA. read in context

6. Calling Of Witnesses – The power to determine vitality of evidence imposed on the prosecution

It is the prosecution, the Respondent herein, that determines the vitality of evidence, see Nweke v. State (Supra). For want of legal justification, I am unable to brand those persons/signatories whose signatures were forged and uttered, listed as prospective witnesses but not called, as vital witnesses whose evidence were/are inimical to the Respondent’s case. My view point is solidified by the hallowed principle of law, that the prosecution, the Respondent herein, is not required to field a host of witnesses to prove ingredients of an offence, Eze v. FRN (2017) 4 NWLR (Pt. 1589) 433; Amadi v. A. -G., Imo State (2017) 11 NWLR (Pt. 1575) 92; Ali v. State (2015) 10 NWLR (Pt. 1466) 1. In other words, in the province of criminal jurisprudence, evidence of one reliable witness, not a legion, is enough to prove commission of a crime. To this end, the Respondent’s neglect to call all the owners of the forged signatures did not constitute a coup de grace in its case. On this score, the Appellant’s dazzling argument on this point is lame. It cannot fly.

The above juridical survey, done in due consultation with the law, demolishes the Appellant’s agitation that his inviolable right to fair hearing, as ingrained in Section 36(6) (d) of the Constitution, as amended, was eroded. Per OGBUINYA, JCA. read in context

7. Confessional Statement – The provision of the law on when to object to a confessional statement

It remains to attend to the Appellant’s castigations against Exhibits C1- 3. In the first place, it is settled adjectival law that the time to object to a confessional statement is at the point of tendering it otherwise the party will forfeit his right of objection to it on an appeal. See Alarape v. State (2001) 5 NWLR (Pt. 705) 79/(2001) FWLR (Pt. 41) 1872; Oseni v. State (2012) 5 NWLR (Pt. 1293) 351; Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386; John v. State (2017) 16 NWLR (Pt. 1591) 304. The record, the spinal cord of the appeal, clearly, showcases that the Appellant, who was represented by counsel, did not greet the admission of those Exhibits C1-C3 when they were tendered by the Respondent through PW4. The Appellant’s failure, in his infinite wisdom, to register his opposition to the admissibility of those documents drains/divests him of the right to object to their admission on appeal. In a word, this Court is not the forum competens to raise an objection to their admissibility having sacrificed his right during the trial at the lower Court. Per OGBUINYA, JCA. read in context

8. Confessional Statement – Requirements of the law on confessional statement

Above all, those Exhibits C1-C3 were extra-judicial statements made by the Appellant to the investigative body, the EFCC. Curiously, he confessed to the commission of the offences in the exhibits. The provision of Section 28 of the Evidence Act, 2011 states:
A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime.
Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner ordained by the provision of the Section 29(2) of the Evidence Act, 2011.
Unarguably, it is within the perimeter of the law for a Court to base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Muhammad v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Agagua v. State (2017) 10 NWLR (Pt. 1573) 254.
When those pre-trial statements were admitted as Exhibits C1-C3, even though the Appellant was their owner, they deserted the defence and metamorphosed into the Respondent’s case, see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State 2013) 9 NWLR (Pt. 1359) 214. It flows, that their contents became part and parcel of the Respondent’s case. As already noted, when those extra-judicial statements were tendered for admission in evidence, the Appellant did not raise any protest to their admissibility. The implication is plain. They were voluntarily made. In those exhibits, the Appellant made an undiluted admission of commission of the alleged offences.
Indeed, the kingly position of confession in criminal jurisprudence cannot be overemphasized. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR ( t. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NW R (Pt. 1381) 556. The Appellant’s confessional statements, Exhibits C1-C3, drown his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to offences preferred against him.
It stems from the expansive legal anatomy, conducted with the aid of the law, that the Respondent proved the necessary ingredients of the offence preferred against the Appellant beyond reasonable doubt as mandated by the provision of Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt. See Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230. In the legal parlance, it is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable.” See Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpates the Appellant, as the perpetrator of the offences charged is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it. See Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167. I am least prepared to infuriate the law for fear of its wrath. In effect, all the strictures, which the Appellant rained/poured against the lower Court’s evaluation of the evidence, fly in the face of the law. Per OGBUINYA, JCA. read in context

9. Hearsay Evidence – The doctrine of corporate responsibility as it relates to evidence

The evidence of Pw2 and Pw3 are certainly not hearsay and admissible evidence as they were both the human agencies through which the corporate persons of Access Bank Plc and the Aminu Kano Teaching Hospital Kano acted. How could the juristic personam which are legal figments clothed with legal personality sue and be sued. How can they ventilate their claims or defend them in the case of suits or in any dealing? It has to be through the instrumentality of the human with flesh, blood, hands, legs and eyes and brains. That is why the alter ego of a corporate entity can be discerned; and that is why documents and acts are, by the laws relating to incorporation, stipulated to be performed by some named categories of officers/officials who are humans homo sapiens; e.g of counsel.

The doctrine of corporate personality developed in Salomon Vs Salomon 1897 Ac 22 @ 66 and the lifting of the veil principle in corporate law is a case in point. See also Lee V. Lees Air Farming Ltd (1963) AC 12. The Nigerian case Law Authority of Ishola Vs Societe Generale Bank Ltd (Ltd) (1997) 2 NWLR (Pt. 488) 405 and a host of other cases including PWOL V. Union Bank Plc (1999) 1 NWLR (Pt. 588) 636 exemplify this stand of common sense.
It is this same principle that governs the rationale for the signing or franking of Legal processes only by legal practitioners as against the law firms as entities and media by which law may be practiced by these same specie of humans. Per DANJUMA, JCA. read in context

10. Evidence of a Single Witness – How evidence of a sole witness can constitute the basis of guilt

On the whole, the evidence of a sole witness if credible, may even constitute the basis for a finding of guilt, and that was clearly proved to be so in this case on appeal, which has all the prerequisites of admissible oral and documentary evidence established in favour of a conviction and sentence that cannot, in law, be adjudged faulty. Per DANJUMA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OGBUINYA, JCA


This appeal queries the correctness of the decision of the High Court of Kano State, holden at Kano (hereinafter addressed as “the lower Court”), coram judice: Dije Abdu Aboki, J., in Charge No. K/EFCC08/2012, delivered on 5th June, 2014. Before the lower Court, the Appellant and the Respondent were the accused person and the complainant respectively.

The facts of the case, which gave birth to the appeal, are amenable to brevity and simplicity. On 11th October, 2011, the defunct Intercontinental Bank Plc (now Access Bank Plc.) wrote a petition against two of its staff, Bright Evbogbai and the Appellant, to the Economic and Financial Crimes Commission (EFCC): one of the investigative and prosecutorial agencies in Nigeria. The petition alleged that the duo conspired and forged customers’ instructions on stolen letter heads and signatures and fraudulently transferred the sum of N9, 700, 000.00 (Nine Million, Seven Hundred Thousand Naira) to other customers and thereby defrauded the petitioner of the said sum.

The personnel of the EFCC, duly, investigated the allegation and discovered that a prima facie case was made out against them. Consequently, its legal and prosecution unit applied for leave of the lower Court to prefer a charge against them pursuant to the provision of Section 185 (b) of the Criminal Procedure Code. The lower Court granted the application on 7th November, 2012. Sequel to the leave, the Respondent arraigned them before the lower Court on an 8-count charge/information for these offences: conspiracy to commit an unlawful act, obtaining various sums of money by false pretences, forgery and uttering forged documents contrary to the provisions of Sections 8(a), 1(1) (a), 362 and 366 of the Advance Fee Fraud and Other Related Offences Act, 2006 and the Penal Code respectively. The Appellant, with his co-accused, Bright Evbogbai, pleaded not guilty to the counts.

Following the not guilty plea, the lower Court had a full-scale determination of the case. In proof of the case, the Respondent fielded five (5) witnesses, PW1-PW5, and tendered sea of documentary evidence: Exhibits A, B1, B6, C1–C3, D1-D3, E –E3, F1-F3 and G., in defence of the case, the Appellant testified in person, as DW2, and called no other witness. At closure of evidence, the parties, qua counsel, addressed the lower Court. In a considered judgment, delivered on 5th June, 2014, found at pages 243-265 of the printed record, the lower Court found the Appellant guilty of all the offences, convicted him and sentenced him to various terms of imprisonment and fines.

The Appellant was dissatisfied with the decision. Hence, the Appellant, on 19th October, 2015, after an extension of time granted by this Court on 5th October, 2015, filed a 17-ground notice of appeal, seen at the unpagenated portion of the record, and prayed this Court as follows:

1. To allow the Appeal.

2. To set aside the judgment of the lower Court delivered on 5th June, 2014.

3. To declare that the prosecution has failed to prove their case beyond reasonable doubt.

4. To discharge and acquit the Appellant.

5. To order the release of the Appellant from prison custody.

Thereafter, the parties filed and exchanged their briefs of argument in line with the rules governing the hearing of criminal appeals in this Court. The appeal was heard on 9th April, 2018.

During its hearing, learned counsel for the Appellant, Baba Shehu Ahmad, Esq., adopted the Appellant’s brief of argument, filed on 10th October, 2017 and deemed properly filed on 11th October, 2017, as forming his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the Respondent, M. M. Gambo, Esq., adopted the Respondent’s brief of argument, filed on 8th November, 2017 and deemed properly filed on 9th April, 2018, as forming his reactions against the appeal. He urged the Court to dismiss it.

The Appellant, in his brief of argument, distilled a single issue for determination to wit:

Whether or not, the prosecution proved its case beyond reasonable doubt to warrant the conviction of the Appellant by the trial Court.

Admirably, the Respondent adopted the singular issue crafted by the Appellant.

Arguments on the issue.

Learned counsel for the Appellant highlighted the evidence of the Respondent’s witnesses: PW1-PW4. He submitted that the evidence of PW1-PW5 were hearsay which could not be used in judicial proceedings.

He relied on Osho v. State (2012) 8 NWLR (Pt. 1302) 243; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173; Ojiako v. State (1992) 2 NWLR (Pt. 175); Utteh v. State (1992) 2 NWLR (Pt. 223) 257; Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Dare v. State (2009) 6 NWLR (Pt. 1136) 165. He observed that a Court had a duty to reject inadmissible evidence despite lack of objection to it. He cited Nwocha v. State (2012) 9 NWLR (Pt. 1306) 571; Ojo v. Gharoro (Supra); Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246.

He posited that the Respondent did not produce the forged document and the original as required by law. He referred to APC v. PDP (2015) 3-4M JSC 54. He stated the meaning of forge. He asserted that the person whose signature was forged was a vital witness and failure to call him would be fatal to the Respondent’s case. He relied on Alake v. State (1993) 9 NWLR (Pt. 265) 260; Obasi v. Onwuka (1987) NWLR (Pt. 61) 364; Ottih v. Nwanekwe (1990) 3 NWLR (Pt. 140) 550; Aliyu v. State (2013) 67 MJSC (Pt. 11) 64. He noted that offence of forgery must be proved beyond reasonable doubt and without speculation. He referred to Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91; Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189). He added that the onus of proof of forgery lay on the party that asserted and it must be pleaded and proved strictly. He cited Edigin v. Ovbiagbonhia (1993) 5 NWLR (Pt. 293) 267; Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679) 519.

Learned counsel contended that the Exhibits C1-C3, the confessional statements, lacked certainty as they were unsigned and undated and so invalid. He cited Ayaoha v. Obioha (2014) 6 NWLR (Pt. 1404) 445; Omega Bank (Nig.) Plc. v. OBC Ltd. (2015) (sic); Ogbahon v. Trustees of CCC (2002) 1 NWLR (Pt. 749) 675. He claimed that they were made by inducement and threat and so inadmissible. He cited Nwocha v. State (supra). He reasoned that there were material contradictions in Exhibits C1-C3 which created doubt to be resolved in the Appellant’s favour. He referred to State v. Azeez (2008) 14 NWLR (Pt. 1108) 439; Sani v. State (2015) 6-7 MJSC 105; Chukwu v. State (1996) 7 NWLR (Pt. 463).

He insisted that they were inadmissible even though no objection was raised to their admissibility in the lower Court. He relied onOmega Bank (Nig.) Plc. v. OBC Ltd. (Supra); Etim v. Ekpe (1983) 1 SCNLR 120; Almu v. State (2009) 4 MJSC 147. He stated, in the alternative, that they did not relieve the Respondent on its duty of proof. He referred to Afolabi v. State (2016) 4-5 MJSC 1; Abasi v. State (1992) NWLR (Pt. 260) 383.

It was further submitted that Exhibit A, the petition, was not tendered by the maker, who was to be cross-examined on it, and that breached the Appellant’s right to fair hearing as provided in Section 36(6) (d) of the Constitution, as amended. He relied on NIMASA v. Hensmor (Nig.) Ltd. (2015) 5 NWLR (Pt. 1452) 278. He reasoned that the failure of the victims of the offences to testify and be cross-examined denied Appellant his right to fair hearing. He said that original document was not used for the forensic test so that it was doubtful if it was correct and accurate when the Respondent was required to prove the case beyond reasonable doubt. He cited Yanro v. State (2016) 2-3 MJSC 106; Nwosu v. State (1998) 8 NWLR (Pt. 562) 433; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. He reasoned that the lower Court based its decision on speculation when it should not fill gaps in evidence.

He relied on Olalomi v. NIDB (2009) 7 MJSC (Pt. 111) 136; Ibori v. FRN (2009) 3 NWLR (Pt. 1127) 94.

Learned counsel argued that the Appellant was not given fair hearing as enshrined in Section 36(6) (d) of the Constitution, as amended, and the decision should be set aside for being a nullity. He cited Okoye v. COP (2015) 4-5 MJSC 34; Ezeji v. Ike (1997) 2 NWLR (Pt. 486) 206; Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1; Diko v. Ibadan South West L.G. (1997) 2 NWLR (Pt. 486) 235; Idakwo v. Ejiga (2002) 12 MJSC 81; Ikomi v. The State (1986) 1 NSCC 730; Kakih v. PDP (2014) 7-9 MJC 1; Adigun v. A. –G., Oyo State (1987) 1 NWLR (Pt. 53) 678; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 53) 687/(1987) 5 SCNJ 54; Muhammed v. State (2013) 1 MJSC (Pt. 11) 168. He explained that the Appellant’s right to fair hearing was breached because he was not allowed to cross-examine makers of Exhibit A. He took the view that the lower Court rushed the case and did not take proper step. He cited People of Lagos State v. Umaru (2014) 3 MJSC 136 for the meaning of rush. He postulated that the lower Court had no jurisdiction to try the case because of the denial of fair hearing.

He enumerated situations when a trial would be a nullity. He referred to Adeoye v. State (1999) 6 NWLR (Pt. 607) 74; Paulson v. State (2012) 6 NWLR (Pt. 1279) 456; Okoro v. IGP (1953) 14 WACA 370; Kajubo v. State (1988) 1 NWLR (Pt. 73) 721; R. v. Shodipo (1984) 12 WACA 374; Oruche v. C.O.P. (1963) 2 SCNLR 132.

On behalf of the Respondent, learned counsel submitted that the evidence of PW1-PW4 were not hearsay. He explained that Exhibits C1-C3 were written by the Appellant and it was the caution that was written by a person in authority. He posited that the confessional statements, Exhibits C1-C3, were unequivocal so that conviction could be based on them and the Respondent needed not to prove the offences beyond reasonable doubt. He relied on Solola v. State (2005) All FWLR (Pt. 269) 1751. He noted that the Appellant, who was represented by counsel, did not object to their admission and should not complain now. He cited Oseni v. State (2012) 2 SCNJ (Pt. 1) 215. He persisted that they were positive, direct and unequivocal and amounted to admission of guilt and the lower Court was right to convict him on them. He cited Shurumo v. State (2010) All FWLR (Pt. 551) 1406.

Learned counsel contended that the required documents were produced to satisfy proof of forgery. He explained that the prosecution must not call all witness when credible single could prove a case. He cited Akindipe v. State (2012) 6 SCNJ (Pt. 1) 278. He posited that there are no material contradictions in Exhibits C1-C3. He referred to Osung v. State (2012) 6 SCNJ (Pt. 2) 511. He explained that Exhibit C1 was signed by the Appellant on 11th October, 2011 but witnessed by EFCC official on 14th December, 2011. He reasoned that failure to witness Exhibits C2 and C3 was immaterial as the Appellant was duly cautioned before making them. He maintained that they were admissible. He observed that the proper time to object to them was when they were being tendered. He referred to Oseni v. State (supra); Osung v. State (supra). He took the view that PW2, who knew the makers of Exhibit A as co – staff, was a competent witness to tender Exhibit A as its makers did so as staff of the petitioner bank. He persisted that the Appellant was not denied right of fair hearing. He noted that the Appellant did not object to its admission and same was properly tendered under Section 83(a) (ii) of the Evidence Act. He postulated that even though the makers of Exhibit A were named as witnesses, the Respondent was not bound to call them. He relied on Haruna v. A.-G., Fed (2012) 3 SCNJ (Pt. II) 431.

Learned counsel argued that the evidence of PW2 was not hearsay as he testified in his official capacity. He drew the Courts’ attention to the fact that the appeal of the Appellant’s co-convict, Appeal No. CA/K/493/2014, was dismissed on 24th July, 2015 by this Court. He urged the Court to be guided by that decision.

Resolution of the issue.

A clinical examination of the solitary issue, amply reveals that it is dotted with sea of side or adjunct issues itching for distinct determination. It is imperative to place on record, that bags of documentary evidence formed the corpus of the case. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299. I will reap from this coextensive jurisdiction in the appraisal of the galaxy of documentary evidence in this appeal.

One of the Appellant’s chief and foremost grievances is against the validity of the evidence of PW1-PW3. The kernel of his complaint is plain. He chastised them as inadmissible hearsay evidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 3 4) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 143 ) 374; Opara v A. –G. Fed. (2017) 9 NWLR (Pt. 1569) 61.

To begin with, I have given an indepth study to the evidence of PW1 wrapped between pages 214-216 of the record. PW1 was Aminu Zakari Mohammed. At the cradle of his parol evidence, he described his designation as “the chief Medical Director of Aminu Kano teaching Hospital” of Bayero University, Kano. The meat of his evidence is simple: that when the EFCC presented the forged documents, they identified therefrom that the signatures of the signatories to the deposit accounts of Aminu Kano Teaching Hospital with Access Bank Plc. were not theirs. Put differently, they disowned the signatures in the forged documents. To my mind, the viva voca testimony of PW1, as pluck out above, is a classic exemplification of direct oral evidence of what he saw and observed. It therefore, falls within the perimeter of the admissible evidence as decreed by the prescription of Section 126 (a) of the Evidence Act, 2011. It has not, in the least, fracture/defiled the law of evidence as to the bear/wear the stigma of hearsay being smeared on it by the Appellant.

That takes me to the status of the evidence of PW2 and PW3. Their oral testimonies are encased between pages 217-222 of the record.

PW2, Steven Uniwerhiaye, and PW3, Moses Shichet, both testified as staff of Access Bank Plc. Aminu Kano Teaching Hospital branch, Kano, the substantive complainant. Are their evidence hearsay evidence? The answer to the vexed poser is deeply founded in the realm of case-law. In Ishola v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt. 488) 405, the apex Court held.

…it cannot be over emphasized that a company being a legal person or a juristic person can only act through its agents or servants and any agent or servant of a company can therefore give evidence to establish any transaction entered into by that company. Where the official giving the evidence is not the one, who actually took part in the transaction on behalf of the company, such evidence is nonetheless relevant and admissible and will not be discountenanced or rejected as hearsay evidence. The fact that such official did not personally participate in the transaction on which he has given evidence may in appropriate cases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. v. Daewoo (Nig.) Ltd. [1985] 2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Brisco (Nig.) Ltd. [1987] 3 NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187 etc.

See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Saleh v. Bank of the North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581) 52, Interdrill (Nig.) Ltd. v UBA Plc (2017) 13 NWLR (pt. 1581) 52.

The magisterial pronouncements in these ex cathedra authorizes, with due respect, expose the poverty of the alluring submission of the Appellant’s counsel on the stubborn point. It is decipherable from them, that, in the eyes of the law, their evidence cannot be categorized as hearsay. The victim of the crime, Access Bank Plc., is presumed to be a duly incorporated company under the Nigeria Companies and Allied Matters Act. By the registration, it is a persona ficta, a juristic personality which can only act through an alter ego such as its agents or servants, directors, managers, see Kate Enterprise Ltd v. Daewoo (Nig.) td. (supra); Interdrill (Nig.) Ltd. v. UBA Plc. (Supra). To label the evidence of PW2 and PW3 as hearsay, as pontificated by the Appellant, will be antithetical to the corporate personality of the Respondent, a legal abstraction, devoid of blood, flesh, brain and other human features. Flowing from the foregoing, I dishonour the Appellant’s enticing invitation to crucify evidence of PW2 and PW3 on the undeserved altar/shrine of evidential hearsay for want of legal justification.

Another grouse, weaved by the Appellant, against the lower Court’s decision is that it was based outside the evidence of vital witnesses. It is trite, that the law compels the prosecution to call a vital witness: a witness whose evidence will prove a vital point or ingredient of an offence either way. If the prosecution defaults in calling such a vital/material witness, the failure will be fatal to its case which must be proved beyond reasonable doubt. See Sale v. State (2016) 3 NW R (Pt. 1499) 392; Itu v. State (2016) 5 NWLR (Pt. 1506) 443; Pius v. State (2016) NWLR (Pt. 1517); Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 5 ; Ayeni v. State (2016) 12 NWLR (Pt. 1525) 51; Nweke v. State (2017) 15 NWLR (Pt. 1587) 120; Osuagwu v. State (Supra).

At due fidelity to the expectation of the law, I have consulted the record, the bedrock of the appeal, especially at the residence of the evidence of Respondent’s witnesses which colonize pages 214-228 of it. I have perused them, inclusive/alongside the documentary evidence, with the finery of a tooth comb. Interestingly, they are obedient to comprehension. The Respondent’s witnesses, PW1-PW5, in my view, professed credible and unchallenged evidence on the culpability of the Appellant vis-a-vis the offences leveled against him. The reason is not far-fetched. Their evidence disclose that the Appellant was participes criminis in the offences. The law gives the Court the unbridled license to act on unchallenged evidence, see Ayeni v. State (Supra).

It is the prosecution, the Respondent herein, that determines the vitality of evidence, see Nweke v. State (supra). For want of legal justification, I am unable to brand those persons/signatories whose signatures were forged and uttered, listed as prospective witnesses but not called, as vital witnesses whose evidence were/are inimical to the Respondent’s case. My view point is solidified by the hallowed principle of law, that the prosecution, the Respondent herein, is not required to field a host of witnesses to prove ingredients of an offence, Eze v. FRN (2017) 4 NWLR (Pt. 1589) 433; Amadi v. A. –G., Imo State (2017) 11 NWLR (Pt. 1575) 92; Ali v. State (2015) 10 NWLR (Pt. 1466) 1. In other words, in the province of criminal jurisprudence, evidence of one reliable witness, not a legion, is enough to prove commission of a crime. To this end, the Respondent’s neglect to call all the owners of the forged signatures did not constitute a coup de grace in its case. On this score, the Appellant’s dazzling argument on this point is lame. It cannot fly.

The above juridical survey, done in due consultation with the law, demolishes the Appellant’s agitation that his inviolable right to fair hearing, as ingrained in Section 36(6) (d) of the Constitution, as amended, was eroded. It further demonstrates that Exhibit A, which was not tendered by its authors, was tendered by a competent witness, PW2, under the shelter of juristic personality of the Access Bank Plc: the substantive complainant. On this premise, the admission of Exhibit A is not hostile to the law. In effect, I decline the inviting solicitation to ostracise it from the appeal. Contrariwise, I endorse in toto, the lower Court’s reliance on it and welcome it for usage in the appeal.

It remains to attend to the Appellant’s castigations against Exhibits C1-C3. In the first place, it is settled adjectival law that the time to object to a confessional statement is at the point of tendering it otherwise the party will forfeit his right of objection to it on an appeal. See Alarape v. State (2001) 5 NWLR (Pt. 705) 79/(2001) FWLR (Pt. 41) 1872; Oseni v. State (2012) 5 NWLR (Pt. 1293) 351; Igri v. State (2012) 16 NWLR (Pt. 327) 522; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386; John v. State (2017) 16 NWLR (Pt. 1591) 304. The record, the spinal cord of the appeal, clearly, showcases that the Appellant, who was represented by counsel, did not greet the admission of those Exhibits C1-C3 when they were tendered by the Respondent through PW4. The Appellant’s failure, in his infinite wisdom, to register his opposition to the admissibility of those documents drains/divests him of the right to object to their admission on appeal.

In a word, this Court is not the forum competens to raise an objection to their admissibility having sacrificed his right during the trial at the lower Court.

At any rate, I have give a microscopic examination to them. The Appellant, a graduate/holder of Bachelor of Technology in Industrial Physics, duly signed and dated those exhibits. The presence of his signature and dates on them punctures the Appellant’s quarrels on their validity. It will smack of judicial sacrilege to invalidate and expel them when they do not offend the law.

Above all, those Exhibits C1-C3 were extra-judicial statements made by the Appellant to the investigative body, the EFCC. Curiously, he confessed to the commission of the offences in the exhibits. The provision of Section 28 of the Evidence Act, 2011 states:

A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime.

Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner ordained by the provision of the Section 29(2) of the Evidence Act, 2011.

Unarguably, it is within the perimeter of the law for a Court to base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Muhammad v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Agagua v. State (2017) 10 NWLR (Pt. 1573) 254.

When those pre-trial statements were admitted as Exhibits C1-C3, even though the Appellant was their owner, they deserted the defence and metamorphosed into the Respondent’s case, see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214. It flows, that their contents became part and parcel of the Respondent’s case. As already noted, when those extra-judicial statements were tendered for admission in evidence, the Appellant did not raise any protest to their admissibility. The implication is plain. They were voluntarily made. In those exhibits, the Appellant made an undiluted admission of commission of the alleged offences.

Indeed, the kingly position of confession in criminal jurisprudence cannot be overemphasized. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The Appellant’s confessional statements, Exhibits C1-C3, drown his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to offences preferred against him.

It stems from the expansive legal anatomy, conducted with the aid of the law, that the Respondent proved the necessary ingredients of the offence preferred against the Appellant beyond reasonable doubt as mandated by the provision of Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt. See Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230. In the legal parlance, it is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”. See Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpates the Appellant, as the perpetrator of the offences charged is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it.

See Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167. I am least prepared to infuriate the law for fear of its wrath. In effect, all the strictures, which the Appellant rained/poured against the lower Court’s evaluation of the evidence, fly in the face of the law. In the end, I have no option than to resolve the sole issue against the Appellant and in favour of the Respondent.

On the whole, having resolved the mono issue against the Appellant, the destiny of the appeal is obvious. It is devoid of any morsel of merit and deserves the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 5th June, 2014.

NDUKWE-ANYANWU, JCA

I had the privilege of reading in draft form, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA. I agree with his meticulous dealing of the issues canvassed by the parties especially that on hearsay and confessional statement of the Appellant.

In criminal cases, the confession of an accused person to the commission of a crime plays a major part in the determination of his guilt and a Court of law is entitled to convict on the confession if it comes to the conclusion that the confession is voluntary. This is because the confession itself puts an end to the rough and speculative edges of criminal responsibility in terms. Okeke V State (2003) 15 NWLR (Pt. 842) Pg. 25.

In the present appeal, the Appellant made his confessional statement which was tendered without any objection. Objecting at a later stage of the trial precludes the Appellant from denying his confessional statement.

With this and the more comprehensive reasoning in the lead judgment, I also hold that this appeal is unmeritorious. It is dismissed. I affirm the judgment of the lower Court sentencing him to various terms of imprisonment.

DANJUMA, JCA

I have had the privilege of reading in draft the Lead Judgment of His Lordship Festus Obande Ogbuinya, JCA in this appeal, and agree that the appeal be dismissed.

The evidence of Pw2 and Pw3 are certainly not hearsay and admissible evidence as they were both the human agencies through which the corporate persons of Access Bank Plc and the Aminu Kano Teaching Hospital Kano acted.

How could the juristic personam which are legal figments clothed with legal personality sue and be sued. How can they ventilate their claims or defend them in the case of suits or in any dealing? It has to be through the instrumentality of the human with flesh, blood, hands, legs and eyes and brains.

That is why the alter ego of a corporate entity can be discerned; and that is why documents and acts are, by the laws relating to incorporation, stipulated to be performed by some named categories of officers/officials who are humans homo sapiens; e.g of counsel.

The doctrine of corporate personality developed in Salomon Vs Salomon 1897 Ac 22 @ 66 and the lifting of the veil principle in corporate law is a case in point. See also Lee V. Lees Air Farming Ltd (1963) AC 12.

The Nigerian case Law Authority of Ishola Vs Societe Generale Bank Ltd (Ltd) (1997) 2 NWLR (Pt. 488) 405 and a host of other cases including PWOL V. Union Bank Plc (1999) 1 NWLR (Pt. 588) 636 exemplify this stand of common sense.

It is this same principle that governs the rationale for the signing or franking of Legal processes only by legal practitioners as against the law firms as entities and media by which law may be practiced by these same specie of humans.

On the whole, the evidence of a sole witness if credible, may even constitute the basis for a finding of guilt, and that was clearly proved to be so in this case on appeal, which has all the prerequisites of admissible oral and documentary evidence established in favour of a conviction and sentence that cannot, in law, be adjudged faulty. The confessional statements exist. I endorse the decision and affirm same as I also dismiss this appeal.

Appearances:

Baba Shehu Ahmad, Esq. For Appellant(s)

Idris I. Haruna, Esq., PLO, EFCC with him, Douglas I . Gift, Esq . , SLO, EFCC For Respondent(s)