Court determines live issues, not academic exercise – Rhodes-Vivour JSC

Dissatisfied with the judgment, he appealed. The appeal came before the Court of Appeal, Benin Division. The concluding paragraph of the judgment of that court reads:“On the whole, for the reasons stated above by me, this appeal succeeds in part and it is hereby allowed appropriately. The conviction and sentence of the appellant pursuant to […]

Dissatisfied with the judgment, he appealed. The appeal came before the Court of Appeal, Benin Division. The concluding paragraph of the judgment of that court reads:
“On the whole, for the reasons stated above by me, this appeal succeeds in part and it is hereby allowed appropriately. The conviction and sentence of the appellant pursuant to count 9 of the Amended Charge by the Tribunal are affirmed and confirmed respectively and accordingly. However, the appellant’s conviction and sentence on count 11 are quashed and I hereby order that the said count 11 against the appellant be struck out.
This appeal is against that judgment.
Learned counsel for the appellant formulated a sole issue for determination. It reads:
1. Was the appellate court right in upholding the interpretation of the Tribunal that section 18(1)(b) of BOFID creates two offences and thereby held appellant guilty for granting unauthorized advances or credit facility in contravention of exhibit FB45.
On the other side of the fence learned counsel for the respondent formulated two issues for determination of this appeal.
I have examined the Record of Appeal and the briefs filed by counsel. The appellant was convicted because he granted unauthorized credit. To my mind the live issue for determination is whether the appellant did in fact grant unauthorized credit. Issue 1 presented by learned counsel for the respondent would easily resolve that issue and incidentally the only live issue.
ISSUE 1
Whether the Court of Appeal was right in affirming the decision of the failed Banks Tribunal in convicting and sentencing the 1st accused person on count 9.
COUNT 9 reads:
“That you Mohammed Kabir MMAM MAN (m) between the 25th day of November, 1993 and 3rd December 1993 at Kano within the jurisdiction of this tribunal, whilst being Relief Manager of Allied Bank of Nigeria PLC, Kano main branch granted unauthorized advances or credit facilities totalling N61,075,000 (Sixty-one million, seventy five thousand Naira only) to your customer, one Alhaji Ibrahim Abubakar Mohammed (m), in violation of the Rules and Regulations of the Bank and thereby committed an offence contrary to section 18 (1) (b) of the Banks and other Financial Institutions Decree No.25 of 1991”
The appellant was charged with granting unauthorized advances or credit facilities amounting to N61,075,000 to Alhaji Ibrahim Abubakar, a customer of the Bank contrary to section 18(1)(b) of the Banks and other financial institutions Decree No.25 of 1991, and the Rules and Regulations of Allied Bank.
After reviewing evidence the learned trial judge found the appellant (1st accused) guilty on count 9.
His lordship said:
“The 1st accused to my mind contributed in perpetuating the irregularity, if not illegality associated with the instant credit facility granted to the 3rd accused irrespective of the huge amount involved and irrespective of the embargo imposed on granting such facility. The Rules and Regulation shown to have been violated are found in exhibit FB45. The 1st accused was not authorized or empowered by the Bank to grant direct credit as he did. It was granted contrary to the Regulation and circular of the Bank, exhibit FB45 disallowing the grant of credit facility. The direct facility allowed the accused was unauthorized and thereby rendered the 1st accused liable to conviction on count 9 under section 18(1) (b) of BOFID.”
In confirming the judgment of the trial tribunal Court of Appeal said:
“I cannot agree more with the above stated conclusions of the learned trial judge. The defence of ignorance of the credit guidelines glibly relied upon by the appellant and his exercise that Alhaji I.A. Mohammed had long been accorded special privileges of credit facilities from the Banks Kano branch are of no moment and cannot avail him. Unfortunately for the appellant, he got ensured and shackled when he contravened his employers guidelines with his two eyes wide opened and his understanding antenna properly tuned. He has himself to blame for his indiscretion.”
Concluding the Court of Appeal then said:
“…………….In my sincere view, the Tribunal made far reaching findings of facts after assessment and evaluation of the evidence adduced before it unhesitatingly, I hold that the case against the appellant on count 9 was proved.”
Learned counsel for the appellant observed that there is miscarriage of justice in the concurrent findings of two lower courts as it concerns count 9, contending that the interpretation of section 18(1) (b) of the Decree by both courts below affected the charge consequently the entire proceedings at the trial. She further observed that heavy weight was placed on exhibit FB45 by both courts without calling the maker. She urged this court to acquit and discharge the appellant on count 9.
Learned counsel for the respondent submitted that the Court of Appeal was right in affirming the decision of the Failed Bank Tribunal in count 9 as all the necessary ingredients of section 18(1) (b) of BOFID was proved and established by the prosecution as required by law. He urged this court of uphold the findings of the lower court in respect of count 9 of the charge.
To succeed in a charge under section 18(1) (b) of BOFID the prosecution must establish the following to the satisfaction of the court.
(1) that the accused person is a Manager or officer of              the Bank.
(2) that the accused person granted an advance loan or credit facility to a person.
(3) that the credit facility was granted without authorization as provided by the Rules and Regulations of the Bank, or
(4) where security is required such security shall be deposited in the Bank before the advance, loan or credit facility is approved and given to the customer.
(1) (2) and (3) must coexist. (4) becomes mandatory only if security is required.
Now, Section 27 of the Evidence Act states that-
“27 “A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime.”
The position of the law is that once the court is satisfied that the confession is voluntary it can convict an accused person. A confession is an acknowledgment of guilt by whoever makes the confession and it is usually in writing but may be made orally. It is relevant and admissible when it identifies the person who committed the offence and proves the fact that constitutes one or all the ingredients of the offence. See
Yusuf v. State 1976 6 SC p.167
Igbinovia v. State 19812 SC p.5
The appellant in his written statement to the Police said:
“…………I was posted to Kano January 1992 as Asst. Manager. In September 1992 I was given Head of Customer Services in charge of Operations, that is officer in charge of general duties within the banking Hall and in charge of staff duties sometime in 29th November 1993 Mr. Balo Jabo left the branch for Victoria Island Branch. I was overseeing the day to day running of the branch until when the new Manager Mr. Aminu Suleiman resume as the Manager.”
The above satisfies (1) above that the appellant is a Manager or officer of the Bank
Under cross-examination the appellant said what amounts to an admission. He said:
“…………Yes I granted direct credit facility to the 3rd accused, while I was relief Manager of the branch. It was a regular practice of the bank to allow the 3rd accused direct credit facility. There was no formal authorization and I could not stop it.”