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Olieh v. F.R.N.

GREG OLIEH

ADIELE A. CHUKS

V

FEDERAL REPUBLIC OF NIGERIA

COURT OF APPEAL

(CALABAR DIVISION)

CHRISTOPHER M. CHUKWUMA-ENEH JCA (Presided)

ISTIFANUS THOMAS JCA

JEAN OMOKRI JCA (Read the Lead Judgment)

CA/C/157/99

THURSDAY, 25TH NOVEMBER, 2004

APPEAL - Issues for determination - Duty on Court of Appeal to consider all

BANKING LAW - Failed Banks (Recovery of Debts) and Financial

Malpractices in Banks Decree, 1994, section 23(4) - Import of

BANKING LAW - Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994, section 3(1)(d) - Purport of

BANKING LAW - Fraudulent false accounting - Offence of - What prosecution must prove to succeed therein

COURT - Court of Appeal - Duty on to deal with all issues canvassed before it

CRIMINAL LAW AND PROCEDURE - Conspiracy - When can amount to a triable crime

CRIMINAL LAW AND PROCEDURE - Conviction - Conviction borne out of an offence unknown to law - Effect of

CRIMINAL LAW AND PROCEDURE - ‘Felony’ - Meaning of

CRIMINAL LAW AND PROCEDURE - Fraudulent false accounting Offence of - Gravamen of

CRIMINAL LAW AND PROCEDURE - Fraudulent false accounting Offence of - What prosecution must prove to succeed therein

CRIMINAL LAW AND PROCEDURE - Ingredient of an offence - Special or specific intent forming - Need to prove to secure a conviction

CRIMINAL LAW AND PROCEDURE - ‘Irregularity and malpractice’ -

Whether constitute offences known to the Nigerian Criminal Law

CRIMINAL LAW AND PROCEDURE - Unlawful act - When an act can be said to be so

EVIDENCE - Burden of proof in criminal cases - On whom lies

EVIDENCE - Documentary evidence - Importance of in assessing oral testimony

EVIDENCE - Proof beyond reasonable doubt - Meaning of

JURISDICTION -  Lack of jurisdiction - Effect

STATUTE - Criminal Procedure Act, section 166 - Purport of

STATUTE - Failed Banks (Recovery of Debts) and Financial

Malpractices in Banks Decree, 1994, section 23(4) - Import of

STATUTE - Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994, section 3(1)(d) - Purport of

WORDS AND PHRASES - ‘Felony’ - Meaning of

WORDS AND PHRASES - ‘Intent to defraud’ - Meaning of

WORDS AND PHRASES - ‘Proof beyond reasonable doubt’ - Meaning of

Issues:

1.              Whether the appellants can be convicted for conspiracy to boost an account when such offence is unknown in Nigerian law.

2.              Whether from the evidence before the Tribunal, the prosecution had proved beyond all reasonable doubt that the African Continental Bank Plc. [A.C.B. Plc.] account with the Central Bank of Nigeria was boosted by the activities of the appellants.

3.              Whether the appellants can be convicted for conspiracy simpliciter under section 516 of the Criminal Code without their being so charged and taking their plea accordingly.

Facts:

In 1994, African Continental Bank Plc. (A.C.B. Plc.) due to its poor liquidity problem was taken over by the Central Bank of Nigeria (C.B.N.) which appointed the bank’s management team led by the 1st accused person one Ejiofor A. Ezekwe (now at large) as the chief executive/managing director and charged the team with the responsibility of turning the bank around by mapping out strategies to achieve their aim. In carrying out this responsibility, in November 1995, the 1st accused through the zonal heads instructed the branch managers to embark on massive and aggressive mobilization of funds in order to regularize the bank’s liquidity problems with the Central Bank of Nigeria and keep the bank afloat.

Following an investigation into the activities of the bank, the appellants who were the branch manager, Trans Amadi Branch, Port Harcourt and zonal head of A.C.B. Plc. respectively with nine others were charged before the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Tribunal, Zone V, Lagos for offences of stealing contrary to section 390(9); false accounting contrary to section 435(2) and conspiracy contrary to section 516  of the Criminal Code. They were also charged with the offences under sections 19, 20 and 23(4) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree, 1994 (hereinafter, Failed Banks Decree).

The appellants were found guilty and convicted on three counts for falsely boosting the balance of A.C.B. Plc.’s clearing account with the Central Bank of Nigeria contrary to section 435(2) of the Criminal Code and punishable under section 23(4) of the Failed Banks Decree. While the 1 st appellant was sentenced to a fine of N20,000 (twenty thousand naira ) or 9 months imprisonment in default of payment of fine, the 2nd appellant was sentenced to a fine of N30,000 (thirty thousand naira) or 12 months imprisonment in default of payment of the fine.

Dissatisfied with the conviction and sentence, the appellants appealed to the Special Appeal Tribunal which was subsequently dissolved by the coming into operation of the 1999 Constitution. The appeal was therefore transferred to the Court of Appeal, which court consolidated the appeals of the 1st and 2nd appellants.