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. In accordance with the Rules of this court briefs were filed and exchanged. The appellants brief was deemed filed on February 15, last years, while the respondent’s brief was deemed filed on November 29, last years.
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 unauthorised 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. They are:
1. Whether the Court of Appeal was right in affirming the decision of the Failed Bank Tribunal in convicting and sentencing the 1st accused on Count 9.
2. Whether count 9 predicated on section 18 (1) (b) of Banks and other Financial Institutions Decree No.25 of 1991 (otherwise referred to as BOFID) is bad for duplicity of charges.
I have examined the Record of Appeal and the briefs filed by counsel. The appellant was convicted because he granted unauthorised credit.
To my mind the live issue for determination is whether the appellant did in fact grant unauthorised credit. Issue1 presented by learned counsel for the respondent would easily resolve that issue and incidentally the only live issue. At the hearing of the appeal on November 29, last year, learned counsel for the appellant Mrs. E. A. Uwaifo adopted the appellant brief deemed filed on February 15, last year and urged this court to allow the appeal.
Learned counsel for the respondent Dr. V .J.O .Azinge adopted the respondent’s brief deemed filed on November 29, last year and urged this court to dismiss the appeal.
Issue 1
Whether the Court of Appeal was right in affirming the decision of the failed Banks Tribunal in convicting and sentencing the first accused person on count 9.
Count 9 reads:
“That you Mohammed Kabir Mamman (m) between November 25,1993 and December 3, 1993 at Kano within the jurisdiction of this tribunal, whilst being Relief Manager of Allied Bank of Nigeria PLC, Kano main branch granted unauthorised advances or credit facilities totaling N61,075,000 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 unauthorised 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 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 third 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 authorised 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 third accused was unauthorised and thereby rendered the first accused liable to conviction on Count 9 under section 18 (1) (b) of BOFID.”
In confirming the judgment of the trial tribunal the 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 l. 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.”
‘’… 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 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 on 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 authorisation 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: ‘’27 ‘’A confession is an admission made at any time 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 1981 2 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 on November 29, 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.”
This testimony satisfies (2) and (3) above. The findings of the trial Tribunal affirmed by the Court of Appeal earlier alluded to are correct. By his own admission the appellant made it abundantly clear that his actions were contrary to the Regulation and circular of the Bank – exhibit FB45. In the circumstances the appellant is guilty of Count 9.Courts should on no account spend precious judicial time on issues that are academic. ‘They should determine live issues, and those are issues that would meet the ends of Justice. See Oyeneye v. Odugbesan 1972 4 SC P.244, Bakare v. A.C.B. Ltd 1986 3 NWLR Pt. 26 P. 47, Nzon v. Jinadu 1987 1 NWLR Pt. 51 P. 537.
The only live issue in this appeal is whether the appellant granted unauthorised credit facility. He admitted it under cross-examination when he said:
‘’Yes, I granted direct credit facility to the third 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 authorisation and I could not stop it …’’
To my mind that settles the live issue in this appeal. But it is important I address whether there was miscarriage of justice as contended by learned counsel for the appellant.
There is said to be miscarriage of justice or failure of justice when the judgment of the court is inconsistent or prejudicial to the right of the party concerned. It is failure on the part of the court to do justice. That is to say the court did what amounts to injustice. See Oladija sanusi v. Oreitan Ameyegun 1992 4 NWLR Pt. 237 P.527, Harrison Okonkwo & anor v. Godwin Udoh 1997 9 NWLR Pt. 519 Pt. 16, Ojo v. O. Anibire & Ors 2004 10 NWLR Pt. 882 P. 571.
There is no miscarriage of justice where legislation states clearly that it is an offence to grant unauthorised credit and the appellant admitted that he granted unauthorized credit to one Alhaji Ibrahim Abubakar in the sum of N61,075,000. The evidence against the appellant is one way and conclusive. The charge (Count 9) was proved beyond reasonable doubt.
The defence of the appellant is that the third accused had always enjoyed direct credit facility and that he could not stop the indulgence. The fact that this was going on does not make it right and the fact that officers of the bank responsible were not brought to book/ charged does not make similar acts of granting unauthorised credit right.
This court does not upset concurrent findings of fact of the courts below except where:
(a) the findings of fact are erroneous or perverse, and/or not based on evidence led.
(b) where there has been in the course of trial some violation of some principle of law of or procedure.
(c) there has been miscarriage of justice. See Ogba v. State 1992 2 NWLR Pt.222 P.164, Ogbu v. State 1992 8 NWLR Pt. 259 P.255, Dakolo v. Dakolo 2011 46 NSCQR P.669
The trial tribunal based on the admission of the appellant found and quite rightly too that he acting as a relief Manager of Allied Bank of Nigeria, Kano branch, granted unauthorised credit facility of N61,075,000 to one Alhaji Ibrahim Abubakar, an act clearly in violation of the Rules and Regulations of the Bank (Exhibit FB45), thereby committing an offence under Section 18 (1) (b) of the Banks and other Financial Institutions Decree No 25 of 1991.
The above was affirmed by the Court of Appeal. My lords, the fact that the appellant told the truth by admitting that he did grant unauthorised credit makes concurrent findings of the courts below correct. The findings are clearly not perverse.