CASE SUMMARY OF:
Bolanle Abeke v. The State (2007) - SC
- Dishonored cheque;
(2007) 9 NWLR (Pt.1040) 411 S.C.;
(2007) 3 S.C (Pt II) 105;
(2007) 3 S.C (Pt II) 105
LEAD JUDGEMENT DELIVERED BY:
* FOR THE APPELLANT
- Mr. Oladipo Okpeseyi.
* FOR THE RESPONDENT
- Y. Oresanya (Mrs.) (DDPP, Ministry of Justice, Ogun State).
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FACT (as relating to the issues)
The appellant, Bolanle Abeke, was charged on an information, before the Abeokuta High Court of Ogun State for an offence under Section 1(1)(b) of the Dishonoured Cheques (Offences) Act No.44 of 1977.
It was alleged that the appellant obtained a credit of N3,300.00 (three thousand, three hundred Naira) from one Ganiyu Ajayi by means of Cheque No. UDB 130480, Nigeria-Arab Bank Nigeria Ltd., Odeda and, the said cheque when presented on due date was dishonoured on the ground that the appellant had not sufficient funds in her account to cover the face value of the said cheque.
The offence was tried by Popoola J. The prosecution called seven witnesses. The appellant testified in her own defence and called three other witnesses. On 11/10/95, Popoola J. in his well-written and comprehensive judgment found the appellant guilty as charged. The appellant was sentenced to a two-year term of imprisonment.
Dissatisfied with her conviction, the appellant brought an appeal before the Court of Appeal, Ibadan (hereinafter reflected to as the court below'). The court below (coram: Roland, Ibiyeye and Tahai JJ.C.A.) in a unanimous judgment on 04/07/2005 dismissed the appellant's appeal and affirmed the conviction of and the sentence' imposed by the trial court.
Still dissatisfied, the appellant has come before this court on a final appeal.
1. Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial court that the prosecution had proved its case beyond reasonable doubt in the circumstance of this case?
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. At page 12 of the record of proceedings P.W.2 testified thus:- "A week later she again begged for another N2,000.00 but he asked her to come back and he later gave her N 1,300.00 because that was what he could afford. His wife was present on both occasions but he on the second occasion insisted to have both documented but accused said instead she would issue a post-dated cheque for both amounts. She opened her bag and brought out the cheque book but said she could only sign her name and put her stamp but could not write and even in the Bank she is always assisted to write her cheques. He obliged her and she signed the cheque and stamped it with her stamp and delivered same to him a post-dated cheque dated 29/9/81." [Please note that the trial Judge recorded the evidence of P.W.2 in the third person rather than in the first person.].
A perusal of the above passage of the evidence of P.W.2 only shows that he had requested from the appellant a documentary proof of the transaction between him and the appellant. Perhaps a simple agreement evidencing the loan transaction would have satisfied the P.W.2. But that is now a speculation. The evidence of P.W.2 shows that it was the appellant who offered to have the transaction documented by the issuance of her cheque. The issuance of a cheque has certain connotations in law. A cheque issued by a drawer and accepted by the drawee serves two purposes. One is that of documenting the particular transaction. The other is that, it is a medium of payment, the issuance of which has far reaching implications in law. I am unable to accept the argument of appellant's counsel that the cheque issued by the appellant was to be seen only as a documentation of the loan transaction between the appellant and P.W.2; and that exhibit B' be held not to possess the attributes ascribed by law to such an instrument.
Section 1(1), (2), (3) of the Dishonoured Cheques (Offences) Act, Cap. 102, Laws of the Federation, 1990 provides:- 1.(1) Any person who - (a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or (b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall:- (i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine, and (ii) in the case of a body corporate be sentenced to a fine of not less than N5,000.00. 2. For the purposes of subsection (1) of this section - (a) the reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property; (b) a person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shall be deemed to have obtained credit for himself by means of the cheque notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified. 3. A person shall not be guilty of an offence under this section if he proves to the satisfaction of the court that when he issued the cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in subsection (1) of this section.
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It is the prerogative of a trial Judge who sees and listens to witnesses to choose which to believe and ascribe probative value to his or her evidence. It is not the place of an appellate court to evaluate evidence, which has already been evaluated by a trial court which has not been shown to be perverse, and the position of the law is very clear on this. An appellate court will not interfere with findings, based on such evaluation unless it is found to be erroneous. - Mukhtar, JSC. Abeke v. State (2007)
The issuance of a cheque has certain connotations in law. A cheque issued by a drawer and accepted by the drawee serves two purposes. One is that of documenting the particular transaction. The other is that, it is a medium of payment, the issuance of which has far reaching implications in law. - Oguntade, JSC. Abeke v. State (2007)
Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a court of law is entitled to convict even though there are shadows of doubt here and there. - Niki Tobi, JSC. Abeke v. State (2007)
That is a fairly rude one on a Judge and I condemn it. Parties do not win cases by aspersion on a Judge who has no opportunity to defend himself beyond the cold records of appeal. A trial Judge, in my view, can call a witness a liar in his judgment if that is borne out from the evidence, That is exactly what Popoola, J. did. I do not think he deserves the sledgehammer of counsel. I am clearly with the learned trial Judge that the appellant is a liar, I equally agree with him that the accused has not made a clear breast of the whole sordid affair. - Niki Tobi, JSC. Abeke v. State (2007)
Counsel also submitted that the intention of the parties as established in evidence was that the cheque should serve as documentation, receipt, acknowledgment, evidence, just to have a piece of documentary evidence of the transaction not an instrument for payment as a legal tender. This is quite a new one for me to learn. I do not think I am prepared to learn it. How can learned counsel say that a post dated cheque serves as a document, receipt or acknowledgment? A cheque is a written order to a bank to pay a certain sum of money from one's bank account to oneself or to another person. It is for all intents and purposes an instrument for payment. It metamorphoses into physical cash on due presentation at the bank and that makes it legal tender. - Niki Tobi, JSC. Abeke v. State (2007)
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