CASE TITLE: ATABO v. FRN (2023) LPELR-61080 (CA)
JUDGMENT DATE: 25TH JUNE, 2023
PRACTICE AREA: CRIMINAL LAW AND PROCEDURE
LEAD JUDGMENT: YARGATA BYENCHIT NIMPAR, J.C.A.
SUMMARY OF JUDGMENT:
INTRODUCTION:
This appeal borders on Criminal Law and Procedure.
FACTS:
This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja division, delivered on March 2, 2020, in Charge No. FCT/HC/CR/144/2016, wherein the Court below found the Appellant guilty on all 15 counts for the offense of misappropriation and forgery pursuant to Sections 309 and 364 of the Penal Code (respectively).
The Appellant/Defendant was the chairman of the Parents Teachers Association (PTA) of Esteem International School. By reason of this position, he is a cosignatory with one Mariya Sirajo (PW4) to the PTA’s First Bank Account. Sometime in 2012, during the Appellant’s tenure as chairman, it was discovered that about N8,810,000.00 (Eight Million, Eight Hundred and Ten Thousand Naira only) was alleged to have been transferred from the PTA’s account to the Appellant’s personal account. The Appellant was arrested and thereafter arraigned before the Court below on a 15-count charge of misappropriation and forgery.
The amended charge was dated May 23, 2016.
The respondent/prosecution called a total of five witnesses and tendered exhibits A, B, C, D, E, F, G, I, J, K, L, M, N, O, P, Q, and R. The Appellant alleged that Exhibit M (the confessional statement) was not voluntarily made. A trial within a trial was conducted, after which the confessional statements were admitted as evidence. The Appellant/Defendant called five witnesses and tendered Exhibits DI to D12. At the end of the trial, the Court below found the Appellant guilty and convicted the Appellant on all 15 counts.
Consequently, the Appellant was convicted and sentenced to two years imprisonment on Count 1 and 14 years imprisonment on Counts 2 to 15, both running concurrently pursuant to Section 319 of the Administration of Criminal Justice Act.
Dissatisfied with the decision, the Appellant filed this appeal.
ISSUE(S) FOR DETERMINATION:
The appeal was determined on the following issues:
- Whether, without any proof by the prosecution that the sum of N8,810,00.00 (Eight Million Eight Hundred and Ten Thousand Naira) was transferred by the Appellant out of the Parent Teachers Association account of the Esteem International School to the Appellant’s private account for his private purposes, the Appellant can be convicted under Court 1 for misappropriation of the amount on the basis of a questioned confessional statement?
- Whether Exhibit “k” can be corroborative of the alleged admission by the Appellant of the offences in the Charge especially the offences in Count 1, when the Appellant denied making the exhibit, gave evidence that the same was forged, and the Court abdicated its duty to evaluate the same?
- Whether the failure and/or neglect of the Court below to evaluate the body of evidence, including those that support the Appellant’s defence as raised by him that he did not misappropriate the sum laid in Count 1 of the Charge nor commit the offence laid in Count 2 to 15 of the Charge, does not render the judgment of the Court below perverse.
- Whether the decision of the Court below that Exhibit M or T2 is admissive of the offences contained in the Charge is not perverse
- Whether it was open for the Court below to find and convict the Appellant on the charges of forgery without any evidence whatsoever from a forensic expert or Mariya Sirajo in relation to the allegation of forgery of the signature of Mariya Sirajo on cheques and bank transfer forms by the Appellant?
- Whether Sections 17(1) and (2) of the Administration of Criminal Justice Act LFN 2015 were not controverted by the Respondent in the way and manner Exhibit T2 was obtained from the Appellant thus rendering the same inadmissible and void?
Put another way, whether Section 17(1) and (2) of the Administration of Criminal Justice Act LFN 2015 can be given a permissive construction instead of a mandatory construction?”
DECISION/HELD:
The appeal was dismissed.
RATIOS:
- CRIMINAL LAW AND PROCEDURE- OFFENCE OF CRIMINAL MISAPPROPRIATION: Whether the exact amount misappropriated must be proved to sustain a charge for the offence of criminal misappropriation
- CRIMINAL LAW AND PROCEDURE- OFFENCE OF FORGERY: Meaning of forgery
- CRIMINAL LAW AND PROCEDURE- OFFENCE OF FORGERY: Whether the need for forensic report confirming forgery is dispensed with where there is an admissible confessional statement
- EVIDENCE- BURDEN OF PROOF/ONUS OF PROOF: On whom lies the burden of proving allegation of forgery
- EVIDENCE- CROSS-EXAMINATION: Effect of evidence elicited during cross-examination
- EVIDENCE- EVIDENCE OF WITNESS(ES): Whether a Court can accept part of witness evidence and reject other parts
- EVIDENCE- CONFESSIONAL STATEMENT: Distinction between a confessional statement challenged on the ground that the accused did not make the statement and a confessional statement challenged on the ground that it was not voluntarily made
- EVIDENCE- CONFESSIONAL STATEMENT: Tests for determining the truth or weight to attach to a confessional statement before a court can convict on same
- EVIDENCE- CONFESSIONAL STATEMENT: Position of the law where a confessional statement is objected to on the ground that it was not voluntarily made
- EVIDENCE- CONFESSIONAL STATEMENT: Effect of failure to comply with the Administration of Criminal Justice Act in the process of taking the confessional statement of an accused person
- EVIDENCE- TRIAL WITHIN TRIAL: Effect of failure to appeal against the ruling delivered in a trial within trial
- EVIDENCE- CONFESSIONAL STATEMENT: Whether a court can convict solely on the confessional statement of an accused person
- EVIDENCE- CONFESSIONAL STATEMENT: Whether a court can convict on a retracted confessional statement
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