OKOLO v. FRN

CITATION: (2018) LPELR-45431(CA)

In the Court of AppealIn the Kaduna Judicial Division

Holden at Kaduna

ON FRIDAY, 22ND JUNE, 2018Suit No: CA/K/24C/2016

Before Their Lordships:

UZO IFEYINWA NDUKWE-ANYANWU Justice, Court of AppealMOHAMMED AMBI-USI DANJUMA Justice, Court of AppealOBANDE FESTUS OGBUINYA Justice, Court of Appeal

BetweenOKECHUKWU OKOLO - Appellant(s)

AndFEDERAL REPUBLIC OF NIGERIA - Respondent(s)

RATIO DECIDENDI

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1. EVIDENCE - HEARSAY EVIDENCE: Whether hearsay evidence is admissible; meaning andnature of an hearsay evidence"One of the appellant's chief and foremost grievances is against the validity of the evidenceof PW1-PW3. The kernel of his complaint is plain. He chastised them as inadmissible hearsayevidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, onwhat he knows personally. Where a witness gives evidence on what another person told himabout events, then it is not direct evidence which has acquired the nickname: hearsay orsecond hand evidence. In the view of the law, hearsay evidence can only be used to inform aCourt about what a witness heard another say and not establish the truth of an event, seeSection 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act,2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301)141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt.1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt.1430) 374; Opara v A. -G. Fed. (2017) 9 NWLR (Pt. 1569) 61.To begin with, I have given an indepth study to the evidence of PW1 wrapped between pages214-216 of the record. PW1 was Aminu Zakari Mohammed. At the cradle of his parolevidence, he described his designation as "the chief Medical Director of Aminu Kano teachingHospital" of Bayero University, Kano. The meat of his evidence is simple: that when the EFCCpresented the forged documents, they identified therefrom that the signatures of thesignatories to the deposit accounts of Aminu Kano Teaching Hospital with Access Bank Plc.were not theirs. Put differently, they disowned the signatures in the forged documents. To mymind, the viva voca testimony of PW1, as pluck out above, is a classic exemplification ofdirect oral evidence of what he saw and observed. It therefore, falls within the perimeter ofthe admissible evidence as decreed by the prescription of Section 126 (a) of the Evidence Act,2011. It has not, in the least, fracture/defiled the law of evidence as to the bear/wear thestigma of hearsay being smeared on it by the appellant."Per OGBUINYA, J.C.A. (Pp. 12-13,Paras. A-E) - read in context

2. EVIDENCE - EVALUATION OF EVIDENCE: Whether an Appellate Court is in a position as atrial court to evaluate documentary evidence"A clinical examination of the solitary issue, amply reveals that it is dotted with sea of side oradjunct issues itching for distinct determination. It is imperative to place on record, that bagsof documentary evidence formed the corpus of the case. Interestingly, the law, in order torepel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluationof documentary evidence, see Ezeuko v State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni(2014) 16 NWLR (Pt. 1433) 299. I will reap from this coextensive jurisdiction in the appraisalof the galaxy of documentary evidence in this appeal."Per OGBUINYA, J.C.A. (P. 11, Paras. D-F)- read in context

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3. EVIDENCE - HEARSAY EVIDENCE: Whether servant or agent of a company giving evidenceon transaction or activity of the company which he never took part amounts hearsay evidence"That takes me to the status of the evidence of PW2 and PW3. Their oral testimonies areencased between pages 217-222 of the record. PW2, Steven Uniwerhiaye, and PW3, MosesShichet, both testified as staff of Access Bank Plc. Aminu Kano Teaching Hospital branch,Kano, the substantive complainant. Are their evidence hearsay evidence? The answer to thevexed poser is deeply founded in the realm of case-law. In Ishola v. Societe Generale BankLtd. (1997) 2 NWLR (Pt. 488) 405, the apex Court held.....it cannot be over emphasized that a company being a legal person or a juristic person canonly act through its agents or servants and any agent or servant of a company can thereforegive evidence to establish any transaction entered into by that company. Where the officialgiving the evidence is not the one, who actually took part in the transaction on behalf of thecompany, such evidence is nonetheless relevant and admissible and will not bediscountenanced or rejected as hearsay evidence. The fact that such official did notpersonally participate in the transaction on which he has given evidence may in appropriatecases, however, affect the weight to be attached to such evidence, Kate Enterprises Ltd. v.Daewoo (Nig.) Ltd. [1985] 2 NWLR (Pt. 5) 116; Anyaebosi v. R. T. Brisco (Nig.) Ltd. [1987] 3NWLR (Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede Obianke (1976) 9-10 SC 178, 187etc. See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (1985) 2 NWLR (Pt. 5) 116; Saleh v.Bank of the North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581) 52, Interdrill (Nig.) Ltd. v UBAPlc (2017) 13 NWLR (pt. 1581) 52.The magisterial pronouncements in these ex cathedra authorizes, with due respect, exposethe poverty of the alluring submission of the appellant's counsel on the stubborn point. It isdecipherable from them, that, in the eyes of the law, their evidence cannot be categorized ashearsay. The victim of the crime, Access Bank Plc., is presumed to be a duly incorporatedcompany under the Nigeria Companies and Allied Matters Act. By the registration, it is apersona ficta, a juristic personality which can only act through an alter ego such as its agentsor servants, directors, managers, see Kate Enterprise Ltd v. Daewoo (Nig.) Ltd. (supra);Interdrill (Nig.) Ltd. v. UBA Plc. (supra). To label the evidence of PW2 and PW3 as hearsay, aspontificated by the appellant, will be antithetical to the corporate personality of therespondent, a legal abstraction, devoid of blood, flesh, brain and other human features.Flowing from the foregoing, I dishonour the appellant's enticing invitation to crucify evidenceof PW2 and PW3 on the undeserved altar/shrine of evidential hearsay for want of legaljustification."Per OGBUINYA, J.C.A. (Pp. 13-16, Paras. F-B) - read in context

4. EVIDENCE - CALLING OF WITNESS(ES): Duty of the prosecution to call vital witnesses andeffect of failure thereof"It is trite, that the law compels the prosecution to call a vital witness: a witness whoseevidence will prove a vital point or ingredient of an offence either way. If the prosecutiondefaults in calling such a vital/material witness, the failure will be fatal to its case which mustbe proved beyond reasonable doubt. See Sale v. State (2016) 3 NWLR (Pt. 1499) 392; Itu v.State (2016) 5 NWLR (Pt. 1506) 443; Pius v. State (2016) NWLR (Pt. 1517); Smart v. State(2016) 9 NWLR (Pt. 1518) 447; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1518) 520; Ayeni v.State (2016) 12 NWLR (Pt. 1525) 51; Nweke v. State (2017) 15 NWLR (Pt. 1587) 120;Osuagwu v. State (supra)."Per OGBUINYA, J.C.A. (P. 16, Paras. C-F) - read in context

5. EVIDENCE - UNCHALLENGED/UNCONTROVERTED EVIDENCE: Effect of anunchallenged/uncontroverted evidence"The law gives the Court the unbridled license to act on unchallenged evidence, see Ayeni v.State (supra)."Per OGBUINYA, J.C.A. (P. 17, Paras. C-D) - read in context

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6. EVIDENCE - CALLING OF WITNESS(ES): Discretion of the prosecution in calling witnesses"It is the prosecution, the respondent herein, that determines the vitality of evidence, seeNweke v. State (supra). For want of legal justification, I am unable to brand thosepersons/signatories whose signatures were forged and uttered, listed as prospectivewitnesses but not called, as vital witnesses whose evidence were/are inimical to therespondent's case. My view point is solidified by the hallowed principle of law, that theprosecution, the respondent herein, is not required to field a host of witnesses to proveingredients of an offence, Eze v. FRN (2017) 4 NWLR (Pt. 1589) 433; Amadi v. A. -G., ImoState (2017) 11 NWLR (Pt. 1575) 92; Ali v. State (2015) 10 NWLR (Pt. 1466) 1. In other words,in the province of criminal jurisprudence, evidence of one reliable witness, not a legion, isenough to prove commission of a crime. To this end, the respondent's neglect to call all theowners of the forged signatures did not constitute a coup de grace in its case. On this score,the appellant's dazzling argument on this point is lame. It cannot fly.The above juridical survey, done in due consultation with the law, demolishes the appellant'sagitation that his inviolable right to fair hearing, as ingrained in Section 36(6) (d) of theConstitution, as amended, was eroded."Per OGBUINYA, J.C.A. (Pp. 17-18, Paras. D-E) - read incontext

7. EVIDENCE - CONFESSIONAL STATEMENT: When is the proper time to raise an objection tothe admissibility of a confessional statement"It remains to attend to the appellant's castigations against Exhibits C1-C3. In the first place,it is settled adjectival law that the time to object to a confessional statement is at the point oftendering it otherwise the party will forfeit his right of objection to it on an appeal. SeeAlarape v. State (2001) 5 NWLR (Pt. 705) 79/(2001) FWLR (Pt. 41) 1872; Oseni v. State (2012)5 NWLR (Pt. 1293) 351; Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Dibia v. State (2017) 12NWLR (Pt. 1579) 196; Muhammad v. State (2017) 13 NWLR (Pt. 1583) 386; John v. State(2017) 16 NWLR (Pt. 1591) 304. The record, the spinal cord of the appeal, clearly, showcasesthat the appellant, who was represented by counsel, did not greet the admission of thoseExhibits C1-C3 when they were tendered by the respondent through PW4. The appellant'sfailure, in his infinite wisdom, to register his opposition to the admissibility of thosedocuments drains/divests him of the right to object to their admission on appeal.In a word, this Court is not the forum competens to raise an objection to their admissibilityhaving sacrificed his right during the trial at the lower Court."Per OGBUINYA, J.C.A. (Pp. 19-20,Paras. A-A) - read in context

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8. EVIDENCE - CONFESSIONAL STATEMENT: Requirements of the law on confessionalstatement"Above all, those Exhibits C1-C3 were extra-judicial statements made by the appellant to theinvestigative body, the EFCC. Curiously, he confessed to the commission of the offences inthe exhibits. The provision of Section 28 of the Evidence Act, 2011 states:A confession is an admission made at anytime by a person charged with a crime stating orsuggesting he inference that the committed that crime.Once a confession is relevant, it is admissible against an accused who made it save it isexcluded in the manner ordained by the provision of the Section 29(2) of the Evidence Act,2011.Unarguably, it is within the perimeter of the law for a Court to base conviction on free, cogentand positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008)9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017)12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State(2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v.State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v.COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177;Muhammad v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Agagua v. State(2017) 10 NWLR (Pt. 1573) 254.When those pre-trial statements were admitted as Exhibits C1-C3, even though the appellantwas their owner, they deserted the defence and metamorphosed into the respondent's case,see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt.1359) 214. It flows, that their contents became part and parcel of the respondent's case. Asalready noted, when those extra-judicial statements were tendered for admission in evidence,the appellant did not raise any protest to their admissibility. The implication is plain. Theywere voluntarily made. In those exhibits, the appellant made an undiluted admission ofcommission of the alleged offences.Indeed, the kingly position of confession in criminal jurisprudence cannot be overemphasized.Under our procedural law, confession has been classified as the best and strongest evidence,stronger than that of an eye witness, see Smart v. State (2016) 9 NWLR (Pt. 1518) 447;Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196;FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72.By a confession, an accused surrenders himself to the law and becomes his own accuser, seeAdeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant's confessional statements,Exhibits C1-C3, drown his right to presumption of innocence, which is enshrined in Section36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of therequisite mens rea and actus reus in relation to offences preferred against him.It stems from the expansive legal anatomy, conducted with the aid of the law, that therespondent proved the necessary ingredients of the offence preferred against the appellantbeyond reasonable doubt as mandated by the provision of Section 135 (1) of the EvidenceAct, 2011. After all, proof beyond reasonable doubt does not evince proof beyond alliota/shadow of doubt. See Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State(2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State(2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230. In the legalparlance, it is attained when the evidence is so strong against a man as to leave only aremote possibility in his favour which can be dismissed with a sentence "of course it ispossible but not in the least probable". See Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. Itimplies that the solemn finding of the lower Court, which inculpates the appellant, as theperpetrator of the offences charged is unassailable. Due to its unimpeachable status, thisCourt is robbed of the jurisdiction to tinker with it. See Olatunbosun v. State (2013) 17 NWLR(Pt. 1382) 167. I am least prepared to infuriate the law for fear of its wrath. In effect, all thestrictures, which the appellant rained/poured against the lower Court's evaluation of theevidence, fly in the face of the law."Per OGBUINYA, J.C.A. (Pp. 20-24, Paras. C-A) - read incontext

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9. EVIDENCE - CONFESSIONAL STATEMENT: Requirements of the law on confessionalstatement"In criminal cases, the confession of an accused person to the commission of a crime plays amajor part in the determination of his guilt and a Court of law is entitled to convict on theconfession if it comes to the conclusion that the confession is voluntary. This is because theconfession itself puts an end to the rough and speculative edges of criminal responsibility interms. OKEKE V STATE (2003) 15 NWLR (PT. 842) PG. 25.In the present appeal, the Appellant made his confessional statement which was tenderedwithout any objection. Objecting at a later stage of the trial precludes the Appellant fromdenying his confessional statement."Per NDUKWE-ANYANWU, J.C.A. (Pp. 24-25, Paras. F-C) -read in context

10. EVIDENCE - HEARSAY EVIDENCE: Whether servant or agent of a company giving evidenceon transaction or activity of the company which he never took part amounts hearsay evidence"The evidence of Pw2 and Pw3 are certainly not hearsay and admissible evidence as theywere both the human agencies through which the corporate persons of Access Bank Plc andthe Aminu Kano Teaching Hospital Kano acted. How could the juristic personam which arelegal figments clothed with legal personality sue and be sued. How can they ventilate theirclaims or defend them in the case of suits or in any dealing? It has to be through theinstrumentality of the human with flesh, blood, hands, legs and eyes and brains. That is whythe alter ego of a corporate entity can be discerned; and that is why documents and acts are,by the laws relating to incorporation, stipulated to be performed by some named categoriesof officers/officials who are humans homo sapiens; e.g of counsel.The doctrine of corporate personality developed in Salomon Vs Salomon 1897 Ac 22 @ 66 andthe lifting of the veil principle in corporate law is a case in point. See also LEE V. LEES AIRFARMING LTD (1963) AC 12.The Nigerian case Law Authority of Ishola Vs Societe Generale Bank Ltd (Ltd) (1997) 2 NWLR(Pt. 488) 405 and a host of other cases including PWOL V. UNION BANK PLC 1999 1 NWLR (Pt.588) 636 exemplify this stand of common sense.It is this same principle that governs the rationale for the signing or franking of Legalprocesses only by legal practitioners as against the law firms as entities and media by whichlaw may be practiced by these same specie of humans."Per DANJUMA, J.C.A. (Pp. 25-27,Paras. E-A) - read in context

11. EVIDENCE - EVIDENCE OF A SINGLE WITNESS: Whether a court can convict on theevidence of a single witness"On the whole, the evidence of a sole witness if credible, may even constitute the basis for afinding of guilt, and that was clearly proved to be so in this case on appeal, which has all theprerequisites of admissible oral and documentary evidence established in favour of aconviction and sentence that cannot, in law, be adjudged faulty."Per DANJUMA, J.C.A. (P. 27,Paras. B-D) - read in context

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OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the

Leading Judgment): This appeal queries the correctness

of the decision of the High Court of Kano State, holden at

Kano (hereinafter addressed as “the lower Court”), coram

judice: Dije Abdu Aboki, J., in Charge No. K/EFCC08/2012,

delivered on 5th June, 2014. Before the lower Court, the

appellant and the respondent were the accused person and

the complainant respectively.

The facts of the case, which gave birth to the appeal, are

amenable to brevity and simplicity. On 11th October, 2011,

the defunct Intercontinental Bank Plc (now Access Bank

Plc.) wrote a petition against two of its staff, Bright

Evbogbai and the appellant, to the Economic and Financial

Crimes Commission (EFCC): one of the investigative and

prosecutorial agencies in Nigeria. The petition alleged that

the duo conspired and forged customers’ instructions on

stolen letter heads and signatures and fraudulently

transferred the sum of N9, 700, 000.00 (Nine Million,

Seven Hundred Thousand Naira) to other customers and

thereby defrauded the petitioner of the said sum.

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The personnel of the EFCC, duly, investigated the

allegation and discovered that a prima facie case was made

out against them. Consequently, its legal and prosecution

unit applied for leave of the lower Court to prefer a charge

against them pursuant to the provision of Section 185 (b) of

the Criminal Procedure Code. The lower Court granted the

application on 7th November, 2012. Sequel to the leave,

the respondent arraigned them before the lower Court on

an 8-count charge/information for these offences:

conspiracy to commit an unlawful act, obtaining various

sums of money by false pretences, forgery and uttering

forged documents contrary to the provisions of Sections

8(a), 1(1) (a), 362 and 366 of the Advance Fee Fraud and

Other Related Offences Act, 2006 and the Penal Code

respectively. The appellant, with his co-accused, Bright

Evbogbai, pleaded not guilty to the counts.

Following the not guilty plea, the lower Court had a full-

scale determination of the case. In proof of the case, the

respondent fielded five (5) witnesses, PW1-PW5, and

tendered sea of documentary evidence: Exhibits A, B1, B6,

C1–C3, D1-D3, E –E3, F1-F3 and G., in defence of the

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case, the appellant testified in person, as DW2, and called

no other witness. At closure of evidence, the parties, qua

counsel, addressed the lower Court. In a considered

judgment, delivered on 5th June, 2014, found at pages

243-265 of the printed record, the lower Court found the

appellant guilty of all the offences, convicted him and

sentenced him to various terms of imprisonment and fines.

The appellant was dissatisfied with the decision. Hence, the

appellant, on 19th October, 2015, after an extension of time

granted by this Court on 5th October, 2015, filed a 17-

ground notice of appeal, seen at the unpagenated portion of

the record, and prayed this Court as follows:

1. To allow the Appeal.

2. To set aside the judgment of the lower Court

delivered on 5th June, 2014.

3. To declare that the prosecution has failed to prove

their case beyond reasonable doubt.

4. To discharge and acquit the Appellant.

5. To order the release of the Appellant from prison

custody.

Thereafter, the parties filed and exchanged their briefs of

argument in line with the rules governing the hearing of

criminal appeals in this Court. The appeal was heard on

9th April, 2018.

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During its hearing, learned counsel for the appellant, Baba

Shehu Ahmad, Esq., adopted the appellant’s brief of

argument, filed on 10th October, 2017 and deemed

properly filed on 11th October, 2017, as forming his

arguments for the appeal. He urged the Court to allow it.

Similarly, learned counsel for the respondent, M. M.

Gambo, Esq., adopted the respondent’s brief of argument,

filed on 8th November, 2017 and deemed properly filed on

9th April, 2018, as forming his reactions against the appeal.

He urged the Court to dismiss it.

The appellant, in his brief of argument, distilled a single

issue for determination to wit:

Whether or not, the prosecution proved its case

beyond reasonable doubt to warrant the conviction of

the appellant by the trial Court.

Admirably, the respondent adopted the singular issue

crafted by the appellant.

Arguments on the issue.

Learned counsel for the appellant highlighted the evidence

of the respondent’s witnesses: PW1-PW4. He submitted

that the evidence of PW1-PW5 were hearsay which could

not be used in judicial proceedings.

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He relied on Osho v. State (2012) 8 NWLR (Pt. 1302)

243; Ojo v. Gharoro (2006) 10 NWLR (Pt. 987) 173;

Ojiako v. State (1992) 2 NWLR (Pt. 175); Utteh v.

State (1992) 2 NWLR (Pt. 223) 257; Buhari v.

Obasanjo (2005) 13 NWLR (Pt. 941) 1; Dare v. State

(2009) 6 NWLR (Pt. 1136) 165. He observed that a

Court had a duty to reject inadmissible evidence despite

lack of objection to it. He cited Nwocha v. State (2012) 9

NWLR (Pt. 1306) 571; Ojo v. Gharoro (supra); Buhari

v. INEC (2008) 19 NWLR (Pt. 1120) 246.

He posited that the respondent did not produce the forged

document and the original as required by law. He referred

to APC v. PDP (2015) 3-4M JSC 54. He stated the

meaning of forge. He asserted that the person whose

signature was forged was a vital witness and failure to call

him would be fatal to the respondent’s case. He relied on

Alake v. State (1993) 9 NWLR (Pt. 265) 260; Obasi v.

Onwuka (1987) NWLR (Pt. 61) 364; Ottih v.

Nwanekwe (1990) 3 NWLR (Pt. 140) 550; Aliyu v.

State (2013) 67 MJSC (Pt. 11) 64. He noted that offence

of forgery must be proved beyond reasonable doubt and

without speculation. He referred to Aina v. Jinadu (1992)

4 NWLR (Pt. 233) 91;

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Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189). He

added that the onus of proof of forgery lay on the party that

asserted and it must be pleaded and proved strictly. He

cited Edigin v. Ovbiagbonhia (1993) 5 NWLR (Pt. 293)

267; Onuaguluchi v. Ndu (2000) 11 NWLR (Pt. 679)

519.

Learned counsel contended that the Exhibits C1-C3, the

confessional statements, lacked certainty as they were

unsigned and undated and so invalid. He cited Ayaoha v.

Obioha (2014) 6 NWLR (Pt. 1404) 445; Omega Bank

(Nig.) Plc. v. OBC Ltd. (2015) (sic); Ogbahon v.

Trustees of CCC (2002) 1 NWLR (Pt. 749) 675. He

claimed that they were made by inducement and threat and

so inadmissible. He cited Nwocha v. State (supra). He

reasoned that there were material contradictions in

Exhibits C1-C3 which created doubt to be resolved in the

appellant’s favour. He referred to State v. Azeez (2008)

14 NWLR (Pt. 1108) 439; Sani v. State (2015) 6-7

MJSC 105; Chukwu v. State (1996) 7 NWLR (Pt. 463).

He insisted that they were inadmissible even though no

objection was raised to their admissibility in the lower

Court. He relied onOmega Bank (Nig.) Plc. v. OBC Ltd.

(supra); Etim v. Ekpe (1983) 1 SCNLR

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120; Almu v. State (2009) 4 MJSC 147. He stated, in the

alternative, that they did not relieve the respondent on its

duty of proof. He referred to Afolabi v. State (2016) 4-5

MJSC 1; Abasi v. State (1992) NWLR (Pt. 260) 383.

It was further submitted that Exhibit A, the petition, was

not tendered by the maker, who was to be cross-examined

on it, and that breached the appellant’s right to fair hearing

as provided in Section 36(6) (d) of the Constitution, as

amended. He relied on NIMASA v. Hensmor (Nig.) Ltd.

(2015) 5 NWLR (Pt. 1452) 278. He reasoned that the

failure of the victims of the offences to testify and be cross-

examined denied appellant his right to fair hearing. He said

that original document was not used for the forensic test so

that it was doubtful if it was correct and accurate when the

respondent was required to prove the case beyond

reasonable doubt. He cited Yanro v. State (2016) 2-3

MJSC 106; Nwosu v. State (1998) 8 NWLR (Pt. 562)

433; Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686;

Akalezi v. State (1993) 2 NWLR (Pt. 273) 1. He

reasoned that the lower Court based its decision on

speculation when it should not fill gaps in evidence.

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He relied on Olalomi v. NIDB (2009) 7 MJSC (Pt. 111)

136; Ibori v. FRN (2009) 3 NWLR (Pt. 1127) 94.

Learned counsel argued that the appellant was not given

fair hearing as enshrined in Section 36(6) (d) of the

Constitution, as amended, and the decision should be set

aside for being a nullity. He cited Okoye v. COP (2015)

4-5 MJSC 34; Ezeji v. Ike (1997) 2 NWLR (Pt. 486)

206; Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1; Diko

v. Ibadan South West L.G. (1997) 2 NWLR (Pt. 486)

235; Idakwo v. Ejiga (2002) 12 MJSC 81; Ikomi v. The

State (1986) 1 NSCC 730; Kakih v. PDP (2014) 7-9

MJC 1; Adigun v. A. –G., Oyo State (1987) 1 NWLR (Pt.

53) 678; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 53)

687/(1987) 5 SCNJ 54; Muhammed v. State (2013) 1

MJSC (Pt. 11) 168. He explained that the appellant’s right

to fair hearing was breached because he was not allowed to

cross-examine makers of Exhibit A. He took the view that

the lower Court rushed the case and did not take proper

step. He cited People of Lagos State v. Umaru (2014) 3

MJSC 136 for the meaning of rush. He postulated that the

lower Court had no jurisdiction to try the case because of

the denial of fair hearing.

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He enumerated situations when a trial would be a nullity.

He referred to Adeoye v. State (1999) 6 NWLR (Pt. 607)

74; Paulson v. State (2012) 6 NWLR (Pt. 1279) 456;

Okoro v. IGP (1953) 14 WACA 370; Kajubo v. State

(1988) 1 NWLR (Pt. 73) 721; R. v. Shodipo (1984) 12

WACA 374; Oruche v. C.O.P. (1963) 2 SCNLR 132.

On behalf of the respondent, learned counsel submitted

that the evidence of PW1-PW4 were not hearsay. He

explained that Exhibits C1-C3 were written by the appellant

and it was the caution that was written by a person in

authority. He posited that the confessional statements,

Exhibits C1-C3, were unequivocal so that conviction could

be based on them and the respondent needed not to prove

the offences beyond reasonable doubt. He relied on Solola

v. State (2005) All FWLR (Pt. 269) 1751. He noted that

the appellant, who was represented by counsel, did not

object to their admission and should not complain now. He

cited Oseni v. State (2012) 2 SCNJ (Pt. 1) 215. He

persisted that they were positive, direct and unequivocal

and amounted to admission of guilt and the lower Court

was right to convict him on them. He cited Shurumo v.

State (2010) All FWLR (Pt. 551) 1406.

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Learned counsel contended that the required documents

were produced to satisfy proof of forgery. He explained that

the prosecution must not call all witness when credible

single could prove a case. He cited Akindipe v. State

(2012) 6 SCNJ (Pt. 1) 278. He posited that there are no

material contradictions in Exhibits C1-C3. He referred to

Osung v. State (2012) 6 SCNJ (Pt. 2) 511. He explained

that Exhibit C1 was signed by the appellant on 11th

October, 2011 but witnessed by EFCC official on 14th

December, 2011. He reasoned that failure to witness

Exhibits C2 and C3 was immaterial as the appellant was

duly cautioned before making them. He maintained that

they were admissible. He observed that the proper time to

object to them was when they were being tendered. He

referred to Oseni v. State (supra); Osung v. State

(supra). He took the view that PW2, who knew the makers

of Exhibit A as co-staff, was a competent witness to tender

Exhibit A as its makers did so as staff of the petitioner

bank. He persisted that the appellant was not denied right

of fair hearing. He noted that the appellant did not object

to its admission and same was

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properly tendered under Section 83(a) (ii) of the Evidence

Act. He postulated that even though the makers of Exhibit

A were named as witnesses, the respondent was not bound

to call them. He relied on Haruna v. A.-G., Fed (2012) 3

SCNJ (Pt. II) 431.

Learned counsel argued that the evidence of PW2 was not

hearsay as he testified in his official capacity. He drew the

Courts’ attention to the fact that the appeal of the

appellant’s co-convict, Appeal No. CA/K/493/2014, was

dismissed on 24th July, 2015 by this Court. He urged the

Court to be guided by that decision.

Resolution of the issue.

A clinical examination of the solitary issue, amply reveals

that it is dotted with sea of side or adjunct issues itching

for distinct determination. It is imperative to place on

record, that bags of documentary evidence formed the

corpus of the case. Interestingly, the law, in order to repel

injustice, donates concurrent jurisdiction to this Court and

the lower Court on evaluation of documentary evidence,

see Ezeuko v State (2016) 6 NWLR (Pt. 1509) 529;

FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299. I will

reap from this coextensive jurisdiction in the appraisal of

the galaxy of documentary evidence in this appeal.

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One of the appellant’s chief and foremost grievances is

against the validity of the evidence of PW1-PW3. The kernel

of his complaint is plain. He chastised them as inadmissible

hearsay evidence. In our adjectival law, a witness is

expected to testify on oath, or affirmation, on what he

knows personally. Where a witness gives evidence on what

another person told him about events, then it is not direct

evidence which has acquired the nickname: hearsay or

second hand evidence. In the view of the law, hearsay

evidence can only be used to inform a Court about what a

witness heard another say and not establish the truth of an

event, see Section 37, 38 and 126 of the Evidence Act,

2011; (former Section 77 of the Evidence Act, 2004); Kasa

v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman

(2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State

(1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012)

13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14

NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR

(Pt. 1430) 374; Opara v A. –G. Fed. (2017) 9 NWLR

(Pt. 1569) 61.

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To begin with, I have given an indepth study to

the evidence of PW1 wrapped between pages 214-216 of

the record. PW1 was Aminu Zakari Mohammed. At the

cradle of his parol evidence, he described his designation

as “the chief Medical Director of Aminu Kano teaching

Hospital” of Bayero University, Kano. The meat of his

evidence is simple: that when the EFCC presented the

forged documents, they identified therefrom that the

signatures of the signatories to the deposit accounts of

Aminu Kano Teaching Hospital with Access Bank Plc. were

not theirs. Put differently, they disowned the signatures in

the forged documents. To my mind, the viva voca testimony

of PW1, as pluck out above, is a classic exemplification of

direct oral evidence of what he saw and observed. It

therefore, falls within the perimeter of the admissible

evidence as decreed by the prescription of Section 126 (a)

of the Evidence Act, 2011. It has not, in the least,

fracture/defiled the law of evidence as to the bear/wear the

stigma of hearsay being smeared on it by the appellant.

That takes me to the status of the evidence of PW2 and

PW3. Their oral testimonies are encased between pages

217-222 of the record.

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PW2, Steven Uniwerhiaye, and PW3, Moses Shichet, both

testified as staff of Access Bank Plc. Aminu Kano Teaching

Hospital branch, Kano, the substantive complainant. Are

their evidence hearsay evidence? The answer to the vexed

poser is deeply founded in the realm of case-law. In Ishola

v. Societe Generale Bank Ltd. (1997) 2 NWLR (Pt.

488) 405, the apex Court held.

….it cannot be over emphasized that a company being

a legal person or a juristic person can only act

through its agents or servants and any agent or

servant of a company can therefore give evidence to

establish any transaction entered into by that

company. Where the official giving the evidence is not

the one, who actually took part in the transaction

on behalf of the company, such evidence is

nonetheless relevant and admissible and will not be

discountenanced or rejected as hearsay evidence. The

fact that such official did not personally participate in

the transaction on which he has given evidence may

in appropriate cases, however, affect the weight to be

attached to such evidence, Kate Enterprises Ltd. v.

Daewoo (Nig.) Ltd. [1985] 2 NWLR (Pt. 5) 116;

Anyaebosi v. R. T. Brisco (Nig.) Ltd. [1987] 3 NWLR

(Pt. 59) 84; Chief Igbodim and Ors. V. Chief Ugbede

Obianke (1976) 9-10 SC 178, 187 etc.

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See also Kate Enterprise Ltd v. Daewoo (Nig.) Ltd.

(1985) 2 NWLR (Pt. 5) 116; Saleh v. Bank of the

North (2006) 6 NWLR (Pt. 976) 13 NWLR (Pt. 1581)

52, Interdrill (Nig.) Ltd. v UBA Plc (2017) 13 NWLR

(pt. 1581) 52.

The magisterial pronouncements in these ex cathedra

authorizes, with due respect, expose the poverty of the

alluring submission of the appellant’s counsel on the

stubborn point. It is decipherable from them, that, in the

eyes of the law, their evidence cannot be categorized as

hearsay. The victim of the crime, Access Bank Plc., is

presumed to be a duly incorporated company under the

Nigeria Companies and Allied Matters Act. By the

registration, it is a persona ficta, a juristic personality

which can only act through an alter ego such as its agents

or servants, directors, managers, see Kate Enterprise Ltd

v. Daewoo (Nig.) Ltd. (supra); Interdrill (Nig.) Ltd. v.

UBA Plc. (supra). To label the evidence of PW2 and PW3

as hearsay, as pontificated by the appellant, will be

antithetical to the corporate personality of the respondent,

a legal

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abstraction, devoid of blood, flesh, brain and other human

features. Flowing from the foregoing, I dishonour the

appellant’s enticing invitation to crucify evidence of PW2

and PW3 on the undeserved altar/shrine of evidential

hearsay for want of legal justification.

Another grouse, weaved by the appellant, against the lower

Court’s decision is that it was based outside the evidence of

vital witnesses. It is trite, that the law compels the

prosecution to call a vital witness: a witness whose

evidence will prove a vital point or ingredient of an offence

either way. If the prosecution defaults in calling such a

vital/material witness, the failure will be fatal to its case

which must be proved beyond reasonable doubt. See Sale

v. State (2016) 3 NWLR (Pt. 1499) 392; Itu v. State

(2016) 5 NWLR (Pt. 1506) 443; Pius v. State (2016)

NWLR (Pt. 1517); Smart v. State (2016) 9 NWLR (Pt.

1518) 447; Abokokuyanro v. State (2016) 9 NWLR (Pt.

1518) 520; Ayeni v. State (2016) 12 NWLR (Pt. 1525)

51; Nweke v. State (2017) 15 NWLR (Pt. 1587) 120;

Osuagwu v. State (supra).

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At due fidelity to the expectation of the law, I have

consulted the record, the bedrock of the appeal, especially

at the residence of the evidence of respondent’s witnesses

which colonize pages 214-228 of it. I have perused them,

inclusive/alongside the documentary evidence, with the

finery of a tooth comb. Interestingly, they are obedient to

comprehension. The respondent’s witnesses, PW1-PW5, in

my view, professed credible and unchallenged evidence on

the culpability of the appellant vis-a-vis the offences leveled

against him. The reason is not far-fetched. Their evidence

disclose that the appellant was participes criminis in the

offences. The law gives the Court the unbridled license to

act on unchallenged evidence, see Ayeni v. State (supra).

It is the prosecution, the respondent herein, that

determines the vitality of evidence, see Nweke v. State

(supra). For want of legal justification, I am unable to

brand those persons/signatories whose signatures were

forged and uttered, listed as prospective witnesses but not

called, as vital witnesses whose evidence were/are inimical

to the respondent’s case. My view point is solidified by the

hallowed principle of law, that the prosecution, the

respondent herein, is not

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required to field a host of witnesses to prove ingredients of

an offence, Eze v. FRN (2017) 4 NWLR (Pt. 1589) 433;

Amadi v. A. –G., Imo State (2017) 11 NWLR (Pt. 1575)

92; Ali v. State (2015) 10 NWLR (Pt. 1466) 1. In other

words, in the province of criminal jurisprudence, evidence

of one reliable witness, not a legion, is enough to prove

commission of a crime. To this end, the respondent’s

neglect to call all the owners of the forged signatures did

not constitute a coup de grace in its case. On this score, the

appellant’s dazzling argument on this point is lame. It

cannot fly.

The above juridical survey, done in due consultation with

the law, demolishes the appellant’s agitation that his

inviolable right to fair hearing, as ingrained in Section

36(6) (d) of the Constitution, as amended, was eroded. It

further demonstrates that Exhibit A, which was not

tendered by its authors, was tendered by a competent

witness, PW2, under the shelter of juristic personality of

the Access Bank Plc: the substantive complainant. On this

premise, the admission of Exhibit A is not hostile to the law.

In effect, I decline the

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inviting solicitation to ostracise it from the appeal.

Contrariwise, I endorse in toto, the lower Court’s reliance

on it and welcome it for usage in the appeal.

It remains to attend to the appellant’s castigations against

Exhibits C1-C3. In the first place, it is settled adjectival law

that the time to object to a confessional statement is at the

point of tendering it otherwise the party will forfeit his

right of objection to it on an appeal. See Alarape v. State

(2001) 5 NWLR (Pt. 705) 79/(2001) FWLR (Pt. 41)

1872; Oseni v. State (2012) 5 NWLR (Pt. 1293) 351;

Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Dibia v.

State (2017) 12 NWLR (Pt. 1579) 196; Muhammad v.

State (2017) 13 NWLR (Pt. 1583) 386; John v. State

(2017) 16 NWLR (Pt. 1591) 304. The record, the spinal

cord of the appeal, clearly, showcases that the appellant,

who was represented by counsel, did not greet the

admission of those Exhibits C1-C3 when they were

tendered by the respondent through PW4. The appellant’s

failure, in his infinite wisdom, to register his opposition to

the admissibility of those documents drains/divests him of

the right to object to their admission on appeal.

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In a word, this Court is not the forum competens to raise an

objection to their admissibility having sacrificed his right

during the trial at the lower Court.

At any rate, I have give a microscopic examination to them.

The appellant, a graduate/holder of Bachelor of Technology

in Industrial Physics, duly signed and dated those exhibits.

The presence of his signature and dates on them punctures

the appellant’s quarrels on their validity. It will smack of

judicial sacrilege to invalidate and expel them when they do

not offend the law.

Above all, those Exhibits C1-C3 were extra-judicial

statements made by the appellant to the investigative

body, the EFCC. Curiously, he confessed to the commission

of the offences in the exhibits. The provision of Section 28

of the Evidence Act, 2011 states:

A confession is an admission made at anytime by a

person charged with a crime stating or suggesting he

inference that the committed that crime.

Once a confession is relevant, it is admissible against an

accused who made it save it is excluded in the manner

ordained by the provision of the Section 29(2) of the

Evidence Act, 2011.

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Unarguably, it is within the perimeter of the law for a Court

to base conviction on free, cogent and positive confession,

see Sule v. State (2009) 17 NWLR (Pt. 1169) 33;

Omoju v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla

v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v.

State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v.

State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State

(2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016)

14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16

NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR

(Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569)

118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588)

177; Muhammad v. State (supra); John v. State (2017)

16 NWLR (Pt. 1591) 304; Agagua v. State (2017) 10

NWLR (Pt. 1573) 254.

When those pre-trial statements were admitted as Exhibits

C1-C3, even though the appellant was their owner, they

deserted the defence and metamorphosed into the

respondent’s case, see Egboghonome v. State (1993) 7

NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR

(Pt. 1359) 214. It flows, that their contents became part

and parcel of the respondent’s case. As already noted,

when those extra-judicial statements were

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tendered for admission in evidence, the appellant did not

raise any protest to their admissibility. The implication is

plain. They were voluntarily made. In those exhibits, the

appellant made an undiluted admission of commission of

the alleged offences.

Indeed, the kingly position of confession in criminal

jurisprudence cannot be overemphasized. Under our

procedural law, confession has been classified as the best

and strongest evidence, stronger than that of an eye

witness, see Smart v. State (2016) 9 NWLR (Pt. 1518)

447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309;

Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v.

Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v.

State (2008) 14 NWLR (Pt. 1106) 72. By a confession,

an accused surrenders himself to the law and becomes his

own accuser, see Adeleke v. State (2013) 16 NWLR (Pt.

1381) 556. The appellant’s confessional statements,

Exhibits C1-C3, drown his right to presumption of

innocence, which is enshrined in Section 36(5) of the 1999

Constitution, as amended, as well as make him the

undoubted owner of the requisite mens rea and actus reus

in relation to offences preferred against him.

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It stems from the expansive legal anatomy, conducted with

the aid of the law, that the respondent proved the

necessary ingredients of the offence preferred against the

appellant beyond reasonable doubt as mandated by the

provision of Section 135 (1) of the Evidence Act, 2011.

After all, proof beyond reasonable doubt does not evince

proof beyond all iota/shadow of doubt. See Banjo v. State

(2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014)

13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12

NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR

(Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt.

1570) 230. In the legal parlance, it is attained when the

evidence is so strong against a man as to leave only a

remote possibility in his favour which can be dismissed

with a sentence “of course it is possible but not in the least

probable”. See Maigari v. State (2013) 17 NWLR (Pt.

1384) 425. It implies that the solemn finding of the lower

Court, which inculpates the appellant, as the perpetrator of

the offences charged is unassailable. Due to its

unimpeachable status, this Court is robbed of the

jurisdiction to tinker with it.

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See Olatunbosun v. State (2013) 17 NWLR (Pt. 1382)

167. I am least prepared to infuriate the law for fear of its

wrath. In effect, all the strictures, which the appellant

rained/poured against the lower Court’s evaluation of the

evidence, fly in the face of the law. In the end, I have no

option than to resolve the sole issue against the appellant

and in favour of the respondent.

On the whole, having resolved the mono issue against the

appellant, the destiny of the appeal is obvious. It is devoid

of any morsel of merit and deserves the penalty of

dismissal. Consequently, I dismiss the appeal. I affirm the

decision of the lower Court delivered on 5th June, 2014.

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.: I had the

privilege of reading in draft form, the judgment just

delivered by my learned brother, Obande Festus Ogbuinya,

JCA. I agree with his meticulous dealing of the issues

canvassed by the parties especially that on hearsay and

confessional statement of the Appellant.

In criminal cases, the confession of an accused person to

the commission of a crime plays a major part in the

determination of his guilt and a Court of law is

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entitled to convict on the confession if it comes to the

conclusion that the confession is voluntary. This is because

the confession itself puts an end to the rough and

speculative edges of criminal responsibility in terms.

OKEKE V STATE (2003) 15 NWLR (PT. 842) PG. 25.

In the present appeal, the Appellant made his confessional

statement which was tendered without any objection.

Objecting at a later stage of the trial precludes the

Appellant from denying his confessional statement.

With this and the more comprehensive reasoning in the

lead judgment, I also hold that this appeal is unmeritorious.

It is dismissed. I affirm the judgment of the lower Court

sentencing him to various terms of imprisonment.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had

the privilege of reading in draft the Lead Judgment of His

Lordship Festus Obande Ogbuinya, JCA in this appeal, and

agree that the appeal be dismissed.

The evidence of Pw2 and Pw3 are certainly not hearsay and

admissible evidence as they were both the human agencies

through which the corporate persons of Access Bank Plc

and the Aminu Kano Teaching Hospital Kano acted.

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How could the juristic personam which are legal figments

clothed with legal personality sue and be sued. How can

they ventilate their claims or defend them in the case of

suits or in any dealing? It has to be through the

instrumentality of the human with flesh, blood, hands, legs

and eyes and brains.

That is why the alter ego of a corporate entity can be

discerned; and that is why documents and acts are, by the

laws relating to incorporation, stipulated to be performed

by some named categories of officers/officials who are

humans homo sapiens; e.g of counsel.

The doctrine of corporate personality developed in

Salomon Vs Salomon 1897 Ac 22 @ 66 and the lifting of

the veil principle in corporate law is a case in point. See

also LEE V. LEES AIR FARMING LTD (1963) AC 12.

The Nigerian case Law Authority of Ishola Vs Societe

Generale Bank Ltd (Ltd) (1997) 2 NWLR (Pt. 488) 405

and a host of other cases including PWOL V. UNION

BANK PLC 1999 1 NWLR (Pt. 588) 636 exemplify this

stand of common sense.

It is this same principle that governs the rationale for the

signing or franking of Legal processes only by legal

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practitioners as against the law firms as entities and media

by which law may be practiced by these same specie of

humans.

On the whole, the evidence of a sole witness if credible,

may even constitute the basis for a finding of guilt, and that

was clearly proved to be so in this case on appeal, which

has all the prerequisites of admissible oral and

documentary evidence established in favour of a conviction

and sentence that cannot, in law, be adjudged faulty. The

confessional statements exist. I endorse the decision and

affirm same as I also dismiss this appeal.

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Appearances:

Baba Shehu Ahmad, Esq. For Appellant(s)

Idris I. Haruna, Esq., PLO, EFCC with him,Douglas I . G i f t , Esq . , SLO, EFCC ForRespondent(s)

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