INTRODUCTION
The Provisions of the DISHONOURED CHEQUES (OFFENCES) ACT 2004 make it a criminal offence for any person or corporate anywhere in Nigeria to induce the delivery of any property or to purport to settle a lawful obligation by means of a dud cheque which when presented within a reasonable time is dishonoured whether on the grounds that no funds or insufficient funds were standing to the credit of the drawer of the cheque. The Act doesn’t just intends to prevent issuing of cheque for fun but also make it an offence when issued for the sake of discharging legal obligations or inducing delivery of a property.
The present work will briefly assess and analyse the criminal Liability of issuing a dishonoured or dud cheque using The Dishonoured Cheque (Offences) Act 2004(to be referred as the Act after now) and some decided Judicial authorities.
ISSUANCE OF A CHEQUE
Legally Speaking, cheques are certainly not issued in vacuum, the issuance itself has many legal implications, the first implication is that the issuer has assigned the bank to discharge his legal obligation whether contractual or otherwise failure of which without any loopholes from the issuer, the issuee has a Legal action against the bank for breach of contract for which the Bank may be liable in damages for negligence or wrongful dishonour of Cheque.
Hence the second implication is that it creates legal relationship between the bank and the person issued with a cheque. But it is pertinent to point out a caveat at once that for a Bank to be liable for the dishonouring of a Cheque, the Customer must of neccessity have funds sufficient enough to cover the value of the Cheque he issued to be drawn on his account with the Bank. Therefore, the Bank will not be liable for the dishonouring of a Customer’s Cheque where the Customer does not have enough funds to cover the amount as endorsed on the Cheque issued by him.
The third implication is that the issuer/drawner is not discharged from his obligation until the cheque is issued and paid by the bank which acts as his agent.
The fourth legal implication which is the subject of our discussion in this work is when the issuer issued a cheque intentionally and with the believe that the cheque couldn’t be paid if presented to the bank for one reason or the other for the sake of discharging his certain legal obligation, the said issuer will be whether a person or coperative body be liable for an offence under the Act. For the above positions see the cases of STANDARD TRUST BANK LIMITED v. ANUMNU (2008) 14 NWLR (pt. 1106) 100; DIKE v. AFRICAN CONTINENTAL LTD. (2000) 5 NWLR (pt. 657) 441; CITIBANK (NIG) LTD VS. IKEDIASHI (2014) LPELR 22447 (CA), KWACHAM CONSTRUCTION CO. LTD & ANOR v. ABADA (NIG) LTD & ANOR (2018) LPELR-44000(CA) and ZENITH BANK v. IGBOKWE (2018) LPELR-44777(CA).
Note that the work doesn’t attempts to enumerate all the legal implications revolving the issuance of a bank cheque.
In this vein, the Apex Court, through Oguntade, JSC, had this to say in ABEKE v STATE (2007) LPELR-31(SC) thus;
“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.”
Also Tobi, JSC(of blessed memory) while contributing to the above decision of the Supreme Court described a cheque thus:
“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.”
DISHONOURED OR DUD CHEQUE
The section 1 subsection (1), (a)&(b) of the Act provides that
Any person who obtains or induces the delivery of anything capable of being stolen either to himself or to any other person. Or 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.
Also subsection (3) of the said section 1 states;
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 that 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.
From the definition of the offence the following can be deduced as the required elements of the offence;
(1) the person obtained credit for himself or any other person;
(2) the cheque was presented for payment within three months from the date of issue of the cheque; and
(3) Upon presentation of the cheque it was 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.
(4)the drawer has issued that cheque while he had reasonable grounds for believing, and did believe in fact, that it would not be honoured if presented for payment within the period specified in the Act.
And also the offence falls in the class of the offences that both Mens rea (a guilty mind) and actus reus (guilty act) need to be established to secure conviction . See ABRAHAM v. FRN (2018) LPELR-44136(CA).As it could be seen that there is avenue for the Defence of mistake on reasonable grounds which if succeeded exonerates the Defendant from any liability under the Act persuant to section 1 sub section (3) of the Act. However, it will not a defence that cheque was not specified as the manner in which the obligation would be settled at the time when the contract was entered into. See 2(b) of the Act.
Moreover, both individual and corporate could be liable for the offence. Whether individual or corporate who is suspect to be offensive under the act may be prosecuted by the Attorney-General of the Federation or of any state where the offence is purportedly committee or any authority exercises their powers and could be tried summarily by the High Court of the State where the offence was said to have committed but the procedure applicable in the case of summary trial of offences before such High court applies extently to the offences under the Act. See sections 2 and 3(1)&(2) of the Act.
A person who is found liable and convicted for the offence under the act will be sentenced to imprisonment for two years, without the option of a fine. See section 1 subsection (1), (b),(I) of the act and ABRAHAM v. FRN(Supra)
While a body corporate which is found liable and convicted for the offence under the act will be sentenced to fine of not less than N5,000. However where any offence under the Act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any staff, servant or agent of the body corporate (or any person purporting to act in any such capacity), he, as well as the body corporate, will be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual, as if he committed the act in his personal capacity. See section 1 subsection(1), (b),(ii) and section 2 of the Act.
What can be seen from the foregoing is that the learned drafters of the Act didn’t intend the scope of the liability to the event where one, whether as an individual or corporate body issue a cheque which is not for the sake of settling any legal obligation or to induce the delivery of any property. Hence we can say that under the Act one is not criminally liable if issued a dud cheque for gift or something similar to that which he is not legally bound to pay.
It’s worthy of noting that the act aligns itself with the provision of section 25 the Interpretation Act which provides thus;
“Offences under more than one law where an act constitutes an offence under two or more enactments or under an enactment and at common law, the alleged offender shall be liable to be prosecuted and on conviction punished under anyone of the enactments or, as the case may be, either under the enactment or at common law, but shall not be liable to be punished twice for the same offence’
To this effect even if the issuance of a dud cheque established the elements of another offence under another law the defendant cannot be tried under the act and the other law for one offence committed in one event. But can be tried and convicted under anyone of the laws.
CONCLUSION AND RECOMMENDATIONS
As could be construed from the forgoing submission and analysis, the prime intention of the lawmakers is to prevent making fun of cheques while discharging legal obligations, contractual or otherwise. The Act deserve accolades for providing a sufficient punishment and for closing any escape route for any staff of a corporate body who may act intentionally or negligently by putting personal liability. The nation-wide application of the Act is also commendable unlike other offences statutes that could only be enforced in Federal Jurisdiction and the state that adopted them.
However the Act is not free of any loopholes, the Act didn’t provide any compensation for the victim of such offensive act. It is the opinion of this writing that compensation ought to have been provided. That the trial court upon conviction can grant both general and special damages for breach of that Contract and any loss that is resulted from it to the nominal complainant so there will not be need to institute any subsequent civil suit for breach of contract. The act have also restricted trial of the offence in the High court of a state alone. The write up opines that, for the interest of Justice and for easy dispensation of Justice. Court of summary jurisdiction e.i Magistrate Courts, Area Courts and their equivalents should have allowed to try such offences. Since the highest and fixed purnishment is two years imprisonment. That will help in reducing flooding of cases in states’ High Courts.
It’s therefore hope that these recommendations will be duly considered when opportunity availed itself in the event of amendment
ABOUT THE WRITER:
ALKASIM ABUBAKAR Is an enthusiast law Student, Ahmadu Bello University, Zaria. He has many publications in his name.
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[email protected] 08033131653
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