ADAMU v. FRN
(2021)LCN/15057(CA)
In The Court Of Appeal
(KADUNA JUDICIAL DIVISION)
On Wednesday, February 10, 2021
CA/K/336/C/2019
Before Our Lordships:
Obietonbara O. Daniel-Kalio Justice of the Court of Appeal
Saidu Tanko Hussaini Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Between
ABUBAKAR ADAMU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
BURDEN OF PROOF AND STANDARD OF PROOF REQUIRED OF THE PROSECUTION IN RESPECT OF AN OFFENCE BROUGHT UNDER SECTION 1(1)(A) AND 1(3) OF THE ADVANCE FEE FRAUD AND OTHER FRAUD RELATED OFFENCES ACT, 2006
The law is that the person who asserts the affirmative has the onus on him to prove that which he asserts. This is true in both Criminal and Civil cases even though the standard of proof required in each cases is not the same. In a case such as this where the charge laid against the appellant in respect of the offence brought under Section 1(1)(a) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, it is the Prosecution who must lead evidence to establish his case. The prosecution must lead evidence to establish the essential ingredients that constitute that offence; the standard required of him (the prosecution) is proof beyond reasonable doubt; as ordained by law at Section 135(1)(2) of the Evidence Act. The burden of proof on the prosecution does not shift hence it is the evidence elicited through witnesses called by the Prosecution that must be looked at so as to ascertain whether by that evidence, all the essential elements necessary to constitute the offence under Section 1(1)(a) and 1(3) read together, had been proved. In other words, the Court below in the evaluation of evidence before it, must come to the conclusion and make a finding that from the case presented by them (prosecution) it has been established that: (1) There was pretence on the side of the appellant (accused person). (2) The pretence was false. (3) The accused knew the pretence to be false or did not believe it to be true. (4) The pretence operated on the mind of the person from whom the property (in this case, money) was obtained. (5) That there was an intention on the part of the accused to defraud his victim. (6) That the accused, by that pretence induced his victim or the owner of property to part or transfer his interest in the property (including) money. The prosecution is by law expected to establish those elements or essential ingredients of the offence if he must succeed in a case or charge brought under Section 1(1)(a) and 1(3) of the Advance Fee Fraud, read together. See decisions in: Ikpa vs. State (2017) LPELR-42500 (SC); Oluwasheun vs. FRN (2016) LPELR-40768 (CA); Aleke vs. State (1991) 7 NWLR (Pt. 205) 567, Odiawa vs. FRN (2008) ALL FWLR (Pt. 439) 436. PER SAIDU TANKO HUSSAINI, J.C.A.
WHETHER COURTS CAN ONLY RECEIVE AND ACT UPON DIRECT EVIDENCE OF WITNESSES WHO SAW OR HEARD OR PERCEIVED ANY PARTICULAR FACT
… Oral evidence which the Courts can receive and act upon must be direct evidence of the witness who saw or heard or perceived any particular fact. So far as the prosecution and indeed the Court below relied on that statement as true, it is not admissible evidence on account of same being hearsay. Section 38 of the Evidence Act refers. See: Jolayemi vs. Alaoye(2004) 12 NWLR (Pt. 887) 322 (SC); Subramanian vs. Public Prosecutor (1956) 1 WLR 965. PER SAIDU TANKO HUSSAINI, J.C.A.
SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned, tried, convicted and sentenced at the Federal High Court sitting in Kaduna on a single count for obtaining under false pretence, the sum of N400,000.00 from one Mukailu Abubakar with intent to defraud the said Mukailu Abubakar.
Upon the charge being read, the accused, now the appellant entered a plea of “not guilty” to the charge, hence the prosecution opened their case, called evidence of two (2) witnesses (PW1 and PW2) and closed their case. In the course of evidence, the prosecution tendered documents which the trial Court also admitted and marked same as Exhibits. The defence thereafter, at the close of prosecution’s case, put in a defence and called evidence of the DW1, Dw2 and DW3. The appellant as the accused person before the trial Court gave evidence as DW1. There are no Exhibits tendered or admitted in support of defence case.
The appellant was one of the Sureties who stood in for one Mukailu Abubakar, a suspect in a case before the Economic and Financial Crime Commission (EFCC). Mukailu Abubakar was released on administrative
1
bail but he failed to present himself for trial hence the EFCC apparatus ordered the arrest and detention of his Surety, Abubakar Adamu, the appellant herein. While in the custody of the EFCC, Abubakar Adamu received an alert of the sum of N400,000.00 paid into his account with G.T bank, i.e account No. 0021526340.
Through Fahd Abubakar on the instructions given to him by Mukailu Adamu, the suspect whose whereabout was still not known but who nonetheless was in contact with the appellant through phone calls. While the Applicant was still in the custody of the EFCC he was charged to Court for receiving the sum of N400,000.00 under false pretence with intent to defraud Mulaiku Abubakar an offence, contrary to Section 1(1)(a) and 1(2) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, read together.
The trial Federal High Court, at the close of evidence of witnesses and counsel final addresses, in a considered judgment delivered on the 11th April, 2019 found the appellant guilty of the offence as charged and accordingly, convicted and sentenced him to a term of imprisonment of Seven (7) years without option of fine. The appellant has
2
appealed to this Court on account of this judgment and order via the Notice of appeal filed on the 17th May, 2019 containing just one (1) ground of appeal. By leave granted on 22nd June, 2020, the appellant had cause to amend his Notice of appeal in terms of the Amended Notice of Appeal filed on the 10th September, 2019. The Amended Notice of has (4) grounds of appeal. Transmission of the Record of appeal to this Court was couched on 3rd June, 2019 hence parties through their counsel filed and exchanged their briefs of argument through which the parties, respectively formulated or distilled issues for determination. The appellant, in the brief of argument filed on his behalf has raised four(4) issues for determination at paragraphs 3.1-3.4 pages 2-3 of his brief of argument, thus:
“3.1 Whether the trial Court was right to hold that the evidence of the Respondent’s witnesses was never controverted.
3.2 Whether circumstantial evidence of the case has not created reasonable doubt therefore warranting at least a discharge of the Appellant.
3.3 Whether the defence witnesses evidence is controverted by the appellant.
3
3.4 Whether the ingredients of the offence of obtainment by false pretence has been established.”
Arguments on the issues so distilled run through pages 3-7, of the said appellant’s brief.
Respondents on their part have distilled just one(1) issues at page 5 of their brief of argument thus:-
“Is the lower Court not right to hold that the Respondent has proved beyond reasonable doubt, a case of obtaining money by false pretence against the appellant to warrant him being convicted.”
Arguments advanced for the respondents in support of the lone issue can be found at pages 5-10 of the Respondent’s brief of argument. The appellant and the Respondent respectively adopted their brief of argument through counsel hence the appellant in his closing remarks made through counsel at the date of hearing on 9th November, 2020 urged us to allow this appeal. Respondent’s counsel on his part has urged us to dismiss this appeal.
To me, this appeal can be disposed of under just one (1) issue or head and that is, whether the prosecution had proved their case beyond reasonable doubt of the offence of obtaining money by false pretence
4
against the appellant and whether the trial Court below is/was right to convict him (appellant) of the charge.
The law is that the person who asserts the affirmative has the onus on him to prove that which he asserts. This is true in both Criminal and Civil cases even though the standard of proof required in each cases is not the same.
In a case such as this where the charge laid against the appellant in respect of the offence brought under Section 1(1)(a) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006, it is the Prosecution who must lead evidence to establish his case. The prosecution must lead evidence to establish the essential ingredients that constitute that offence; the standard required of him (the prosecution) is proof beyond reasonable doubt; as ordained by law at Section 135(1)(2) of the Evidence Act. The burden of proof on the prosecution does not shift hence it is the evidence elicited through witnesses called by the Prosecution that must be looked at so as to ascertain whether by that evidence, all the essential elements necessary to constitute the offence under Section 1(1)(a) and 1(3) read together, had
5
been proved. In other words, the Court below in the evaluation of evidence before it, must come to the conclusion and make a finding that from the case presented by them (prosecution) it has been established that:
(1) There was pretence on the side of the appellant (accused person).
(2) The pretence was false.
(3) The accused knew the pretence to be false or did not believe it to be true.
(4) The pretence operated on the mind of the person from whom the property (in this case, money) was obtained.
(5) That there was an intention on the part of the accused to defraud his victim.
(6) That the accused, by that pretence induced his victim or the owner of property to part or transfer his interest in the property (including) money.
The prosecution is by law expected to establish those elements or essential ingredients of the offence if he must succeed in a case or charge brought under Section 1(1)(a) and 1(3) of the Advance Fee Fraud, read together. See decisions in: Ikpa vs. State (2017) LPELR-42500 (SC); Oluwasheun vs. FRN (2016) LPELR-40768 (CA); Aleke vs. State (1991) 7 NWLR (Pt. 205) 567, Odiawa vs. FRN (2008) ALL FWLR (Pt.
6
439) 436.
By reason of Exhibits PW2 FAB, i.e the deposit slip, Exhibit PW1 R03, i.e the Extra Judicial statement ascribed to the appellant, the evidence of PW1 and PW2, all that together it is no longer in doubt that the sum of N400,000.00 was lodged into Account No. 0021526340 at Guaranty Trust Bank on the 23rd July, 2018 by Fahad Abubakar (PW2) on the instruction of his brother, Mukaila Abubakar. These pieces of evidence put together, establish the fact that the appellant received that sum of N400,000.00 when that payment was made into his account on 23rd July, 2018, but this fact of payment or receipt of same does not in itself constitute or crystalize into the offence for which the appellant was charged. The prosecution needed to do more. They need to lead other evidence, other legally admissible evidence to show that the appellant induced payment of the sum of N400,000.00 to himself by a statement or representation, which the appellant knew was false but made it all the same. The prosecution needed to discharge this onus on them, given the fact that as at the time the account of the appellant was credited with the sum of N400,000.00 on 23rd July,
7
2018, the appellant who was already or still in custody or detention with the Economic and Financial Crimes Commission (EFCC), made such representation which led Mukailu Abubakar to part with his money. This is where the evidence of PW1 and PW2 become important. We need to revert to those pieces of evidence since the burden of proof lie with the prosecution to prove the guilt of the accused person, in this case, the Appellant.
PW1, Roland Omu is one of the investigating Police Officers in the case involving the appellant. His evidence is at pages 44-49 of the record of appeal. The arrest of the appellant was sequel to the report or compliant lodged with the EFCC by Mukailu Abubakar to whom he paid the sum of N400,000.00 into appellants account through his brother, Fahad Abubakar, for him “to use it to settle EFCC operatives in the earlier case against Mukailu Abubakar”. Page 45 of the record of appeal.
Be it noted that the report or complaint lodged with the EFCC by Mukaila Abubakar, as presented by PW1, does not suggest to me, that the appellant on his own, made a representation which induced the complainant to part with money under the
8
pretext that the money will be used to settle the operatives of the EFCC.
To ground conviction under S. 1(1)(a) and 1(3) of the Advance Free Fraud Act, evidence must be in place establishing among others, a case that the accused pretentiously induced the complainant to part with his property or money. None of the documents tendered and admitted through PW1 i.e Exhibits PW1 R01 or PW1 R02 or PW R03 establish that fact. On the contrary, Exhibit PW1 R03, the statement ascribed to the appellant, is clear in its content. In it the appellant is on record as saying that the sum of N400,000.00 paid into his account by the complaint was meant for him (appellant) to hire sureties who will stand for him to secure his (appellant) bail at the time of his arrest by the EFCC. Exhibit PW1R03 was tendered through PW1 in support of prosecution’s case but as it turned out, that piece of evidence is in support of defence case. That indeed, I have taken note of.
There is also the evidence of PW2. This is at pages 53-57 of the record of appeal. Although this witness, acting under instruction lodged the sum of N400,000.00 into the account operated by the appellant
9
with the G.T Bank, it appears to me that he did not himself know what the payment was meant to serve, not until:
“The defendant told me that the N400,000.00k paid into G. T Bank account is part of the money to solve the case that is with EFCC.”
See page 55 of the record of appeal. That piece of evidence, to my mind, is in the realm of hearsay evidence over which the Courts are enjoined not to act upon, even if received by virtue of the provisions at Sections 126, 37 and 38 of the Evidence Act. Thus, Oral evidence which the Courts can receive and act upon must be direct evidence of the witness who saw or heard or perceived any particular fact. So far as the prosecution and indeed the Court below relied on that statement as true, it is not admissible evidence on account of same being hearsay. Section 38 of the Evidence Act refers. See: Jolayemi vs. Alaoye(2004) 12 NWLR (Pt. 887) 322 (SC); Subramanian vs. Public Prosecutor (1956) 1 WLR 965. P.W.2 is educated up to diploma level and cannot by that level of his exposure claim that the account into which he made payment was represented or misrepresented to him as the account of the Economic and
10
Financial Crime Commission (EFCC). Such a statement or evidence coming from him cannot be taken with all seriousness. All that I am saying is that the prosecution did not succeed in leading evidence to establish the fact that by his utterances or conduct, the appellant induced the complainant to part with his money with intent to defraud him and that being the position, the finding made to the contrary at the Court below, must be set aside, not being the true reflection of the facts presented before it. To that extent, the appeal before us has considerable merit and same is allowed. The Judgment delivered at the Federal High Court, Kaduna in case or Charge No. FHC/KD/56C/2018 on 11th April, 2019 is set aside and in its place is entered this Judgment. The appellant is discharged and acquitted.
OBIETONBARA O. DANIEL-KALIO, J.C.A.: I have read the judgment of my learned brother SAIDU TANKO HUSAINI, JCA. I agree.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, Saidu Tanko Husaini, JCA where the facts leading to this appeal have been set, together with the contentions of counsel.
11
I am in agreement with my learned brother’s reasoning and conclusions and agree with the merit of this appeal, consequently allowing it.
I also set aside the judgment of the lower Court and discharge and acquit the Appellant.
12
Appearances:
SUNUSI SANI-SHEHU, ESQ. For Appellant(s)
MUSA ISA, ESQ For Respondent(s)
