OTUKPA v. I.G.P
(2020)LCN/15331(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Wednesday, July 29, 2020
CA/C/366C/2017
Before Our Lordships:
Philomena Mbua Ekpe Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
JOSEPH OTUKPA APPELANT(S)
And
INSPECTOR GENERAL OF POLICE RESPONDENT(S)
RATIO
STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. Thus, any doubt in criminal cases as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused. See AHMED V. STATE (1999) 5 SC (Prt 11) 39 at 47. PER SHUAIBU, J.C.A.
WHETHER OR NOT ANY DEFENCE PUT FORWARD BY AN ACCUSED PERSON MUST BE INVESTIGATED
The law is settled that any defence put forward by an accused person no matter how weak, foolish or unfounded must be investigated, and adequately considered by the Court in order to ascertain its veracity or accuracy. This, the learned trial Court has not done. In ONAH V THE STATE (1985) 3 NWLR (Prt 12) 236 at 244 Obaseki JSC observed as follows:
“The High Court and all Courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on evidence and not on hunches rumour or suspicion so as to ensure that justice in its purest form is administered in the Courts to all and sundry.” PER SHUAIBU, J.C.A.
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): The appellant was convicted and sentenced to three (3) years and six 6 months imprisonment at the Federal High Court, Calabar Judicial Division. The case for the prosecution was that the appellant collected the sum of N2, 200, 000.00 (Two Million, Two Hundred Thousand Naira) under false pretence to supply Mrs. Nancy Ndifon a Toyota RAV 4 Jeep.
Upon failing to deliver the jeep within the stipulated time, the matter was reported to the police and based on investigation, the appellant was charged to Court on one count charge of obtaining property by false pretence under Section 1(1),(2),(3) of the Advance Fee Fraud and Other Related Offences Act C A6 Laws of the Federation of Nigeria, 2006.
In proof of its case, the prosecution called two witnesses and tendered Exhibits PW1 – A, PW2 – A, B, C, C1 and C2. The accused person testified and called one other witness in his defence. He also tendered Exhibit, DW1 A, B, C, D F and E.
At the close of the case, both learned counsel addressed the Court and in a reserved but considered judgment delivered on the 25th day of May, 2017, the learned trial judge found the appellant guilty and convicted him at pages 116 – 117 of the record of appeal as follows: –
“It is my opinion from the totality of the evidence in this case and specifically by Exhibits PW1 – A and PW2 – A that the Defendant induced PW1 to transfer her interest in the sum of N2,200, 000.00 (Two Million Two Hundred Thousand Naira). I hold that the requisite ingredients in this charge has been proved by the prosecution beyond reasonable doubt.
On this basis, I find the Defendant guilty and I make an order convicting him as charged.”
Miffed with the above, appellant appealed to this Court through a notice of appeal filed on 31/5/2017. The said notice of appeal contains four (4) grounds of appeal at pages 119 – 122 of the record of appeal.
On the 22nd of June, 2020 when this appeal was argued, learned counsel for the appellant, Enome J. Amatey Esq. identified and adopted appellant’s brief of argument filed on 11/12/2017 but deemed as properly filed on 3/10/2019 in which a lone issue for determination of the appeal was nominated as follows: –
“Whether the learned trial judge was right when he failed to properly evaluate the evidence before him, acted on assumptions and speculations reached perverse and contradictory conclusions in dismissing the Appellant’s defences, entering judgment against him and convicting him?”
A.A. Ewah, Esq also nominated a lone issue for the determination of this appeal thus:
“Whether upon a circumspective consideration of the testimonies of all the witnesses in this case and documentary exhibits before the Court considered against the law the Appellant’s charge was premised, the Honourable trial judge was right in finding the Appellant guilty of the offence of obtaining property under false pretences and sentencing the Appellant accordingly?”
Learned counsel for the respondent also adopted and relied on the respondent’s brief of argument filed on 29/3/2018 but deemed as properly filed on 3/10/2019 in urging this Court to dismiss the appeal.
Proffering arguments on the lone issue, learned counsel for the appellant submits that there cannot be a proper finding of fact by a trial judge when he has not properly evaluated the evidence before him. He referred to HENSHAN V. EFFANGA (2009) 11 NWLR (Prt 1151) 65 at 87. He contends that inspite of the avalanche of evidence that the appellant did not falsely represent or intend to defraud, the trial Court turned a blind eye and relied on extraneous factors to convict the appellant. Still in argument, he submits that the primary function of the trial Court is to evaluate the evidence before it and then come to a conclusion one way or the other in any adjudication. And that where it fails to properly evaluate the evidence before it as in this case, the appellate Court has a duty to evaluate such evidence and ascribe probative value to it. He referred to NDOMA EGBA V. A. C. B. PLC (2005) 14 NWLR (Prt 744)79 at 107, UAC (NIG) PLC V. AKINYELE (2012) 15 NWLR (Prt 1322) 1 at 15 – 16 and ABI V. CBN (2012) 3 NWLR (Prt 1286) 1 at 27 to the effect that the judgment of the trial Court does not reflect a proper analysis of the evidence adduced and hence occasioned a miscarriage of justice.
In a further argument, learned counsel submits that none of the witnesses before the trial Court denied the fact that the appellant uses Wilmond Motors as his sale outlet and that the fact that the owner of Wilmond Motors did not know of the transaction in question is not enough to infer false pretence. Thus, the trial judge wrongly applied the decision of ONWUDIWE V F.R.N. (2006) 10 NWLR (Prt 988) 382 at 431 in convicting the appellant.
It is finally contended that the appellant had raised a vital issue in his defence to wit, that he bought the car and it was seized by the Nigerian Customs. Thus, the failure of the police to carry out any form of investigation into this important aspect of his defence as well as the treatment of this vital defence with levity by the trial Court rendered the findings of the trial Court perverse. He submits that any defence put forward by an accused person no matter how weak, foolish or unfounded must be investigated thoroughly and adequately considered in order to ascertain if it is false or unlikely. He referred to AIGBADION V. STATE (2000) 7 NWLR (Prt 666) 686 at 700.
On the part of the respondent, learned counsel submitted that when the appellant intentionally created a belief as to the existing facts which were false with intention to defraud, and in fact did so, he is culpable. He referred to Section 548 of the Company and Allied Matters Act to contend that it is Criminal for the appellant to have incorporated a company without complying with the law.
He also referred to the case of ONWUDIWE V. F.R.N. (Supra) in contending that the prosecution has proved all the essential elements of the offence charged through the witnesses and the documentary exhibits tendered.
Learned counsel submitted further that even though Exhibit PW2A can be termed as undertaking, but in its true character, it is a confession and a Court of law can validly convict on it alone. He referred to SOFOLA V. STATE (2005) ALL FWLR (Prt 269) 175 at 1782.
It was contended that when an accused person alleges on appeal that certain defences are available to him, it is his duty to prove the same by establishing the existence of such defences. Thus, the Court cannot give an accused person the benefit of a defence which was not supported by the evidence on record. He referred to ULUDEKA V. STATE (2011) 4 NWLR (Prt 1237) 358 at 361.
A careful perusal of the two sets of issues reveals that they are similar but the lone issue nominated by the appellant is preferred for being apt and concise. I shall therefore determine this appeal in the light of the lone issue nominated by the appellant.
The fulcrum of the appellant’s complaint’s is that had the trial judge properly evaluated the evidence adduced before him vis-a-vis the defence put forward by the appellant, he would have come to the conclusion that the issue was a simple civil transaction between the appellant and PW1 devoid of any criminal imputation.
I have stated right from the onset that the appellant was charged and convicted for obtaining property by false pretence under Section 1(1),(2),(3) of Advance Fee Fraud and Other Related Offence Act, 2006. The said section provide as follows: –
“1. (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intend to defraud.
(a) obtains from any other person in Nigeria or other country for himself or any other person,
(b) induces any other person in Nigeria or in any other country, to deliver to any person, or
(c) obtaining any property whether or not the property is obtained or its delivery is induced through the medium of contract induced by the false pretence,
(2) A person who by false pretence and with intent to defraud induces any other person in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3) A person who commits an offence under sub-section (1) or (2) of this section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.”
In order to succeed on the above, the prosecution must prove the following elements: –
(1) That there is a pretence,
(2) That the pretence emanated from the accused person,
(3) And that it was false,
(4) That the accused person knew of its falsity or did not believe in its truth,
(5) That there was an intention to defraud,
(6) That the thing is capable of being stolen,
(7) That the accused person induced the owner to transfer his whole interest in the property.
In ONWUDIWE V. F.R.N. (Supra), it was held that the offence could be committed either by oral communication or in writing or even by conduct of the accused person. However, an honest belief in the truth of the statement on the part of the accused which later turned out to be false, cannot found a conviction on false pretence.
The evidence presented shows that one Mrs. Nancy Ndifon PW1 approached the appellant who works with Wilmond Motors and asked him to get a car for her wherein she gave him N2, 200, 000.00 (Two Million Two Hundred Thousand Naira) with the understanding of paying the balance of N300, 000 (Three Hundred Thousand Naira) by the time she gets the car. On the date the appellant was supposed to deliver the car, he said the car was seized by the Nigerian Custom. PW1 insisted on getting her money back and when that was not forthcoming, she reported the matter to the police. The appellant made an undertaking to pay back the money and when he defaulted the police filed a charge that gave rise to this appeal.
The appellant on his part testified that upon collecting PW1’s money he went to Cotonou and got a car but due to paucity of fund, he had to come back to Nigeria. He thereafter negotiated and mobilised a clearing agent. On their way back, the driver called and informed him that the car was seized by customs at Lagos.
It is a cardinal principle in criminal proceedings that the burden of proving a fact which if proved would lead to the conviction of the accused is on the prosecution who should prove such fact beyond reasonable doubt. Thus, any doubt in criminal cases as to the guilt of the accused arising from the contradictions in the prosecution’s evidence of vital issues must be resolved in favour of the accused. See AHMED V. STATE (1999) 5 SC (Prt 11) 39 at 47.
The critical question is did the prosecution prove the ingredients of the offence of obtaining by false pretence? I have set out the essential ingredients of the offence of obtaining by false pretence. The ingredients must be proved conjunctively and not disjunctively. Therefore, where convincing proof of any of the ingredients is absent; the charge cannot be said to have been proven beyond reasonable doubt. See BELLO V. F.R.N. (2018) LPELR – 43688 (CA).
In the instant case, the learned trial judge found that “the intention to defraud PW1 can be inferred from the inability of the Defendant despite Exhibit PW1-A to refund the money since 24th June, 2014 to when the matter was reported to the police and up to when the charge was eventually filed.” The evidence on record does not however establish that the appellant falsely presented himself as a person capable of selling the car to PW1 while in actual sense, he could not. Furthermore, the appellant did not induce PW1 to part with the purchase price.
Learned counsel for the respondent had made heavy weather of the evidence of PW2 to the effect that the appellant’s registered company is Shemdrop Nigeria Ltd and not Wilmond Motors. And that the owner of Wilmond Motors Mr. Omolade said he knows nothing about the transaction. In contrast to the findings of the learned trial judge, the appellant in his evidence was emphatic that he is a registered car dealer with registered company known as Shemdrop Nigeria Ltd as evident in the certificate of incorporation, Exhibit DW1 – B and as per the Memorandum of Association, Exhibit DW1 – C, the main object is car dealership. As regards his relationship with Wilmond Motors, the appellant as DW1 at page 38 of the record of appeal said: –
“I have my registered company in car dealing, but I am selling the car at Wilmond Motors stand at No.59 Marian Road Calabar.”
The above piece of evidence is in tandem with the evidence of PW1 who said that when she wanted to buy a Tayota RAV 4 Car, she went to the Defendant who works with Wilmond Motors. Thus, she knew the appellant as a car dealer operating from Wilmond Motors. Where then the appellant’s falsity in his representation to PW1? Clearly therefore, the evidence did not establish all the ingredients necessary for a charge of obtaining by false pretences to be held to have been established beyond reasonable doubt.
Learned counsel for the respondent submitted and I agree with his submission that the transaction between the appellant and PW1 is simply a contractual one which got frustrated by the seizure of the purchased vehicle by the Nigerian Custom. The appellant had raised a vital issue on the frustration of the said contract by the seizure but the police did not make any effort to verify and ascertain his claim. Worst still, the learned trial judge also treated the appellant’s defence with levity when he concluded at page 114 of the record thus: –
“The entire evidence as to the car being seized by the customs and the son of the Defendant being robbed on his way from the bank thereby losing the sum of N150, 000.00 (One Hundred and Fifty Thousand Naira) are not material in this case.”
The law is settled that any defence put forward by an accused person no matter how weak, foolish or unfounded must be investigated, and adequately considered by the Court in order to ascertain its veracity or accuracy. This, the learned trial Court has not done. In ONAH V THE STATE (1985) 3 NWLR (Prt 12) 236 at 244 Obaseki JSC observed as follows:
“The High Court and all Courts of law are duty bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on evidence and not on hunches rumour or suspicion so as to ensure that justice in its purest form is administered in the Courts to all and sundry.”
In the result, the lone issue is resolved in favour of the appellant. The prosecution did not prove the offence charged against the appellant beyond reasonable doubt to warrant his conviction by the lower Court. The appeal is meritorious and it succeeds per force.
The decision of the lower Court delivered on 25th May, 2017 is hereby set aside and the appellant is discharged and acquitted.
PHILOMENA MBUA EKPE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother Muhammed L. Shuaibu, JCA. My Lord has painstakingly dealt with the issues raised in this appeal and I agree entirely with the reasoning arrived at that the appeal is meritorious and it is succeeds per force.
HAMMA AKAWU BARKA, J.C.A.: I agree.
Appearances:
Enome J. Amatey For Appellant(s)
A. Ewah For Respondent(s)
