OKALA v. STATE
(2020)LCN/15383(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, September 18, 2020
CA/E/117C/2019
RATIO
CRIMINAL PROCEEDING: BURDEN OF PROOF
As in all criminal cases onus of proof is on the prosecution as the defendant is pursuant to Section 36 (5) of the Constitution presumed innocent until proven guilty.
It is important to state ab initio that proof beyond reasonable doubt is proof that precludes every reasonable hypothesis except that which it tends to support and it is proof, which is wholly consistent with the guilt of the defendant and inconsistent with any other rational conclusion. Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable imaginable state of affair other than that of the guilt of the defendant as he shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI VS STATE (2003) 4 NWLR (PT 809) 51 at 64.
It must also be noted that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. Once the ingredients of the particular offence the defendant is charged with, are proved, that constitutes proof beyond reasonable doubt. For the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1 at 35-36. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
Before Our Lordships:
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
IBE USU OKALA APPELANT(S)
And
THE STATE RESPONDENT(S)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Enugu State, Enugu Judicial Division, delivered on the 29th July, 2019 by OKPE J.
The Appellant was arraigned before the trial Court on a one count charge of obtaining goods by false pretence contrary to Section 8(a) and punishable under Section 1 (1) (a) and (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, to which he pleaded not guilty.
At trial, prosecution called three witnesses comprising the police investigator, the victim’s brother and the victim while the Appellant testified from the witness box and called an additional witness. After taking final addresses from the respective counsel, the learned trial Judge delivered a reserved judgment wherein he found the Appellant guilty and sentenced him to the mandatory minimum term of seven years imprisonment without an option of fine.
Apparently dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 28th October, 2019 containing three grounds.
At the hearing of the appeal, Mr. Ononugbo who held the brief of Mr. Iwuozor, the learned counsel for the Appellant, adopted the Appellant’s brief filed on the 10th February, 2020 as well as the Appellant’s Reply brief filed on the 17th June, 2020 as the arguments of the Appellant in furtherance of the appeal.
Mr. Ugwuja the learned counsel for the Respondent equally adopted the Respondent’s brief filed on the 29th May, 2020 but deemed properly filed and served on the 9th June, 2020 as the arguments of the Respondent in contesting the appeal.
Worshipping at the altar of prolixity with the burnt offering of tautology, the Appellant distilled about six issues from his three grounds of appeal thus:
a. Whether upon a proper dispassionate and total evaluation of all the evidence on the records, the case against the Appellant could be said to have been proved beyond reasonable doubt by the prosecution.
b. Whether the prosecution discharged the burden on them to prove the guilt of the Appellant.
c. Whether the prosecution was able to establish the ingredients of obtaining by false pretenses beyond reasonable doubt.
d. Whether considering the material facts, the nature of the transaction leading to this case, whether the lower Court was right to convict the Appellant under the offence of obtaining by false pretense and punished him under the law of Advance Fee Fraud.
Or
e. Whether the Advance Fee Fraud and other Related Offences Law was enacted by the legislators to make a scape goat against any genuine businessman who due to circumstances beyond his control defaulted in carrying out his contractual obligation in a genuine business transaction.
f. If the answer to issues a, b, c, d, and e is in the negative, then whether the Appellant is not entitled to be discharged and acquitted.
The Respondent on the other hand distilled a lone issue for determination thus:
Whether the prosecution proved the offence of Advance Fee Fraud and other Related Offences against the Appellant beyond reasonable doubt.
It seems to me that what calls for determination here could be summed up in a lone issue formulated thus:
Whether the Respondent was able to establish the ingredients of obtaining goods by false pretence contrary to Section 8(a) and punishable under Section 1 (1) (a) and (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 beyond reasonable doubt against the Appellant.
The arguments of the two sides shall be considered under this lone issue.
It was submitted for the Appellant that an accused would be entitled to an acquittal if the evidence adduced against him is susceptible to two probabilities, i.e. either of guilt or innocence. Learned counsel referred to AMALA VS. STATE (2004) 11 MJSC 147 at 154.
It was further submitted for the Appellant that the lower Court failed to accord a proper probative value to Exhibit C (Appellant’s statement of account) which contains proof that money was transferred to an auto company account, which the prosecution and the lower Court failed to take cognisance of. Learned counsel added that the failure of the Court to properly evaluate this evidence negates the doctrine of proof beyond reasonable doubt and constitutes a dereliction of duty.
It was argued for the Appellant that the prosecution has a duty to put forward such compelling evidence against the accused that it leaves no reasonable man in doubt as to probability of the accused committing the offence, and that any doubt existing in the case must be resolved in favour of the accused. Learned counsel referred to CHUKWUMA VS.FRN (2011) 5 (PT. 11) MJSC 1 at 5, NJOKU VS.STATE (2013) 2 NWLR (PT. 133) 548, EGWUMI VS. STATE (2013) 2 SC (PT. III) 119, OCHIBA VS. STATE (2011) 12 SC (PT. IV) 79, FATOYINBO VS. ATTORNEY GENERAL OF WESTERN NIG. (1966) WRNLR 4, OKEKE VS THE STATE (1995) 4 NWLR (PT. 392) 676, AKINYEMI VS THE STATE (1999) 6 NWLR (PT 607) 449 at 463-464.
It was contended that the Appellant’s guilt cannot be established by the mere assumptions contained in the complainant’s petition and Exhibit D (the police investigation report) and that a conviction based wrong inferences, suspicion and circumstantial evidence amounts to a miscarriage of justice. Learned counsel submitted that a proper evaluation of exhibit D would raise doubts about the guilt of the Appellant and referred to IDOWU VS. THE STATE 1997-1998 ALL NLR 389 at 391, OSENI VS. STATE (2012) 5 NWLR (PT. 1293) 351 and BAKARE VS. STATE (1987) 1 NWLR (PT. 52) 285.
It was argued that the prosecution not only has a burden to prove the guilt of the accused but also to rebut any defence no matter how stupid it may appear. Reference was made to OMOTAYO VS. STATE (2013) 2 NWLR (PT. 1338) 235 and FRN VS. USMAN (2012) 8 NWLR (PT. 1301) 141.
It was further argued that the lower Court was wrong in asking the Appellant to produce the car agent, who was on the run, as a witness noting that although the Appellant may have lied and refused to disclose to PW3 that he had a car agent in Exhibit F but that lies alone are not sufficient to convict the accused and do not absolve the prosecution of the duty of burden of proof. Learned counsel referred to AYUB-KHAN VS STATE (1991) NSCC 300 and OGIDI VS. STATE (2005) 5 MJSC 155 at 159.
It was contended that the main object of the offence of obtaining by false pretences is deception and that where the prosecution makes intention to defraud an element of the offence charged, they have a burden to prove it beyond reasonable doubt. It was submitted that Exhibit F shows that the Appellant had no intention to deceive and did not use the cover of the internet to solicit for the transaction. That the Appellant was only a genuine car dealer that encountered an unfortunate transaction, and accordingly, did not possess the requisite mens rea. Learned counsel referred to OFUANI V. NIGERIAN NAVY (2007) 8 NWLR (PT. 1037) 470 AT 472.
Mr. Ononugbo outlined the essential ingredients of the offence of obtaining by false pretence and submitted that where the accused honestly believed the representation to be true and it turns out to be false, as in the present case, there is no false pretence. He referred to OKORO VS. AG WESTERN NIGERIA (1965) NSCC 225 and EDE & ANOR VS. FRN (2001) 1 NWLR (695) 502.
He submitted that the representation made must be proved to be false and not presumed to be false. He referred toR VS. ALIYU ZARIA (1959) NRNLR 67 and stated that a defence was raised that the Appellant made a payment of N2,000,000 for the importation of the car, which the police failed to investigate and that as such the Police only assumed but failed to prove that the representation was false.
The learned counsel further submitted on intention to defraud that the intention of the Appellant can be inferred from the facts of the case which include, the transfer of Two million Naira to the car agent, the trip made by the Appellant to the car agent’s house, the petition written by the Appellant against the car agent upon failure to deliver the car etc. He referred to R VS Sullivan (1964) 1 KB 169.
He also submitted that where there is doubt as to whether the victim was induced by false pretence or whether it operated upon the mind of the victim, the accused person ought to be given the benefit of the doubt and acquitted. He referred to ALLI VS POLICE (1952) 10 NLR 107.
He submitted further that the spirit of the law and concept of Advance fee fraud statute was to punish scammers and not genuine businessmen who run into ill luck like the Appellant and referred to IKUFORIJI VS FRN (2018) 1 MJSC P. 50 at 56.
The learned counsel for the Appellant urged this Court to set aside the decision of the trial Court.
Contrariwise, Mr. Ugwuja submitted that the evidence of PW1, PW2 and PW3 show that the Appellant committed the offence and that the Appellant claimed to be licensed car dealer but that throughout the course of the transaction, up until the time for payment, he never mentioned that he had a third-party agent. He submitted that where evidence before the Court is neither challenged nor debunked by the adverse party, the evidence remains good and credible and must be relied upon by the Court. He referred toEBEINIRE VS THE STATE (2011) 7 NWLR (PT. 1246) 402 at 408.
The learned counsel further submitted that the Appellant’s defence that Two Million Naira was transferred to one Simautos account does not hold up as it was only transferred a year after the PW3’s money was transferred to the Appellant’s account.
He submitted that the Appellant’s intention to defraud is apparent from Exhibit F, wherein the Appellant made promises to PW3 which were never fulfilled. He pointed out that in the history of the Appellant’s account, such a large sum had never been received, and referred to details of some of the money spent by the Appellant which supports the allegation of fraud. He further referred to portions of Exhibit F which showed that PW3 had been promised several times by the Appellant that the car was on the high sea and that the bill of laden would be sent soon. He related it however to when the Appellant was being cross examined and said he did not know what a bill of lading is.
The learned counsel equally outlined the ingredients of the offence of obtaining by false pretence and submitted that the prosecution proved its case beyond reasonable doubt. He urged the Court to affirm the judgment of the lower Court and referred to IKPA VS THE STATE (2017) LPELR-42590 42-45.
In the Reply brief, it was reiterated that the prosecution failed to establish the guilt of the Appellant beyond reasonable doubt. Learned counsel urged the Court to quash the conviction and set aside the judgment of the trial Court.
As in all criminal cases onus of proof is on the prosecution as the defendant is pursuant to Section 36 (5) of the Constitution presumed innocent until proven guilty.
It is important to state ab initio that proof beyond reasonable doubt is proof that precludes every reasonable hypothesis except that which it tends to support and it is proof, which is wholly consistent with the guilt of the defendant and inconsistent with any other rational conclusion. Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable imaginable state of affair other than that of the guilt of the defendant as he shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI VS STATE (2003) 4 NWLR (PT 809) 51 at 64.
It must also be noted that proof beyond reasonable doubt is not proof beyond any shadow of doubt. The degree of proof that would amount to reasonable doubt need not reach certainty, but it will carry a high degree of probability. Once the ingredients of the particular offence the defendant is charged with, are proved, that constitutes proof beyond reasonable doubt. For the defendant to be entitled to the benefit of doubt, the doubt must be a genuine and reasonable one arising from some evidence before the Court. See NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1 at 35-36.
As stated earlier, the Appellant was charged with one count of obtaining goods by false pretence contrary to Section 8(a) and punishable under Section 1 (1) (a) and (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
To appreciate the ingredients of the alleged offence it is apposite that I set out the provisions of Sections 1(1) (a), (3) and 8(a) of the said Advance Fee Fraud and Other Fraud Related Offences Act, 2006 thus:
1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or
(3) A person who commits an offence under subsection (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.
8. A person who –
(a) conspires with, aids, abets, or counsels any other person to commit an offence under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
The particulars of the alleged offences was stated as follows:
Ibe Usu Okala on or about the month of August, 2016 at Independence Layout Enugu within jurisdiction with intent to defraud induced Ezema Michael to pay into your Fidelity Bank account a total sum of N2, 700,000.00 (Two Million Seven Hundred Thousand Naira) only under the false pretence that you buy and supply to him Rx 350 Lexus Jeep Car 3.
As earlier stated, to succeed in discharging the onus on it to establish the guilt of the Appellant, the Respondent must prove the ingredients of the alleged offence beyond reasonable doubt. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567. The ingredients to be proved in a charge of obtaining by false are that there was pretence, that the pretence emanated from the defendant, that the said pretence is false, that the defendant knew of the falsity or did not believe in its truth, that there is an intention to defraud, and that the defendant induced the owner to transfer his whole interest in the property. See ALAKE VS STATE (supra), IKPA VS. STATE (2017) LPELR-42590 (SC) per AUGIE, JSC at 44-45 and EZEANI VS. FRN (2019) LPELR-46800 (SC) per OKORO, JSC at 23-25.
At trial, the Respondent called 3 witnesses and tendered documentary exhibits which included the extra judicial statement of the Appellant, bank deposit slip showing that the sum of N2.7million was paid into his account at Fidelity Bank, the statement of account of the Appellant’s account at Fidelity Bank and the chat record of the communication between the Appellant and the victim, PW3 admitted as exhibit F without objection.
The said exhibit F is of particular importance to this case as it contains how the Appellant persuaded PW3 to part with the money involved and the various other false representations made by the Appellant to PW3 including fake pictures of cars. Throughout the communication in exhibit F, the Appellant did not mention the existence of any agent he paid any money to. He lied not only about the car he purportedly purchased but equally lied about the shipment and bill of lading thereof.
The existence of the so called agent was only known to the Appellant and he had the onus of establishing it, this is not tantamount to shifting the onus of proof. Pursuant to Section 140 of the Evidence Act, the task of proving a special defence within the knowledge of an accused person is on the accused. See WAKALA VS STATE (1991) 8 NWLR (PT 211) 552, EZEKWE VS. STATE (2018) LPELR-44392 (SC) and DAVID VS. FRN (2018) LPELR-43677 (CA).
The finding of the learned trial Judge that the ingredients of the offence of obtaining by false pretence against the Appellant were established beyond reasonable doubt, cannot be faulted going by the evidence adduced at trial.
The Appellant’s counsel made a vigorous attempt to present the Appellant as a genuine businessman who fell into some unfortunate circumstances. From the available evidence, this is far from the truth. If anything, the Appellant is a major contributor to the diminishing trust in our business space in this country.
I therefore resolve the sole issue for determination against the Appellant and in favour of the Respondent.
I find no merit in this appeal and I dismiss it accordingly.
The judgment of the trial Court is hereby affirmed.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.
ABUBAKAR SADIQ UMAR, J.C.A.: My learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA has exhaustively considered and completely resolved the sole issue for determination.
I am in complete agreement with the reasoning and conclusions and I joined him in saying that the appeal lacks merit and should be dismissed.
I also affirm the judgment of the lower Court and abide with the conclusions reached by my learned brother.
Appeal dismissed.
Appearances:
Mr. B. A. Ononugbo holding brief for Mr. K. C. Iwuozor For Appellant(s)
Mr. B. I. Ugwuja For Respondent(s)
