NDAHI v. FRN
(2022)LCN/17189(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Friday, December 02, 2022
CA/G/80C/2022
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ISAAC HARAMI NDAHI APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law. See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. PER TOBI, J.C.A.
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent. The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416. I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107. PER TOBI, J.C.A.
THE DIFFERENCE BETWEEN THE STANDARD OF PROOF IN CIVIL MATTERS AND CRIMINAL MATTERS
The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). PER TOBI, J.C.A.
THE POSITION OF LAW ON WHERE THERE IS A DOUBT IN THE CASE OF THE PROSECUTION
This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA). PER TOBI, J.C.A.
THE POSITION OF LAW ON THE OFFENCE OF OBTAINING BY FALSE PRETENCE
Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence. I quote same as follows in Section 20 of the Interpretation Section of the Act as follows:
“‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.”
To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows:
“Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004. The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud:
(a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine…. On the counts of obtaining by false presence, the transaction has shown clearly as follow:
1. That there was a pretence.
2. That the pretence emanated from the accused persons including the appellant.
3. That the pretence was false.
4. That the appellant and his co-accused person knew that it was false.
5. That there was an intention to defraud
6. That the monies obtained from the PW1 was capable of being stolen, and
7. That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C
One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:
“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts
I. A pretence is made by way of representation.
II. From the accused person.
III. To the person defrauded.
IV. The representation is a pretence.
IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person.
VIII. The property transferred is capable of being stolen i.e. is as portable.
These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C. PER TOBI, J.C.A.
EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was charged on a one count charge for the offence of Obtaining Money by false pretense punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. The lower Court after taking the evidence of the parties evaluated same and the submission of Counsel, delivered its judgment on 28/02/2022 as found at pages 178-196 of the record of this appeal. In the said judgment, the Lower Court, presided over by his Lordship, Fadawu Umaru J. of the Borno State High Court, Maiduguri Judicial Division, convicted the Appellant for the offence charged, and sentenced him to Seven years imprisonment. The lower Court which is also the trial Court specifically at pages 194-195 of the record held thus:
“It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or goods such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR (Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.
On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’
It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal on 29/3/2022 of 4 grounds found at pages 197-200 of the record.
Although, the fact that culminated into this appeal are not complicated, it is however, the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.
The case of the Respondent in the lower Court presented through PW1, PW2 and PW3 is that one Engineer Abba Aji Monguno, the nominal complainant wrote a petition against the Appellant to the Economic and Financial Crimes Commission (EFCC) on 6/6/2020, alleging that the Appellant deceived him into parting with the sum of Three Million Naira (N3,000,000.00) as the Appellant used a fake Purchase Order purported to have emanated from the Danish Refugee Council under the guise of executing a contract which was found to be false. This amounts to a fraudulent act which led to the arraignment of the Appellant by the EFCC, and event ual conviction and sentencing of the Appellant for the offence of Obtaining under False Pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
Conversely, the Appellant’s case is that he made no such representation to the PW1, although, he admitted borrowing the sum of N3,000,000.00 from the nominal complainant, who is the father of PW1 which he could not pay back because thieves burgled his house and took the sum of Six Million Naira (N6,000,000.00) from which the payment to the Appellant should have been made. While not denying that he took money from the nominal complainant, the Appellant denied vehemently that he made a representation to PW1 that he needed the money to execute a contract. The lower Court did not believe him and therefore, convicted and sentenced him on the ground that the Respondent had proved his case beyond reasonable doubt.
Upon filing the Notice of Appeal, and compilation and transmission of the record to this Court, the Appellant filed his brief through his counsel, Ibrahim Haruna Ngada Esq., wherein he formulated 3 issues for determination viz:
1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court.
2. Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant.
3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.
Arguing the first issue, Appellant’s Counsel submitted that the lower Court relied absolutely on the oral evidence of PW2 who stated that his investigation revealed that there was no contract and the money transferred to the Appellant’s account was used for a different purpose by sending the money to different accounts, making cash withdrawal and settling premature loans. Learned counsel further submitted that PW3’s evidence that he analyzed the statement of account of the Appellant which revealed that the Appellant spent the money for purposes the money was not taken was rejected in evidence, and this cannot be relied upon by the Court to convict the Appellant, citing in reliance Alam Oparaji & Ors Vs. Nwosu Ohanu & 7 Ors (1999) 9 NWLR(Part 618) page 270 at 307, Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR(Pt.999). It is the further submission of counsel that the evidence of contents of a document is not admissible save the document itself, as provided for by Section 125 of the Evidence Act 2011 and the decision of the Court in General Sani Abacha & 3 Ors Vs. Chief Gani Fawehinmi (2000) 6 NWLR (Part 660) Page 228 at 295. Learned counsel submitted further that the trial Court approbated and reprobated at the same time when it rejected the document, but admitted the oral evidence over the document in convicting the Appellant. Learned counsel urges this Court to resolve the first issue in favour of the Appellant.
On issue 2, Learned Appellant’s counsel submitted that the burden of proof of a criminal charge is on the prosecution which is proof beyond reasonable doubt, Learned counsel referred this Court to a plethora of authorities, among which are: The State V. Nathaniel Okpala (2012) 3 NWLR (Part 1287) page 388 at 400-401 paras H-D, Enesi Lukman Abdullahi Vs. The State (2008)17 NWLR (Part 1115) page 203 at 216 Para H, Sabina Chikaodi Madu Vs. The State (2012)15 NWLR (Part 1324) Page 405 at 454-455 paras H-B. It is the further submission of Counsel that the inability of the nominal complainant, Engr. Abba Aji Monguno to testify, and the none tendering of the purported fake or false Purchase order by the Respondent in the trial Court made the decision of the Court untenable. Learned Appellant’s counsel anchored this submission on the evidence of PW1 at page 162 line 17 of the record to the effect that no document was ever given to the nominal complaint by the Appellant. On Exhibit B, Learned Counsel submitted that it is documentary hearsay and that by Section 38 of the Evidence Act 2011, is inadmissible and not to be relied upon by the Court. He also submitted that the evidence of PW1 was mere allegations and suspicions and PW2 and PW3 inability to investigate the robbery incidence that affected the Appellant is fatal to the case of the Respondent and the decision of the Court. The Respondent according to counsel is unable to prove beyond reasonable doubt the ingredients of the offence the Appellant was charged for and therefore, the conviction and sentence of the Appellant was wrong.
In his effort to further extricate the Appellant from the rope of conviction on his neck and the sentence, Learned Appellant’s Counsel submitted that the evidence of the Respondent’s witnesses could not establish the offence, and the investigation was casual as PW2 and PW3 admitted not writing to the Danish Refugee Council to confirm whether there was a fake order or even if the said Ibrahim Mbasuwa was a contractor as explained by the Appellant. He urged this Court to hold that there was no false Pretence. Learned Appellant’s Counsel did not only submitted that the Respondent could not establish false pretence and the element of fraud, but also that the case of the Respondent is based purely on mere suspicion which has no place in criminal liability referring to University of Calabar V. Franklin C. Ugochukwu & 9 Ors (2007)17 NWLR (Part.1063) page 248 at 264 paras B-G.
On the final issue, Learned Counsel submitted that the burden of proving guilt is on the Respondent and this burden does not shift, relying on Federal Republic of Nigeria Vs. Mohammed Usman & Anor (2012) 8 NWLR (Part 1301) page 141 at 156-157 paras H-A, Corporal Desmond Ononuju Vs. The State (2014) 6 NWLR (Part1409) page 345 at 389-390 paras G-A. It is the submission of counsel that the trial Court shifted the burden to the Appellant to prove his innocence when it asked him to call his friend, Ibrahim Mbasuwa to tender the document from Danish Refugee Council, or any document from the police or call a neighbor to prove that the Appellant’s house was burgled. Learned Counsel for the Appellant finally urged this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.
The Respondent through Ojogbane Amade Johnson Esq., filed its brief on 05/7/2022 and therein formulated a sole issue for determination viz;
Whether the learned trial judge was right to have convicted the Appellant on a one-count charge of obtaining under false pretense and sentenced to seven years imprisonment under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act 2006.
In his submission on this sole issue, learned Respondent’s Counsel invited this Court to take judicial notice of the combined effects of Sections 1(1) (a), and Section 20 of the Advanced Fee Fraud and Other Offences Act, 2006 pursuant to Section 112 of the Evidence Act 2011, together with the case of Brilla Energy Ltd. Vs. F.R.N (2018) NWLR part 1645, while listing the ingredients of the offence of obtaining by false pretense, and urged this Court to dismiss the appeal.
In respond to the submission of the Appellant in paragraphs 4.1.1 and 4.1.2 of his brief, the learned Respondent’s counsel submitted that PW2 and PW3 testified as operatives of the EFCC, and were competent to testify as their evidence were based on their investigation, and such evidence cannot be hearsay, citing Interdrill (Nig) Ltd Vs. United Bank for Africa Plc (2017) ALL FWLR (pt.904) SC Page 1177 at 1193 paras E-H. Relying on the evidence of PW1, PW2 and PW3, the documents tendered in Court, learned Respondent’s Counsel submitted that the Respondent has discharged the burden placed on it by law to prove the guilt of the Appellant beyond reasonable doubt which its need not prove by a host of witnesses.
It is the further submission of learned counsel that the case of Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR (Pt. 999) cited by the learned Appellant’s counsel was irrelevant as the trial judge did not rely on the rejected document in his judgment.
Learned Respondent’s Counsel urged this Court to take judicial notice of Sections 1,3,4,5, 6, 7 and 122(2)(a) of the Evidence Act 2011 which imposes an obligation on the Court to admit evidence and facts that are relevant to the fact in issue which was relied upon by the trial Court. Learned Counsel also referred this Court to pages 163-165 of the record and further reviewed the evidence of PW1 and PW2 while submitting that Exhibit B does not amount to documentary hearsay. Learned Counsel urged Court to dismiss the appeal and affirm the decision of the trial Court.
The submissions of counsel on behalf of parties to this appeal revealed the precise nature of the facts of the case. The Appellant was charged, tried and convicted for an offence contrary to and punishable under Section 1 (1)(b) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006. The charge in summary is that the Appellant made a representation which he knows to be false to the effect that he had a contract or a Purchase Order from Danish Refuge Council, upon which he took N3,000,000 from one Egnr Abba Aji Monguno for the purpose of executing the contract which was alleged to be faked and probably non-existing. In simple language, the Appellant allegedly collected the said money on false Pretence. The lower Court subjected the Appellant to full trial, took evidence, and finally convicted and sentence the Appellant for the offence charged. The Appellant is now challenging his conviction on the premise that the Respondent could not prove the offence for which he was charged.
Before I look at the merit of this appeal, I should reproduce the provision of the law the Appellant was charged, convicted and sentenced for. The section provides thus:
“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
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
(c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act…
(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.”
From the above provision, the prosecution must prove the element of false pretence with the intention to defraud against a defendant for any conviction to stand. See Ikpa vs State (2017) 4 NWLR (pt 1609) 175, Onwudiwe vs FRN (2006) LPELR-2715 (SC), Adeniji vs FRN(2021) LPELR-52818 (CA). The trial Court had convicted and sentenced the Appellant which translate to mean that the Court was satisfied with the evidence before it that the Respondent had proved the ingredient of the offence beyond reasonable doubt by either direct evidence, circumstantial evidence, and or confessional statement.
My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law. See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218.
In doing so, I also must make a point very clear which is that, it is of no moment to inquire on the evidence as to whether the Appellant’s house was burgled into and the sum of N6,000,000.00 stolen. Also from the facts of the case and the charge against the Appellant, it is not relevant at all whether the Appellant paid back the money or the reasons he could not pay back. The offence is related to when and why the Appellant took the money from PW1’s father and maybe, what he did with the money but certainly, not whether he has paid or why he has not paid. All the reference in the judgment and the submissions of counsel on whether the case of the burglary was reported to the police and on whom lies the burden to prove that is a completely out of place here. I certainly will not engage in such a wasteful exercise. I will rather deal with issues relevant to this appeal.
In this regard, I wish to adopt the three issues by the learned Appellant formulated ’s counsel in his brief. These issues, to my mind, are apt and covered the complaint contained in the grounds of the Appeal. However, before I do so, I will state some general principle of criminal law that will assist me in deciding this appeal. Whether I will allow or dismiss this appeal depends solely on whether the trial Court applied the established principle of criminal law in deciding the case before it.
I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent. The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416. I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107.
The duty on the Respondent to prove that the Appellant is guilty of the offence he is charged for must be either by direct evidence, circumstantial evidence or confessional statement. See State vs Sadiq (2022) 5 NWLR (pt 1824) 413, Okiemute vs State (2016) 15 NWLR (pt. 1535) 297.
Once again and for the avoidance of doubt, I must state that the burden to prove that the Appellant committed the offence he was charged for is solely on the shoulders of the Respondent. The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs. The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held:
“Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt. See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held:
“Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt. One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.”
The criminal justice system will rather let 10 guilty people go scot-free than for one innocent person to be wrongly convicted. This is why conviction would not be based on suspicion no matter how grave but on clear evidence pointing to the accused as the person who indeed, committed the offence. SeeIgbikis vs State (2017) 2-3 S.C. (pt 1) 78, State vs Ajayi (2016) LPELR-40663(SC). In Udor vs State (2014) LPELR-23064(SC) to drive home this point the apex Court held:
“The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt.698) 576.” Per MOHAMMED, J.S.C.
This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA). Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence. I quote same as follows in Section 20 of the Interpretation Section of the Act as follows:
“‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.”
To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows:
“Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004. The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud:
(a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine…. On the counts of obtaining by false presence, the transaction has shown clearly as follow:
1. That there was a pretence.
2. That the pretence emanated from the accused persons including the appellant.
3. That the pretence was false.
4. That the appellant and his co-accused person knew that it was false.
5. That there was an intention to defraud
6. That the monies obtained from the PW1 was capable of being stolen, and
7. That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C
One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:
“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts
I. A pretence is made by way of representation.
II. From the accused person.
III. To the person defrauded.
IV. The representation is a pretence.
IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person.
VIII. The property transferred is capable of being stolen i.e. is as portable.
These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C.
On the strength of the above, the decision of the lower Court will only be affirmed if those elements are proved beyond reasonable doubt by either direct evidence, circumstantial evidence or through a confessional statement. At this point, I will reproduce the issue for determination in this appeal in the Appellant’s brief which I hereby adopt. The issues are:
1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court.
2. Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant.
3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.
RESOLUTION
ISSUE ONE
On issue 1, I am of the opinion that the decision of the trial Court was not based on rejected evidence as the Appellant’s counsel submitted.
It is trite law that a document rejected by a Court has no life and cannot be relied upon by any Court in arriving at a decision. The rejected document is of no relevance whatsoever in law and lacks probative value. See Amgbare vs Sylva (2009) 1 NWLR (pt 1121) 1, Airtel Network Ltd vs Plus Ltd (2020) 15 NWLR (pt 1747) 235, Emokpae vs Stanbic-IBTC P.M Ltd (2015) 17 NWLR (pt 1487) 57.
I have gone through the judgment, and I am comfortable in holding that the decision of the Court was not based on the rejected document but rather on the evidence of PW1, PW2 and PW3.
What constitute evidence before a Court are oral, documentary or real evidence, and any of the parties before a Court can establish his case by any of the evidence listed above.
I am not aware of any law that says that oral evidence can only be relied upon when it corresponds with a document.
Although, in law, a type of evidence for instance, documentary evidence, can carry more weight than oral evidence, but a party can still establish his case by oral evidence alone in the absence of any documentary evidence. The fact that the document was tendered and rejected does not make any oral evidence on the content of the document inadmissible as Appellant’s counsel wants us to believe.
The position of Appellant’s counsel in this front, is new learning to me, a point I do not want to learn because, it does not represent the correct legal position. Although there is a common saying that ‘we learn everything’, but certainly not what does not represent the correct and current legal position in an issue.
What the law requires is that once a document has been tendered and admitted, no oral evidence will be allowed which is at variance with the documentary evidence. See Ibrahim vs Abdallah & Ors (2019) LPELR-48984(SC), Bello vs Idris (2022) LPELR-56730 (CA).
In the instant case, there is no documentary evidence which can be compared with the oral evidence to show any variance. The Respondent’s witnesses are at liberty to testify even if the evidence is on all force with the content of the rejected document. It is only wrong if the Court base its judgment on the document. In this appeal, the judgment is based on the oral evidence and not the rejected document. To buttress this point I will quote again the decision of the trial Court at pages 194-195 of the record. This is what the Court said:
“It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or good, such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR(Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.
On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’
There is nothing in this portion of the judgment or any part of the 25 pages judgment which suggest that the lower Court relied on the rejected document. While I am firmly of the opinion that the decision of the trial Court is not based on the rejected document, I will therefore, resolve this issue in favour of the Respondent.
ISSUES TWO & THREE
I will address issues 2 and 3 together. The question are whether the Respondent proved its case at the trial Court beyond reasonable doubt and whether the Court appropriately placed the burden of prove in the right place? I have stated above the ingredients of the offence the Appellant was charged with, and for which he was convicted and sentenced. I have also stated that the Respondent has a duty in law to prove beyond reasonable doubt all the ingredients of the offence. The Respondent case at the trial Court as prosecution is that, the Appellant made a false presentation to the father of the PW1 that he has a contract with Danish Refugees Council which made him depart with N3,000,000.00 to enable the Appellant execute the contract. By the wordings of the charge sheet, the Appellant was alleged to have used a fake purchase order to carry out this deceptive act. The fake purchase order was falsely and fraudulently presented as original to PW1’s fatherwhich he acted on. This the Appellant denied of ever presented any purchase order to the nominal Complainant, Engineer Abba Aji Monguno but rather, told him to borrow to the Appellant, some money for him to carry out a contract awarded to his friend for which the said Abba Aji Monguno was to get Three Hundred Thousand Naira (N300,000) as interest or profit from the loan. The question here therefore is whether the evidence before the trial Court lane toward obtaining money by false pretence, based on the alleged fake purchase order or on the fact that it was a loan given to the Appellant. It is my opinion that if the trial Court had agreed with the Appellant that it was a loan he secured from Engr. Abba Aji Mongunor, the decision will not have gone the way it did. The decision went the way it did because the Court is of the view that the Appellant made a false representation to make the nominal Complainant part with his N3,000,000.00. What is paramount here therefore, is the status of the purchase order presented to the nominal Complainant.
The question therefore is, whether there is sufficient evidence before the trial Court that such a representation was made by the Appellant to Abdulwahab Abba Aji, the PW1 or his father, the nominal complainant. I must state without any equivocation that the Respondent has the duty and indeed burden to show before the Court that a purchase order was indeed, shown to the nominal complainant which turned out to be fake. This is a key factor in determining this appeal.
The operative word is ‘fake’. For anything to be fake, there must be an original. The purchase order will be declared fake after comparing same with the original.
I must make the point the Appellant has ably made through his counsel that there is no document before the Court indicating or looking like a purchase order.
The Appellant has also rightly in my view challenged the investigation of the PW2 and PW3 as not being thorough when it did not contact Danish Refugee Council to know whether there was a contract given to either the Appellant or the friend of the Appellant whom the Appellant said got the contract from. The fact that the Appellant was unable to produce his friend Ibrahim Mbasuwa is not damaging to his case. This will only become relevant if the Respondent had produced or given satisfactory evidence that the Appellant presented fake purchase order to the PW1. The statement written by the Appellant which are Exhibits A, A1-A5 are not admission or confessions as they deny the offence the Appellant was charged for. The Appellant admitted receiving the money from PW1 but as loan, and not on any representation of falsehood with intention to defraud. In the circumstance, the burden is on the shoulders of the Respondent to have shown before the Court the ingredients of the offence. I have gone through the judgment of the trial Court, I am unable to see where the Court gave reasons for the finding that all the ingredients of the offence has been proved. With due respect, no thorough evaluation was made of the evidence before the trial Court.
I will at this point look at the entire record of the appeal viz- vis the evidence of the Respondent in determining whether the lower Court was right in its findings. In doing so, I am conscious of the fact that I will not interfere with the finding of the lower Court except it is perverse.
The case of the Respondent is founded on the evidence of PW1, PW2 and PW3. The evidence of PW1, Abdulwahab Abba Aji is found at pages 160-163 of the record. The PW1 made no mention of any purchase order presented to him talkless of its being fake. His viva voice evidence at pages 160 and 161 of the record on the point states thus:
“The accused called me sometime around 5th September, 2019 and asked me if I have money as he has secured a contract with Danish Refugee Council and that he need the sum of N2,000,000.00k…On 18/9/2019, that is after two weeks that the accused was to return the money the accused asked me to add N1,000,000.00.00K on the basis that the contract he is executing is at 80% completion and that he needs the N1,000,000.00k to complete the contract on the same terms and condition.”
There is nothing in the above evidence that talked about any Purchase Order presented to the PW1. This is important because the case of the Respondent against the Appellant is principally founded on alleged fake purchase order. The witness gave no evidence of purchase order presented to the father of PW, that is the nominal complainant, to convince him part with the money.
PW2 is Emmanuel Emeka Ibeneme, an operative of the EFCC who was part of the team that investigated the petition against the Appellant marked as Exhibit B. The evidence-in-chief of the PW2 also made no mention of purchase order, as all the witness said as his investigation revealed that the sum of N3,000,000.00 was transferred to the Appellant by the PW1 father for the purpose of a contract which was not in existence. The Appellant used the money for other purpose instead of executing the alleged contract which was found to be non-existing. The PW2’s investigation revealed that there was no contract issued to the Appellant. He categorically said at page 165 of the record that: “There was no contract the accused only used that medium to obtain money from the complainant by false pretence.”
Under cross–examination, PW2 admitted that his investigation did not take him to Danish Refugee Council because the Appellant did not present any document. In spite of this, the Appellant was charged for obtaining money under false pretence on the premise of presenting fake purchase receipt. This is strange.
PW3 is an official of EFCC who also investigated the petition against the Appellant. His evidence found at pages 166-169, is not radically different from PW2’s evidence. All that the witness did was to analyze the response from Guaranty Trust Bank with respect to the Appellant’s bank account domiciled there, and discovered that the money the Appellant received was not used for the purpose it was received. The witness did not take part in the final investigation, and under cross-examination he said he is not ‘aware if the accused (sic) facilitated a contract. I did not partake to the conclusion of the investigation’. The documents attached to Exhibit B only shows that the sum of N3,000,000.00 was paid to the Appellant which he did not deny. It also shows that the Appellant tried to payback some amount out of the money. There is no evidence apart from the oral evidence that the money was used for other purpose. Once again there is nothing in his evidence relating to presentation of fake purchase order.
It would appear to me that the way the charge was couched is such that the falsehood is based on the allegation of presentation and using of a fake purchase order. This implies in my view a document which is a purchase order must be tendered. None of the Respondent’s witnesses mentioned anything about purchase order or the nature of the contract they claimed Appellant told the PW1’s father he had from the Danish Refugee Council.
I will now turn to the evidence of the Appellant before the trial Court. His evidence is that he told the PW1 that he needed money to join someone by name Ibrahim Mbasuwa to execute a contract. In his testimony, Appellant said in his evidence In-Chief at page 175 of the record that:
“… I told the officer that I borrowed the money to join with a friend to secure a contract. I was shown the petition which I read I told the officer I had no purchase order… I did not obtain money by false pretence.”
Under cross examination, Appellant said:
“The N300,000.00k told (sic) was for the purpose of executing a contract. I did execute the contract and I have no documents for the contract.”
I have gone through the above evidence there is no evidence whatsoever that fake purchase order was presented which misled the PW1’s father. While PW1 evidence is that the Appellant told him he needed the money to execute a contract he got from Danish Refugee Council, the Appellant said that he told the PW1 that he needed the money to jointly execute a contract with a friend. In the light of this conflicting evidence, it is important to know how the trial Court evaluated the evidence to come to the conclusion that the Respondent proved its case beyond reasonable doubt. By the charge, the Respondent relied on a fake purchase order which was not part of the evidence of all the parties, and that the money was not used for the purpose it was taken for. There is no clear evidence on that apart from the PW2 and PW3 saying so. The evidence of PW2 and PW3 will be inadequate in the light of the evidence of the Appellant that he used the money for the purpose he took same from the PW1’s father. There is no cogent evidence from PW2 and PW3 to prove that the Appellant actually gave the money to the people they claimed he gave the money to different from the main purpose it was given for. Since there is no such documentary evidence may be the counsel to the Respondent would have established same through skillful cross examination which he failed and did not.
Among the three ways of establishing criminal liability, it is only by circumstantial evidence that the Respondent can attempt to prove its case against the Appellant. As I had mentioned above, the question is not whether the Appellant collected N3,000,000.00K from PW1’s father or whether it was for the purpose of executing a contract, but whether the Appellant obtained the money under false pretence with intention to defraud by presenting or using a fake purchase order. The Appellant said he jointly executed a contract with the money with his friend who he could not produce. The Respondent’s witness especially PW2 and PW3 said there was no contract. The question is how did the Respondent’s officers know that there was no contract when their investigation did not take them to Danish Refugee Council where the Appellant claimed his friend Ibrahim Mbasuwa got the contract from. This is even on the face of the glaring evidential on record when the Appellant gave the name of the company and the name of his partner with whom he was going to execute the contract. The EFCC did not investigate this, and failed in that respect. This is fundamental. In the circumstances of this, the benefit of doubt should have to be resolved in favour of the Appellant. The Respondent having been unable to show that a fake purchase order was shown to PW1’s father, and that the money received by the Appellant from the PW1 was used for other purpose, the trial Court was wrong to have convicted the Appellant. The burden to establish the guilt of the Appellant is on the Respondent. However, for the Respondent to allege that the Appellant did not produce his friend, Ibrahim Mbasuwa because the Appellant feared his testimony may work against him, is to turn the law upside down by asking the Appellant to prove his innocence.
Under no circumstance in a case of this sort in our accusatorial system of criminal administration and trial is the defendant required to prove his innocence. See Okoh vs State (2014) 2-3 S.C 184. In the recent case of Ibrahim vs State (2022) LPELR 58001 (SC), the Supreme Court on this point held:
“Generally, there is no duty on the accused/Appellant to prove his innocence since under Nigeria system of criminal justice, there is no question of accused proving his innocence before the law Court hence during a trial, an accused may not utter a word as he is not bound to say anything. The duty is on the prosecution to prove the charge against the accused beyond reasonable doubt whether or not the accused says anything. See Igabele v State (2006) 6 NWLR (Pt 975) 100 at 108, Williams v State (1992) 8 NWLR (pt 261) 515 at 516-517, Section 137 Evidence Act, Alonge v Inspector General of Police (1959) NSCC 169; (1959) 4 FSC 203.
The above principle is further enhanced in the provisions of the Constitution of the Federal Republic of Nigeria, which Section 36(5) of the 1999 provides thus:
“Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that noting in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” Per PETER-ODILI, J.S.C.
I resolved issues 2 and 3 in favour of the Appellant.
It is my considered view that the trial Court was wrong to have convicted the Appellant for the offence he was charged as the Respondent was unable to prove beyond reasonable doubt that the Appellant indeed, committed the offence. No Court could even depend on circumstantial evidence to convict a person when such evidence does unequivocally point to him as the person who committed the offence. In the absence of clear evidence that the Appellant made false representation on the existence of a contract by presenting a fake purchase order with the intent to defraud PW1’S father, the conviction cannot stand.
This appeal is therefore allowed and the judgment of Fadawu Umaru J., of the Borno State High Court delivered on 28/2/2022 wherein the Appellant was convicted and sentenced to 7 years imprisonment is set aside.
I cannot in good conscience affirm the judgment. The Appellant, Isaac Harami Ndahi is hereby discharged and acquitted.
JUMMAI HANNATU SANKEY, J.C.A.: I had the benefit of reading in advance the lead judgment delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his Lordship’s reasoning and conclusion.
As has been stated in the leading judgment, the Appellant was arraigned before the lower Court on a one-count charge of obtaining money by false pretences punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. He pleaded not guilty to the charge and the Respondent adduced evidence through three witnesses in proof of the charge. The Appellant also testified in his defence and called one witness. At the close of trial, the lower Court found the Appellant guilty as charged and sentenced him to seven years imprisonment. Dissatisfied, the Appellant filed an appeal to this Court wherein he complained on three grounds.
The ingredients to prove a charge of obtaining money by false pretences punishable under Section 1(3) of the Act (supra) is as set out in the case of Ezeani V FRN (2019) LPELR-46800(SC) per Okoro JSC and Darlington V FRN (2018) 11 NWLR (Pt. 1269) 152 per Eko JSC. The ingredients are –
1. that there was a pretence;
2. that the pretence emanated from the accused person;
3. that the pretence was false;
4. that the accused person knew it was false;
5. that there was an intention to defraud;
6. that the money obtained from the victim was capable of being stolen; and
7. that the accused induced the owner of the money/victim to deliver or transfer money or interest in property to the accused.
Upon examination of the evidence presented to the trial Court in satisfaction or proof of the above ingredients, PW1 was the son of the alleged victim, Engineer Abba Aji Monguno. His evidence was clearly less than satisfactory as he was neither the person who dealt directly with the Appellant in respect of the sum of N3,000,000.00 (Three Million Naira) received nor did he present the alleged fake/false Local Purchase Order based upon which the complainant gave the Appellant the money, at the trial Court. PW2 and PW3 were officers of the EFCC who investigated the allegation made against the Appellant. However, apart from hearing from the complainant and taking the statement of the Appellant, which was not confessional, their investigation did not extend to the Danish Refugee Council to confirm whether or not it had a contract with the Appellant to establish the falsity or otherwise of any representation made to the complainant.
As a consequence of such shoddy investigation, the Respondent failed to establish the criminal intent of the offence alleged, also referred to as the mens rea in the actions of the Appellant when he requested and was given the sum of N3, 000, 000.00 by the nominal complainant. On his part, the Appellant did not deny receiving money from the complainant. His position however was that it was not done under false pretences, but that the money was given as a loan which he requested for to execute a contract. Since the Respondent failed to prove otherwise, it failed to prove the charge against the Appellant. He is therefore entitled to an acquittal.
It is therefore for these reasons, and for the fuller reasons in the lead Judgment, that I also allow the appeal. I abide by the consequential orders made therein.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the judgment of my learned brother, EBIOWEI TOBI, JCA and I am in concord with his decision that the appeal has merit and should be allowed. I allow the appeal and join my brother in setting aside the judgment of the lower Court wherein the Appellant was convicted and sentenced to seven years imprisonment.
The Appellant is discharge and acquitted.
Appearances:
I. H. Ngade, Esq. For Appellant(s)
Mukhtar Ali Ahmed, Esq. Superintendent of PDS, Economic and Financial Crimes Commission (EFCC) For Respondent(s)
