ADEREMI ADEROUNMU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12772(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of March, 2019
CA/L/782C/2018
RATIO
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF OBTAINING BY FALSE PRETENCE
“In Omorede Darlinton vs. FRN ELC (2018) 2415 page 1, the Supreme Court per Eko, JSC in bringing out the ingredients of the offence 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 pretense is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is pretence. V. 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.” PER TOBI EBIOWEI, J.C.A.
CRIMINAL LAW: INGREDIENTS FOR THE OFFENCE OF STEALING
“The ingredients of the offence of stealing is stated clearly in Adejobi & Anor vs. State (2011) 6-7 SC (pt III) 65. The apex Court held: A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely:-
1. The ownership of the thing stolen.
2. That the thing stolen is capable of being stolen.
3. The fraudulent taking or conversion.
Oshinye vs. Commissioner of Police (1960)5 SC Pg. 105, Chianugo vs. State (2002)2 NWLR (Pt.750) pg. 325 See also Ayeni vs. State (2016) LPELR- 40105; Oyebanji vs. State (2015) LPELR- 24751 (SC).
All the facts in this case satisfy the condition or the ingredients of the offence of stealing by conversion.” PER TOBI EBIOWEI, J.C.A.
OFFENCE: PROVE BEYOND REASONABLE DOUBT
“It is a trite position of the law that to secure conviction, the prosecution must not only connect the Defendant to the offence but in doing so the standard of proof required is; proof beyond reasonable doubt. This means the Respondent must prove all the ingredients of the offence for which the Defendant is charged with. The standard is beyond reasonable doubt. The law is, when there is any doubt in the course of proving any ingredient of the offence; the doubt will be resolved in favour of the Defendant, as that will mean that the Respondent has not proved his case beyond reasonable doubt. See Vivan Odogwu vs. The State NSCQR Vol. 55 2013 page 309; Chukwuka Ogodu vs. The State NSCQR Vol. 48 2011 page 377; Jimoh vs. The State (2018) LPELR- 44074(CA).” PER TOBI EBIOWEI, J.C.A.
JUSTICES:
TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
ADEREMI ADEROUNMU – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
TOBI EBIOWEI, J.C.A.(Delivering the Leading Judgment):
The Appellant is the Defendant in the lower Court in Charge NO. ID/261C/2018. He was charged in a six count charge along with Michael Nnodu. (who was described to be at large) for conspiracy, obtaining by false pretence and stealing. Counts 1 & 5 are for conspiracy to obtain by false pretence and stealing, counts 2 & 3 are for the offence of obtaining by false pretence while counts 4 & 5 are for stealing. In the judgment found in pages 226- 241 of the records, the lower Court found the Appellant guilty on counts 2, 3, 5 and 6. The Appellant was found not guilty for the offences of conspiracy but guilty for the offences of stealing and obtaining by false pretence. He was sentenced to 7 years for counts 2, 3 & 4 and 5 years for counts 5 & 6. The sentences are to run concurrently with effect from 15/1/18. This means the Appellant is in prison at this material time.
The Appellant naturally dissatisfied with the judgment appealed to this Court. The notice of appeal filed on 11/5/18 found in pages 242-246 contains 7 grounds of appeal. The Appellant in the brief of argument filed on 8/8/18 deemed on 4/10/18 raised 3 issues for determination. Interestingly, the Respondent in its brief filed on 24/8/18 adopted the same 3 issues for determination. The issues for determination raised by both brief are;-
1. Whether the burden of proof on the prosecution to prove its case against the Defendant shift.
2. Whether the prosecution proved its case beyond reasonable doubt in convicting the Defendant for the offence of stealing and obtaining by false pretence.
3. Whether the Defendant is not liable to be discharged and acquitted following the discharge of the co-accused with which he was charged when the evidence relied upon by the trial Court was same and similar.
I will look at the submission of counsel. The Appellants counsel is T. S. Awhana Esq., while Respondents brief was settled by A.M. Ocholi Esq., Learned Counsel for the Appellant stated the generally legally acceptable trite principle of law that the burden in a criminal matter is on the prosecution, in this instance, the Respondent. He referred to Abirifon vs. State (2013) 13 NWLR (Pt. 1372) 619; Njoku vs. State (2013) 9 NWLR (Pt. 1360) 417; Aikhadueki vs. State (2014) 15 NWLR (Pt. 1431) 530; Ikaria vs. State (2014) 1 NWLR (Pt. 1389) 639; Egbirika vs. State (2014) 4 NWLR (Pt. 1398) 558 and Sections 135(1) and 138 of the Evidence Act. On this point counsel submitted that the Defendant has no duty to prove his innocence. He urged counsel to resolve that issue in his favour.
On issue 2, learned counsel after stating the ingredients of the offences of obtaining by false pretence and stealing submitted that the Respondent did not prove those ingredients beyond reasonable doubt. Counsel referred to Onwudiwe vs. FRN (2006) ALL FWLR (Pt. 319) 774; Odiawa vs. FRN (2008) ALL FWLR (Pt. 439) 436; Osoba vs. The Queen (1961) 1 SCNLR 6; FRN vs. Amah (2017) 3 NWLR (Pt. 1551) 139.
On issue 3, it is counsel submission that since the co-accused was discharged, his client the Appellant must also be discharged. He cited Aikhadueki vs. State (supra); Emmanuel Ebri vs. State (2004) 11 NWLR (pt. 885) 589; Alo vs. State (2015) 9 NWLR (Pt. 1464) 238. It is counsel final submission that the appeal be allowed.
The Respondent addresses the issues one after the other.
On issue 1, while conceding that the burden is on the prosecution to prove the ingredients of the offence, counsel submitted that evidential burden shifts between the parties as the onus is on the party that alleges the existence of a fact. He referred to State vs. Bakare (1987) 1 NWLR (Pt. 52) 579; Nwankwo vs. FRN (2003) 4 NWLR (Pt. 809) 1; Onagoruwa vs. State (1993) 7 NWLR (Pt. 303) 49; Egbirika vs. State (supra); Tatu vs. Estate of Late Ahlaji Adamu (2015) 13 NWLR (Pt. 1476; John Holt Plc vs. Allen (2014) 17 NWLR (pt 1437) 443; C& C Const. Co Ltd vs. Okhai (2003)851; APC vs. INEC (2015) 8 NWLR (Pt. 1462)586; Torri vs. National Park Service of Nigeria (2011) 13 NWLR (Pt. 1264); Odom vs. PDP (2015) 6 NWLR (Pt. 1456)527. The duty is on the Appellant to show that he paid the money to the said Mike Nnodu among other facts he alleged.
On issue 2, counsel also itemized the ingredients of the offences of obtaining by false pretence and stealing. He however submitted that the Respondent has proved all the ingredients of the offence and therefore the lower Court was in order to have convicted the Appellant. He referred to Reg vs. Aspinall (1) 2 Q.B.D. 48; Alake vs. State (1991) 7 NWLR (pt 205) 592; Nwankwo vs. FRN (2003) 4 NWLR (Pt. 809) 1; Nnamdi Azikiwe University vs. Nwafor (1999) 1 NWLR (pt 585) 116; FRN vs. Ikpe (2005) 2 QCCR 155 @ 196.
Learned Counsel for the Respondent in addressing the third issue submitted that the said Mike Nnodu though charged along with the Appellant was not arraigned before the Court and he cannot therefore be properly called a co-accused of the Appellant. In the circumstance, it is counsel submission that the law stated in the cases referred to by Appellants counsel is not applicable in the instant case. He referred to Nwachukwu vs. State (2017) LPELR 42852(CA); Alake vs. State (supra); Idiok vs. State (2008) ALL FWLR (pt 421) 798; Ajuluchukwu vs. State (2014) 13 NWLR (pt 1425) 641. He finally urges Court not to interfere with the finding of fact by the lower Court and urged Court to dismiss the appeal.
The appeal before this Court is in relation to the counts upon which the Appellant was convicted. For avoidance of doubt, the Appellant was convicted for the counts relating to obtaining by false pretence and stealing but he was discharged and acquitted for the offences of conspiracy.
Though in the judgment the Appellant was sentenced for count 4 which he was discharged for, one can excuse that under the slip rule. See Okafor vs. Swan Ltd (2014) LPELR -24047 (CA); Chikere & Ors vs. Okegbe & Ors (2000) 7 SC (Pt. 1) 106; Osigwe vs. PSPLS (2009) NSCQR Vol. 307 2009 page 841. The Appellant is therefore effectively challenging his conviction on counts 2,3,5 and 6. Since there is no cross- appeal, I will not deal with whether the lower Court was right in discharging and acquitting the Appellant on counts 1 & 4 dealing with conspiracy.
I will in this judgment also adopt the issues for determination as raised by the Appellants counsel. They are clear and simple enough without any complications. I will also address them one after the other. For a proper flow of the judgment, let me handle issue 3 first which in my opinion is more simple. This issue is on whether the lower Court should have discharged the Appellant because the co-accused, Mr. Mike Nnodu was not convicted. It is true, the said Mr. Mike Nnodu was not convicted, it is also true that Mike Nnodu was not discharged and acquitted for any of the counts. This is because; he was not arraigned before the Court. Even in the charge, he is described as being at large. This means he did not appear before the Court and there is no way the lower Court could have discharge a person who did not even take plea. I agree with the entire submission of Respondents counsel in this regard. The Appellants counsel argument is totally misplaced. Without doubt I resolve this issue in favour of the Respondent.
I will not look at issue 1. To determine on who lies the burden of prove in the matter before the lower Court, I will take a roll call on the case law in this respect. The position of the law is trite. It is that in criminal cases, the burden is entirely on the prosecution to prove the guilt of the Defendant. This burden does not shift if the Respondent must secure conviction. This is because, there is the presumption of innocence in favour of the Defendant as he has no obligation in law to prove his innocence. The duty is squarely on the shoulder of the Respondent to prove all the ingredients of the office to secure conviction. This burden does not shift at all. In Ankpegher vs. State (2018) LPELR- 43906 (SC), the apex Court per Kekere-Ekun, JSC at pages 24-25 held:
There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington vs. D.P.P (1935) AC 462.
Similarly in Ugboji vs. State (2017) LPELR-43427 (SC), Sanusi, JSC at page 28 held:
The law is well settled, that the prosecution always has the burden to prove the commission of an offence (See Section 138 of the Evidence Act 2011 (as amended). This tallies with time honored principle of law that who asserts must prove. In criminal cases the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of ANI v STATE (2000) 6 SCNJ 98 at 107.
One more case will not harm. In State vs. Ajayi (2016) LPELR-40663 (SC), Okoro, JSC at page 50 held:
It is trite that in criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See; Yongo vs. COP (1992) 4 SCNJ 113, (1992) LPELR – 3528 (SC); Uche Williams vs. The State (1992)10 SCNJ 74. It must be noted that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty and the burden of proof is always on the prosecution. See Okputuobi ode & Ors vs. The State (1970) ALL NLR 36, (1970) LPELR – 2524 (SC).
The point must be made however that while the burden to prove the guilt of the Defendant does not shift, there are instance in a criminal case when burden of proof shift. This is when, the Defendant makes an assertion over a fact in a criminal matter, the burden is on him to prove that fact.
This is because the law is trite and it is that whoever alleges a fact is under obligation in law to prove the fact he alleges. See; Ex- Captain Charles C. Ekeagwu vs. The Nigerian Army & Anor NSCQR Vol. 42 2010 pg. 1238; Michael Eyo vs. Emeka Collins Onuoha NSCQR 210; Eze vs. State (1976) 1 SC (reprint) 69.
In Omorede Darlinton vs. FRN ELC (2018) 2415 page 1, the apex Court held:
There is no doubt, and it is trite as well, that the Appellant has the burden of establishing his assertions. He has a duty to establish the assertions made in the complaints either in his grounds of appeal or the issues formulated from the grounds of appeal for the determination of his appeal. Section 131(1) of the Evidence Act, 2011 is quite categorical on this: whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
At this stage a brief summary of the facts in the matter will not be out of place. The PW1 engaged the Appellant to move his goods by air from Lagos to Morovia. The agreed sum for the transaction was $22,800. The Appellant confirm that he has the competence to carry the transaction through. The transaction was to be completed within 48 hours. The sum of $22,800 was paid by the PW1, who is now the victim, to the Appellant. This was receipted for. The transaction was not successfully executed and the PW1 sought for a refund. This was not forthcoming as only $1,000 was refunded. The Appellant claimed that he had paid $18,000 to Mr. Mike Nnodu, who the person is charged along with the Appellant, who is at large. The said Mike Nnodu is the person in Morovia that the Appellant spoke with to promote the aircraft. The Appellant said he used $3,000 for preparation. The Appellant did not deny receiving the sum of $22,800 from PW1 for the purpose of airlifting his goods from Lagos to Morovia. It is not in dispute that the Appellant did not deliver on the contract. The Appellant said he paid $18,000 to the said Mike Nnodu. The Appellant counsel submitted that the burden is on the Respondent to prove or show that Mike Nnodu does not exist and that the money was not paid to the said Mike Nnodu to establish the guilt of the Appellant. This submission does not represent the position of the law.
I had mentioned above that apart from the burden upon the Respondent as prosecution to establish the guilt of the Appellant, as Defendant, in the lower Court, the burden on allegations or assertions made by a person is upon the person making the assertion. The Appellant was given $22,800. He was the one who said that Mike Nnodu was to get the Aircraft from Morovia to Lagos to pick up the goods. He is the one who knows the said Mike. He is also the one who said he gave $18,000 to the said Mike Nnodu. He is the one making all these assertions and therefore the law places the burden on him to prove these facts that he alleged or asserts. Sounding more specific and relevant, the burden is on the Appellant to show that he has a business partner whom he discussed the issue with by name Mike Nnodu. It is his further duty to show that he did not embezzle the money but rather that he gave the $18,000 to the said Mike Nnodu in furtherance of the contract. The burden here is evidential burden and not the burden to prove the guilt of the Defendant. The argument that, it is the Respondent that has the duty to prove that Mike Nnodu does not exist or that the $18,000 was not paid to him is misconceived. Indeed, I agree with the finding of the lower Court in page 238 of the record where the lower Court held:
This is a case in which the evidential burden of proof shifted from the prosecution to the Defendant. It is for the Defendant to show that the money collected from the victim was paid to Mike Nnodu. It is for the Defendant to show that there is in existence a business partner who is known as Mike Nnodu. It is for the Defendant to prove that $18,000 was paid to Mike Nnodu since he admitted collecting the money.
I resolve issue 1 in favour of the Respondent as at appropriate times or stage of the proceedings the burden of prove can shift. In the instance the existence of the said Mike Nnodu and that $18,000 was paid to him by the Appellant is a fact which the Appellant must prove. This a burden on the Appellant. This burden the Appellant was unable to discharge.
I will now consider the main issue which is issue 2, which is whether the Respondent in the lower Court has proved the guilt of the Appellant beyond reasonable doubt. It is a trite position of the law that to secure conviction, the prosecution must not only connect the Defendant to the offence but in doing so the standard of proof required is; proof beyond reasonable doubt. This means the Respondent must prove all the ingredients of the offence for which the Defendant is charged with. The standard is beyond reasonable doubt. The law is, when there is any doubt in the course of proving any ingredient of the offence; the doubt will be resolved in favour of the Defendant, as that will mean that the Respondent has not proved his case beyond reasonable doubt. See Vivan Odogwu vs. The State NSCQR Vol. 55 2013 page 309; Chukwuka Ogodu vs. The State NSCQR Vol. 48 2011 page 377; Jimoh vs. The State (2018) LPELR- 44074(CA).
The Respondent must have proved beyond reasonable doubt that the Appellant obtained by false pretence from the PW1 and indeed stole the sums of money referred to in the charge. The apex Court in a cloud of cases established beyond any dispute what will amount to proof beyond reasonable doubt. This does not mean beyond all doubt or shadow of doubt. There cannot probably be any proof that can be beyond all doubt or shadow of doubt. For as long as we are on this side of life, it will be expecting and demanding too much to prove a criminal case beyond any shadow of doubt. There will be some doubts here and there but the doubt to be relevant, as to affect the case of the prosecution, must relate to any of the ingredients of the offence. That is what really counts. Anything apart from that will not be a relevant doubt.
I will take a few cases on this point. In Alabi vs. State (1993) 7 NWLR (pt. 307) 511, the Supreme Court held:
Before it can rightly be said that the prosecution has proved its case beyond reasonable doubt therefore, every ingredient of the offence charged, which in the instant case is robbery must be established. In other words, if one element is left out then there is no proof beyond reasonable doubt.
The Supreme Court also in Ikaria vs. State (2014) 1 NWLR (pt 1389) 639 affirm the above position per Ogunbiyi, JSC thus:
By the use of the phrase “Proof beyond reasonable doubt,” it presupposes that all the ingredients establishing the offences must be proved to such a degree that there would be no question or stone left unturned as to the certainty that it is the accused/appellant and none other than must have committed the act complained of. In other words, all fingers would irrestibly point towards the direction of the accused. The culpability of the appellant should not be in any shadow of doubt but a clear focus of attention. For such proof, to sustain, it must earn the credibility of witnesses’ testimonies who must give a first-hand account of facts which are within their personal knowledge. Any other source of information would be rated a hearsay evidence and therefore not admissible.
The burden placed on the prosecution to prove the charge against the accused/appellant never shifts and failure on the part of the prosecution to establish even one of the ingredients of the offence will lead to the discharge of the accused person. See; the case of Nweke vs. State (2001)4 NWLR (Pt. 704) 588; Tanko vs. State (2003) 16 NWLR (Pt. 114) 597 @ 636 and Aruma vs. State (1990) 66 NWLR (Pt. 153) 125.
It is further relevant to also restate that the purport of Section 138 of the Evidence Act is to affirm the absence of duty on the accused person to establish his innocence in a criminal charge proffered against him.
That duty squarely lies on the prosecution to establish the guilt of the accused beyond reasonable doubt. In the case of KIM v. State (1992) 4 NWLR (Pt.233) 17 for instance Nnaemeka Agu JSC (of blessed memory) in his summation said:-
“The prosecution may still fail if the accused person does not utter a word in his defence, if the prosecution fails to prove its case beyond reasonable doubt against the accused.” See; also the case of Woolmington vs. DPP (1935) AC 462 and Igabele vs. State (2006) 6 NWLR (Pt. 975) 100.
Similarly in Aiguoreghian & Anor vs. State (2004) 1 SC (pt 1) 65, the apex Court held:
It is a cardinal requirement of our criminal justice system that the prosecution must prove its case beyond all reasonable doubt: see Muka vs. The State (1976)9-10 SC 305; Anekwe vs. The State (1976)8-10 SC 255. This means that every ingredient of an offence must be established to that standard of proof so as to leave no reasonable doubt of the guilt of an accused.
I can go on and on as the judicial authorities from the apex Court are numerous, but I will stop here as the point has been made.
However, just one more case which in my opinion drives home the exact point will not be out of place. It is the case ofAdekoya vs. State (2017) LPELR 41564 (SC) per Peter-Odili, JSC at pages 18-19 held:
What is expected of the prosecution is proof beyond reasonable doubt and not beyond a shadow or an iota of doubt. I call in aid the case of; Nwaturuocha vs. State (2011) 2 – 3 SC (Pt. 1) 111524, the Supreme Court held as follows:
“I shall again state it that Proof beyond reasonable doubt as evolved by Lord Sankey. L. C. in Woolmington vs. DPP (1935) Ac 485 is not proof to the hilt as stated by Denning. J. (as he then was), in Miller v Minister of Pensions (1947) 3 ALL ER 373. It is not proof beyond all iota of doubt as stated by Uwais CJN in Nasiru vs. The State (1999) 2 NWLR (Pt. 589) 87at 98.
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 this matter, the charge is proved beyond reasonable doubt. See; Alabi vs. The State (1993)7 NWLR (Pt. 307) 511 at 523. Proof beyond reasonable doubt should not be stretched beyond reasonable limit, otherwise it will cleave.”
Having established the above, the question now is, what are the ingredients of the offences which has to be proved beyond reasonable doubt? Counts 2 & 3 are for the offence of obtaining by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act No. 11, 2006. Both counsels have ably brought out the ingredients of the offence in their various briefs which they adopted. For completeness, I will make reference to a few cases on this point.
In Omorede Darlinton vs. FRN ELC (2018) 2415 page 1, the Supreme Court per Eko, JSC in bringing out the ingredients of the offence 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 pretense is made by way of representation.
II. From the accused person.
III. To the person defrauded.
IV. The representation is pretence.
V. 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.
In Osareren vs. FRN (2018) LPELR 43839 (SC), the Supreme Court defining obtaining by false pretense under the Act the Appellant is charged for said per Peter-Odili, JSC at page 46 held:
In respect to the offence of obtaining money under false pretence in counts three to seven against the appellant, I shall first cite the relevant statutory provision thus:-
Section 1(1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, states thus:
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intend to defraud…
(a) Obtain from any person, in Nigeria or in any other country, for himself or any other person… Any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under this Act.”
The ingredients of the offence under the Act and under the Criminal code are not fundamentally different. The apex Court in Onwudiwe vs. FRN (2006) 4 SC (Pt. II) 70 defining the offence under the Criminal Code held:
“Let me deal with the offence as provided for in Section 419 of the Criminal Code Law. In order to succeed, the prosecution must prove (1), that there is a pretense; (2) that the pretense 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. The offence could be committed either by oral communication or in writing or even by conduct of the accused person. An honest belief in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretense.”
The ingredients must be proved conjunctively and not disjunctively. In other words, the ingredients are mutually inclusive and not mutually exclusive. See; Bello vs. FRN (2018) LPELR- 43688. The Appellant to be liable for counts 2 & 3, there must be evidence that the Appellant made a representation to the PW1 to have the capacity to airlift his goods from Lagos to Monrovia which from the basis for the PW1 believing him and subsequently parted with the money. The Appellant while making the representation knows he does not have such capacity or link to carry out the represented facts. It must be proved that the intention of the Appellant is to defraud the PW1. Most of the ingredients have been proved as there is no dispute from the record of appeal that the Appellant made a representation to PW1 that he can move his goods by air from Lagos to Morovia for a fee of $22,800. There is evidence that the money was paid to the Appellant. There is evidence that the Appellant did not deliver.
The main issue here is whether the Appellant intentionally did that to defraud the PW1. This is where the real challenge in this case is. Putting it in legal term, what this Court need to consider is whether the Respondent proved the mense rea of the offence. The Respondent says the Appellant obtained his money by false pretence, the Appellant is saying, it is a business transaction that went sour. They both cannot be right as the legal consequences are different. If the Appellant is right, then they went to the wrong Court and therefore the decision of the lower Court will be set aside. This is because; it will be treated as a civil wrong and not a criminal offence. If the Respondent is right, then this appeal will fail. Who is right between them?
The lower Court that had the opportunity of taking the evidence seems to agree with the Respondent hence the Appellant was convicted and sentenced. The Court held at page 239-240 thus:
All these documents were served on the Defendant in the proof of evidence and he had adequate notice to rebut these allegations but he did not provide any proof to this Court that he paid $18,000 to one Mike Nnodu. The Court is satisfied that there was a false pretence which emanated from the Defendant. The fact shows that the Defendant had an intention to defraud as he was unable to satisfy the Court that he transferred the sum of $18,000 to anybody and if indeed he transferred the money into which account and into which Bank was the money transferred.
The intention to defraud can be deduced from the action of the Appellant as a person is said to intend the naturally consequence of his act. A situation where money is given to the Appellant based on his representation which turns out to be false, there is a presumption of fraudulent intention which the Appellant should dislodge. In Oluwasheun vs. FRN (2016) LPELR-40768 (CA), this Court held:
It is thus settled law that where a charge is laid against an accused person alleging an intent to defraud, what the prosecution should prove is the intent to defraud by taking into consideration the totality of the circumstances in respect of the particular case. If it is shown that one had obtained money from another by a representation which later facts reveal, that it was made to deprive that someone of his money, illegally then it means that from the word go he had the intent to defraud. A conviction of such a person on such concrete evidence as adduced by the Respondent, particularly through PW3-PW6, showing clearly an intent to defraud them is correct and proper and will therefore, not be disturbed by this Court. See Daniel Okweji v. FRN (2003) LPELR 12387 (CA) per Pats Achonolu, JCA (as he then was later JSC) .
This Court in Atobatele vs. FRN (2018) LPELR- 44792 (CA) per Ogakwu, JCA held:
The Appellant having made the false representation received advance payment and did nothing to import the vehicle. Since the Appellant had the intention to defraud, the Appellant lied to the PW1 that he was expecting the vehicle at the Port for clearance. The action and conduct of the Appellant was the flimflam by which the Appellant hornswoggled and fleeced the PW1 of the total sum of N2.7million, the money being a thing capable of being stolen.
In the old English case of R vs. JOHN JAMES SULLIVAN 3 OCR APP R 132 at 134 which was quoted with approval by Obaseki, JSC in IJUAKA vs. COMMISSIONER OF POLICE (1976) LPELR (1466) 1 at 11,
Humphreys, J. dealing with what has to be proved in order to establish the intent to defraud stated as follows:
In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to the prove to the satisfaction of the jury (Court) that there was some mis-statement which in law amounts to a pretence, that is, a mis-statement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money; that the proceeding on the part of the accused was fraudulent. That is the only meaning to apply to the words with intent to defraud.
As manifest from the evidence on record, which as found and accepted by the lower Court, it was the representation that the Appellant would import the Lexus Jeep for the PW1 that made the PW1 part with his money. The Appellant having received the money did not utilise the money for the purpose for which the representation which induced the PW1 to part with the money was made. The evidence on record shows that the Appellant had financial problems, consequent upon which having made the false representation he inveigled the PW1 and made him to part with his money.
Apparently, intention is a state of mind which is not capable of direct proof. It is commonly said, not even the devil knows the intention of a man. The intention of a man cannot be seen by facial expression. It is therefore by inference that an intention can be proved. This much this Court held in Confido Consult Services Ltd vs. FRN (2018) LPELR-43676 (CA) per Nimpar, JCA at page 29 thus:
As to the contention on whether or not intent to defraud was made out, intent is a state of mind which can seldom be proved by direct evidence, but will ordinarily be inferred from surrounding circumstances. Such proof can only be made possible by certain acts, circumstances and inferences deducible from the facts of the case. Clearly, by representing itself as a capital market operator without due license, despite knowing that it had no license to operate, the Appellant deceitfully made false representations to the complainant in a bid to obtain money from him and the Lower Court was in order to have found as such.
The Appellant by his conduct has shown that the lower Court was right in coming to the conclusion that there was intention to defraud. He collected the money, he could not deliver. The evidence required of the Appellant which would have assisted his case he expected the Respondent to give for him. It is dangerous strategy for the Appellant to expect the Respondent to show that Mike Nnodu does not exist and that the money was not paid over to him. In fact, all the evidence and submission to the effect that they have been doing business together or that the prosecution did not follow up on the Ecobank request did not in any way reduce the responsibility on the Appellant to discharge the burden on him. In the light of the evidence before the lower Court as shown in the record of appeal, I cannot see my way clear to deviate from the finding of the lower Court as in page 239 of the records. The prosecution in my view has proved the ingredients of the offence of obtaining by false pretense.
Counts 5 & 6 deal with the offence of stealing. The ingredients of the offence of stealing is stated clearly in Adejobi & Anor vs. State (2011) 6-7 SC (pt III) 65. The apex Court held:
A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely:-
1. The ownership of the thing stolen.
2. That the thing stolen is capable of being stolen.
3. The fraudulent taking or conversion.
Oshinye vs. Commissioner of Police (1960)5 SC Pg. 105, Chianugo vs. State (2002)2 NWLR (Pt.750) pg. 325
See also Ayeni vs. State (2016) LPELR- 40105; Oyebanji vs. State (2015) LPELR- 24751 (SC).
All the facts in this case satisfy the condition or the ingredients of the offence of stealing by conversion.
The Appellant acknowledge receipt of the money from the PW1. The circumstances as disclosed in the record shows some fraudulent act on the part of the Appellant. I will not go into all the facts I had mentioned above in agreeing with the lower Court that the action of the Appellant shows some fraudulent intention.
The conviction is obviously not out of place but for a tiny issue. This is whether, it is appropriate to convict the same person in the same proceeding for the offences of obtaining by false pretence and for stealing. The law is not against such a connection only on the premise that the defendant sentence will run concurrently. The lower Court found the Appellant guilty for obtaining by false pretence and stealing. The Appellant sentences are to run concurrently. The lower Court has complied with the law.
This appeal has no merit and it is hereby dismissed. The judgment of the lower Court delivered on 15/1/18 by Ogunsanya J is hereby upheld and affirmed.
TIJJANI ABUBAKAR, J.C.A.: I read in draft the lead Judgment rendered in this appeal by my Lord and brother EBIOWEI TOBI, JCA. I am in agreement with the reasoning and conclusion and adopt the Judgment as my own. I have noting extra to add.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I read before now the leading judgment of my learned brother, Ebiowei TObi. JCA which has just been delivered.
Having also read the Records of Appeal and the briefs of argument filed and exchanged by the parties. I find that the reasoning and conclusion in the leading judgment on the issues distilled for determination are in accord with my views.
Accordingly, it is for the said reasons that I equally arrive at the conclusion that the appeal is devoid of merit. I therefore join in dismissing the appeal. I abide by the consequential orders made in the leading judgment.
Appearances:
T. S. AWHANA Esq., with him F. ESONWUNE Esq. For Appellant(s)
A. M. OCHOLI For Respondent(s)
