ATULUKU & ANOR v. C.O.P (2022)

ATULUKU & ANOR v. C.O.P

(2022)LCN/16288(CA)

In the Court of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 25, 2022

CA/A/649C/2018

Before Our Lordships:

Mohammed Mustapha Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Abdul-Azeez Waziri Justice of the Court of Appeal

Between

1. EMMANUEL ATULUKU 2. NATHANIEL JANGBADI APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE INGREDIENTS OF THE OFFENCE OF FALSE PRETENSES

Apart from the foregoing, in Atobatele v FRN 2018 LPELR-44792 (CA), this Court held that to succeed in a charge of false pretenses the ingredients are:-

1. That there was a pretence.

THE POSITION OF LAW WHERE THE EXTRA-JUDICIAL STATEMENT OF A WITNESS CONTRADITCS HIS LATER EVIDENCE ON OATH

From the foregoing, it is very clear that the evidence of the PW1 is clearly very self-contradictory on every material fact of this case. His extra-judicial statement to the police is also contradictory to his evidence under oath. Furthermore, under cross-examination his evidence was further contradicted. There is no doubt that the law is that where the extra-judicial statement of a witness contradicts his later evidence on oath, both evidence must be rejected as unreliable and where it casts doubt on the guilt of the accused, he must be acquitted. See Onuchukwu v. The State (1998) 4 SCNJ 36, Dogo & Ors v. The State (2001) 5 NSCLR 307 at 325 and Onubogu v. The State (1974) 9 SC 1. This issue is therefore resolved against the prosecution in favour of the appellants. PER AMADI, J.C.A.

DEFINITION OF THE OFFENCE OF CONSPIRACY

The offence of conspiracy is defined as the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means per Okoro JSC in Ndozie v State (2016) 8 NWLR (Pt. 1513) 3 para E- F. See also Njovens v. State (1973) 5 SC 17. The underlining factor in conspiracy is the meeting of the mind of the conspirators. PER AMADI, J.C.A.

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Niger State, Minna in suit no. NSHC/MN/98C/2014; Coram: Hon. Justice Maria Sanda Zukogi, delivered on 29th day of March, 2018.

The brief facts of this case which gave rise to this appeal is that the nominal complainant (PW1) residing in Minna went to Lagos to purchase rice where he was introduced to the 1st Appellant, a bank branch manager of Ecobank in his office at Ikotun branch of the bank. It was his friend, one Alhaji Abu in company with the 1st Appellant’s existing customer one Prince Amadi that did the introduction. He was shown stallion rice, but because the price was not competitive, he could not buy.

However, he remained in contact with the 1st Appellant who promised to help him in sourcing rice at a competitive price for him to buy. That led to the 1st Appellant being introduced to the 2nd Appellant – Nathaniel Jangbadi, through his church member one Mary Agboizeke. The said Nathaniel Jangbadi was also the branch manager of First Bank Plc, Festac branch in Lagos. The 2nd Appellant (Nathaniel Jangbadi) claimed that he had a customer who could supply the rice at a competitive price that is; Divine Global Concept Ltd owned by one Mr. Lucky Balogun.

Consequently, the complainant (PW1) paid the sum of N11,160,000.00 (Eleven Million, One Hundred and Sixty Thousand Naira) into the account of the said Divine Global Concept Ltd, for three (3) trailer loads of rice to be supplied in three (3) days from the date of payment. The complainant also said that he paid additional N550,000 cash to the said Mr. Lucky Balogun as cost for transportation from Lagos to Minna.

After the PW1 failed to see the trailer loads of rice after three days, he complained to the 1st Appellant who directed him to the 2nd Appellant (Nathaniel Jangbadi). The 2nd Appellant gave him (PW1) the sum of N1,000,000 (One Million Naira only) to ameliorate his sufferings. At this point, the PW1 suspected he has been scammed, the 1st Appellant invited the police (Special Fraud Unit) Panti Police Station into the matter, in the process every other person that had one thing or the other to do in the transaction that gave rise to this case was arrested including Mr. Lucky Balogun. But the complainant withdrew from the investigation there and initiated another report at Minna Niger State following which another police investigation was conducted. The 1st Appellant alongside 2nd Appellant were arrested from Lagos, charged first to a Magistrate Court, then to the Federal High Court Minna and the charge was transferred to the State High Court of Minna for an offence contrary to Section 8(a), (b) and (c) punishable under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act Cap A6 LFN 2004 and a second offence punishable under Section 1(3) of the Advanced Fee Fraud and Fraud Related Offences Act Cap A6 LFN 2004.

After trial, they were found guilty and sentenced as follows:
For the 1st count of the offence charged, they were sentenced to two years prison term without option of fine. On the 2nd charge, they were sentenced to three years prison term without option of fine. The sentences were to run consecutively.

Aggrieved by their conviction and sentencing, they filed a Notice of Appeal wherein they raised five (5) grounds of Appeal which are as follows:
GROUND 1:
The learned trial Judge erred in law when he held, “PW1 lives in Minna, he is the victim. He is a businessman and was in Minna when the 1st accused person called him on phone and requested him to send the sum of eleven million, one hundred and sixty thousand naira (N11,160,000.00) to enable him send him 3 trailer loads of rice and he gave him his account details to send the money through i.e. First Bank of Nigeria, Account Name: Divine Concept Compact Global Ltd., Account No. 3017292835”.
GROUND 2:
The learned trial Judge erred in law and failed to properly assess and evaluate the evidence of the witnesses adduced and this failure occasioned a miscarriage of justice to the Appellant.
GROUND 3:
The learned trial Judge erred in law when he held, “on the whole based therefore on the evidence before the Court, the prosecution has established its case beyond reasonable doubt as required in criminal cases and the accused persons will consequently be convicted accordingly.”
GROUND 4:
The High Court of Niger State lacks jurisdiction to entertain this action.
GROUND 5:
The judgment is against the weight of evidence.

The reliefs sought from this Court are as follows:
1. An order allowing the appeal.
2. An order setting aside the judgment of the High Court of Niger state sitting at Minna dated the 29th day of March, 2018 convicting the Appellants.
3. An order discharging and acquitting the Appellants.

This appeal was heard on 6/12/2021. The learned counsel for the Appellants Tochukwu Nwazota Esq., in his Amended Brief of Argument filed on 22-3-2012 and deemed properly filed and served on 1-7-2021, raised three (3) issues for determination as follows:
1. Whether the contradictory statement of PW1 in the proof of evidence and evidence during trial support the finding of the lower Court. (Grounds 1, 3 and 4).
2. Whether the evidence adduced by prosecution proved the ingredients of the offence charged. (Ground 3 and 2).
3. Whether the judgment of the lower Court considered the evidence adduced by the Appellants during trial. (Ground 1).

In respect of issue 1, counsel submitted that in the recorded statement by Sgt. Bright Aboiralor dated 16/3/12, the PW1 went to Lagos to source for rice and there at Lagos, he was introduced to the 1st Appellant at his office in Oceanic Bank Plc (Now Eco Bank), that when they could not get rice at competitive price, PW1 went back to Minna and upon conclusion of agreement to source for the product, 1st Appellant called PW1 and he came back to Lagos. That the 1st Appellant introduced PW1 to 2nd Appellant and they subsequently transacted. That there in Lagos, in 2nd Appellant’s office at First Bank Plc, Festac Branch Lagos, PW 1 transferred the sum of N11,160,000.00 (Eleven Million, One Hundred and Sixty Thousand Naira) to the account of one Divine Global Concept Ltd. Learned counsel further submitted that this statement of PW1 was in line with the statements of the 1st Appellant dated 28/3/12 and 29/3/12 respectively as contained in the proof of evidence.

Continuing, Counsel sought to show the contradictory statements made by the PW1 in his evidence in chief. On one hand, PW1 said that he withdrew N11,160,000.00 and went to First Bank branch, Minna to pay in the money and it did not go through, and he remembered that he had an account with the same bank, and transferred the money into that account. PW1 continued further in evidence to say that Emmanuel (1st Appellant) and his friend, Nathaniel Jangbadi (2nd Appellant), a manager at First Bank branch in Lagos now transferred the money from his account to the account name they sent to him. This contradicted his statement in the proof of evidence (as seen in page 17, 127, and 128 of the record of appeal) where PW1 stated that it was the Business Manager, Nathaniel Jangbadi (2nd Appellant) who filed the transfer slip and made him to sign it.

Counsel submitted that based on the foregoing, a Court cannot rely on a contradictory statement of a party in a criminal matter and as such, this contradictory statement by the PW1 cannot support the finding of the learned trial Judge. Counsel argued that PW1 in evidence for the prosecution was lying to the Court and during cross-examination, PW1 said he does not remember if he signed any document transferring money but was shown the transaction slip he signed at First Bank Festac Branch, Lagos. Counsel also argued that the Special Fraud Unit of the Police at Lagos arrested and investigated all persons named in the transaction including the Appellants and Mr. Lucky Balogun, the Managing Director of Divine Global Concepts Ltd who received the N11,160,000.00 (Eleven Million, One Hundred and Sixty Thousand Naira).

Counsel submitted that under cross-examination at the trial Court, the PW2 admitted that the 1st Appellant assisted him, the PW1 to complain to the Special Fraud Unit through a lawyer, and that PW1 also admitted that the Special Fraud Unit in Lagos invited him where he made a statement, and subsequently wrote to the Special Fraud Unit removing himself from the investigations. He added that there is an investigation on record which cleared the 1st Appellant and the prosecution did not present any evidence to disprove this fact. He cited the case of State v. Ajie (2000) FWLR (Pt. 16) 2831, 2844 – 2845. Counsel argued that a duty incumbent on the prosecution is to place before the Court all evidence at their disposal received during investigation whether it is in their interest or not, and to see that justice is done. He therefore submitted as a result that the prosecution in this matter failed and willfully refused to give evidence and call witnesses of the investigation carried out in Lagos. He cited the case of Odofin-Bello v. State (1967) NMLR 9 and Enahoro v. State (1965) 1 All NLR 25 to the effect that suppression of facts or secreting of witnesses capable of establishing the innocence of the accused is unethical and savor of unprofessional conduct.

Continuing, counsel submitted that the contradictory evidence, the failure to call vital witnesses, secreting witnesses and failure to prove ingredients of the offences charged which are evident on the record, cannot support the finding of the trial Court, as the learned trial Judge ought to presume under Section 167(d) of the Evidence Act 2011 that the evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. Counsel therefore submitted that the evidence of the prosecution is froth with contradictions and inconsistency and cast serious doubts on the case of the prosecution against the Appellants. Counsel urged this Honourable Court to set aside the conviction on the basis that the prosecution’s case is so unreliable. He referred to the case of Amadi v. State (1993) 8 NWLR (Pt. 314) 644 at 660 para. E- F to support his submissions.

In respect of issue 2; whether the evidence adduced by prosecution proved the ingredients of the offence charged. Counsel submitted that the prosecution must establish that the criminal minds really met somewhere to hatch a crime. Counsel argued that Exhibits 2 and 3 (statement of the accused persons to the police) and the examination in chief and cross-examination of DW1 and DW2 (1st and 2nd accused persons) do not show any agreement between the Appellants to defraud by any stretch of imagination. That there is no challenge or controversy of the evidence of the 1st Appellant as to how he got to know the 2nd Appellant. That the prosecution failed to establish the meeting of minds between them or had formed a common intention of committing an unlawful act in which there must be a consensus ad idem. He cited the case of Aituma v. State (2007) 5 NWLR (Pt. 1028) 473 in support of this point.

In furtherance, counsel submitted that the prosecution failed to show that the Appellants received any of the money paid into the Divine Global Concept Ltd account or benefitted in any manner or way. He further argued that the tracing of the movement of the money can easily reveal if the Appellants conspired with the 2nd Defendant (Nathaniel Jangbadi) and any other person.

Learned counsel submitted that the proof of deliberately misleading another is a crucial element for the offence of false pretence, and the prosecution has not shown by any evidence the intention to defraud by the Appellants. Counsel concluded that in this situation, the law is settled that this must be resolved in favour of the Appellants.

Counsel further submitted that the 1st Appellant on record showed that he acted fairly, transparently and honestly, and believed in the truth of the representations he made even though the transaction failed, and that the prosecution had every opportunity to disprove the assertions and defence of the Appellants, but failed and could not do so which result shows that the prosecution has not proved the required mens rea, the intent to defraud by the Appellants. Counsel referred to the case of Onwudiwe v. FRN (2006) All FWLR (Pt. 319) 775, 812 where Niki Tobi JSC said, “An honest belief in the truth of the representation on the part of the accused which later turns out to be false, cannot found a conviction on false pretense”.

Counsel finally urged this Court to answer this issue in the negative and in favour of the Appellants.

In respect of issue three, whether the judgment of the lower Court considered the evidence adduced by the Appellants during trial.

Learned counsel submitted that the learned trial Judge failed to consider the evidence given by the 1st Appellant that PW1 was aware that he is a banker and was in his office at his bank branch at Ikotun when the complainant with Alhaji Abu came to him. That before then he has never met them. Also that Alhaji Abu claimed to know Mr. Lucky Balogun, the rice supplier, whose company received the sum of N11,160,000.00.

Counsel submitted that the learned trial judge did not consider the evidence of the Appellants (DW1 and DW2) that all persons mentioned in the transaction were arrested by the Special Fraud Unit at Lagos. Further, counsel also submitted that all assertions of the Appellants in their defence were totally ignored by the learned trial Judge in the judgment. That in the same judgment, the learned trial Judge found that there was a tracing of the money to Zenith Bank, and that PW1 was not interested in any fraud case and investigation but his money (as in pages 217 and 218 if the record of Appeal). Counsel submitted that from the judgment, there was no proof of fraud before the Court, but the Court suo motu suggested, suspected and convinced himself without any evidence that since PW1 did not get his money, the accused persons committed fraud and must be convicted with or without proof. Counsel concluded that suspicion no matter how strong cannot ground conviction. He cited the case of Oshodin v. State (2001) 12 NWLR (Pt. 726) 217 at 234 para. A – C.

In the final conclusion, counsel urged this Court to set aside the judgment of the lower Court convicting and sentencing the Appellants to 5 years imprisonment, and discharge and acquit them.

The learned counsel for the Respondent Daniel Ahmad, Esq., filed a Respondent’s brief of argument dated and filed on 27th August, 2018, wherein the Respondent adopted the three (3) issues for determination formulated by the counsel for the Appellants with slight adjustment to the 1st and 2nd issues as follows:
1. Whether there was contradiction between the statement of PW1 as contained in the proof of evidence and his evidence during trial?
2. Whether the prosecution discharged the onus upon it of proof beyond reasonable doubt to support the conviction?
3. Whether the judgment of the lower Court considered the evidence adduced by the Appellant and his co-convict during trial?

In respect of issue one; whether there was contradiction between the statement of PW 1 as contained in the proof of evidence and his evidence during trial? Learned counsel submitted that the extra-judicial statements of the Appellants to the police which were admitted in evidence by the lower Court as Exhibits 2 and 3 were very emphatic as they confessed to the commission of the crime, and that the lower Court was right to have held that it was a fraud. Counsel further submitted that all the prosecution did was to adduce further credible evidence to establish the guilt of the Appellants.

Counsel argued that evidence of PW1 was never contradictory and it only points to the fact that he was called on phone by the 1st Appellant (1st Appellant was in Lagos while PW1 was in Minna) and the subject of their discussion was that PW1 should send the sum of N11,160,000.00 and that after 3 days, three trailer loads of rice will be sent to him from Lagos to Minna. That PW1 paid in the money to the account supplied. Counsel submitted further, that the above evidence was never denied, never contradicted and never rejected by the Court but was held to be direct, positive and unequivocal. Counsel also argued, relying on the case of Mafa v. State (2013) 3 NWLR Pt. 1342 PG 607 at 610 – 611 RT 5, that if there are minor discrepancies in the statement of the PW1 to the police and his later testimony in Court, they are not such fundamental to create doubt in the mind of the Court.

Continuing, counsel submitted that although the account does not belong to the Appellants, PW1 could not have had access to that account without the Appellants. Counsel also stated that there was never contradiction or discrepancy or inconsistency on the key issues in the case before the Court. That there was inducement for money to be sent by PW1 to account of Divine Global Concept Ltd by the Appellants. That both of them had carefully hatched their plan and so it was easy to execute even with the complaint laid at the Special Fraud Unit, Lagos by a lawyer engaged through the 1st Appellant.

Counsel urged this Court to hold that there was no contradiction in the evidence of the prosecution witnesses and even if there was a minor discrepancy in the statement of PW1 and his evidence in Court, it was never fundamental.

In respect of issue two; whether the prosecution discharged the onus upon it of proof beyond reasonable doubt to support the conviction?

Counsel submitted that the Respondent discharged the onus placed upon it by not only proving the case beyond reasonable doubt but also against any iota of doubt that the Appellants had intention, conspired and committed fraud. Learned counsel referred to Section 8 (a), (b) and (c) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6, 2006, and Section 1 (1), (2) and (3) under which the Appellants were charged for both the 1st and 2nd count of offences respectively at the trial Court and submitted that the testimonies of the Appellants were confessional, direct and unequivocal admitting the offence and they never intended a genuine transaction in the first place but had a fraudulent intention.

Continuing, counsel argued that to prove conspiracy, what the Court ought to look at is the act and mostly the circumstances surrounding the act of the accused persons as conspiracy is often planned in secret by the affected persons. Counsel referred to the case of Obasanjo-Bello v. F.R.N (2011) 10 NWLR Part 1256, page 605, at 608, Rt. 2. That in Section 96 of the Penal Code, it is defined as an offence committed when two or more persons agree to do or cause to be done an illegal act; or an act which is not illegal by illegal means. Counsel submitted that the agreement and illegal act done was in this case by the calling of the PW1 on phone by the 1st Appellant and the involvement of the 2nd Appellant wherein the Appellants, held a meeting at First Bank Branch in Lagos which followed with an action of inducement and obtaining by pretence. Counsel urged this Honourable Court to discountenance with the submission of the Appellants and resolve the issue in favour of the Respondent.

In respect of issue three that is; whether the judgment of the lower Court considered the evidence adduced by the Appellants during trial? Counsel submitted that the lower Court reasonably considered the evidence adduced by both parties. Counsel further submitted that the trial Court based its judgment on credible evidence, confession and other surrounding circumstances which every reasonable Court could have done. However, counsel argued further that during trial at the trial Court, the 2nd Appellant could have invited witnesses like Mr. Lucky Balogun who was at large to testify for them in order to exonerate themselves, and if there was an investigation which cleared the Appellant, he ought to have presented it to the trial Court.

Counsel submitted that all that the Appellants were trying to establish in the lower Court was that the transaction was a failed one, but the evidence before the Court established that the Appellants did not undertake the transaction in good faith but rather used their positions illegally to commit fraud. That the lower Court properly evaluated the evidence of the parties presented before it and its assessment were equally based on evidence which the prosecution proved beyond reasonable doubt. Counsel therefore urged this Court to discountenance the arguments of the Appellants and resolve the issue in favour of the Respondent.

Finally, counsel prayed this Court to uphold the decision of the lower Court which convicted and sentenced the Appellants to five (5) years imprisonment without option of fine.

RESOLUTION:
As noted above, the learned counsel for the Appellants raised 3 (three) issues for determination. The learned counsel for the Respondent adopted the said 3 (three) issues raised by counsel for the Appellants with slight adjustments. I shall therefore determine this appeal based on the aforesaid 3 issues raised by counsel for the Appellants.

Issue one deals with evidence that is; whether the contradictory statement of PW1 in the proof of evidence and evidence during trial support the finding of the lower Court.

From the PW1’s extra-judicial statement to the police in Minna made on 16-03-2021 at page 27 of the record of Appeal, the following emerged:
1. The PW1 travelled to Lagos to buy rice.
2. He was introduced to the 1st Appellant who was a branch manager of Oceanic Bank Ikotun Branch in his office at Ikotun by one Abu accompanied by one Prince Amadi.
3. That he was shown the rice but he could not buy in a competitive price.
4. That he left Lagos and went back to Minna.

5. That the 1st Appellant called him to inform him that he will “help” him to source for the rice.

6. That he was introduced to the 2nd Appellant who was also Manager of First Bank of Nigeria Plc. Festac Town, Lagos by the 1st Appellant.
7. That the 2nd Appellant assured him (PW1) of the supply of rice from Divine Global Compact Concept Ltd whereupon he was made to pay into Divine Global Compact Concept Ltd Account No. 3017292835 the sum of N11,160,000.00.
8. That it was the 2nd Appellant that filled the transfer slip and made him (PW1 to sign the filed transfer form for the payment).
9. That he equally paid N550,000 for the amount for transporting the goods from Lagos to Minna.
10. That he “waited in Lagos” to see the actualization of “the supply but to no avail”.

From the foregoing, the whole transaction from paragraphs 1-10 above took place in Lagos. Then in a summersault or turn around the PW1 said:
11. That “all transactions regarding this business were made in Minna before travelling to Lagos and the bank where the money was transfer from is in Minna.”

It is very important to state here that paragraph 11, which now introduced Minna as the centre of transaction and activities in this case is very contradictory to paragraphs 1 – 10 which clearly showed that the transaction took place in Lagos. See page 27 of the record of appeal.

Again from the PW1’s testimony in Court on 6/4/2016. The following emerged:
1. The PW1 was in Minna when the 1st Appellant called him to inform him that he had rice to sell to him.
2. He sent money into his own account with 1st Bank in the sum of N11,200,000.00 (Eleven Million Two Hundred Thousand Naira only)
3. The Appellants “now removed the money” from his account.
4. That he went to Lagos and waited for the rice or money and the 2nd Appellant gave him N1,000,000.00 (One million Naira only)

It is important to note that everything that happened in Lagos during the first trip has been excluded. Again the evidence of the Appellants removing N11,200,000 from his account is clearly contradictory to the evidence of the form for transfer being filed by the 2nd Appellant and asking him to sign. See pages 126 – 127 of the record thus:
“Emmanuel and his friend now removed the money from my account. Who is Manager at First Bank branch in Lagos, transferred the money from my account to the account name they sent to me.”

Under cross-examination at page 129 of the record the following emerged:
1. He did not know how “they transferred the money” but 1st accused knows, according to him; “l do not know how they transferred the money but Emmanuel Atiluku knows how they transferred the money.”
2. He “cannot remember if the transfer was done in Lagos”
3. He “could not remember” if he “signed any document for transfer of his money to Divine Concept”.

From the foregoing, it is very clear that the evidence of the PW1 is clearly very self-contradictory on every material fact of this case. His extra-judicial statement to the police is also contradictory to his evidence under oath. Furthermore, under cross-examination his evidence was further contradicted. There is no doubt that the law is that where the extra-judicial statement of a witness contradicts his later evidence on oath, both evidence must be rejected as unreliable and where it casts doubt on the guilt of the accused, he must be acquitted. See Onuchukwu v. The State (1998) 4 SCNJ 36, Dogo & Ors v. The State (2001) 5 NSCLR 307 at 325 and Onubogu v. The State (1974) 9 SC 1. This issue is therefore resolved against the prosecution in favour of the appellants.

The 2nd issue is whether the evidence adduced by the Prosecution proved the ingredients of the offence charged.

The offence of conspiracy is defined as the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means per Okoro JSC in Ndozie v State (2016) 8 NWLR (Pt. 1513) 3 para E- F. See also Njovens v. State (1973) 5 SC 17. The underlining factor in conspiracy is the meeting of the mind of the conspirators. In this case, the transaction in this matter was initiated by the PW1 when he travelled from Minna Niger State to Lagos to buy rice. The Appellants were bankers doing their work until the PW1 was introduced to the 1st Appellant in his workplace at Oceanic Bank Ikotun. There was no meeting of the mind at this stage. Reflecting on it, why would the complainant (PW1) go to the Bank to buy rice instead of going to the market. There is evidence that to “help” him the 1st Appellant was introduced to the 2nd Appellant. In both his statement to the police and evidence under oath, the 1st Appellant was not there when the PW1 transacted with the 2nd Appellant, in fact it was against the 1st Appellant’s advice. Yes, 1st Appellant held a meeting with the other persons involved in this matter but he said that his intention was to ensure that the transaction pulled through successfully.

Under cross-examination, the PW2, who was the leader of this police team that investigated this case stated thus:-
1. “l did not ask the account name where the money was transferred to.”
2. I do not know Account No. 3017292835 and cannot say if it belongs to divine as the case may be.
3. The account where the money was taken to I did not “investigate” to know the name of the director.
4. The money went to one Global Bank I do not know the name.
5. I do not know where the person who opened this account is domiciled.
See page 149 of the record.

All the parties agreed that the money was paid into a 1st Bank account no. 3017292835 of Divine Global Concept Ltd. Yet this company was not investigated. There is evidence that the said company belonged to one Lucky Balogun who in fact was paid additional N550,000 cash for transportation. Worse still, there is evidence that the said Lucky Balogun was arrested in Lagos by the police that first investigated this matter, yet he was not rearrested, questioned or investigated by the police from Minna. See pages 27, 127 – 129. Even Alhaji Abu who took the PW1 to the 1st Appellant and who claimed to know the said Lucky Balogun was not interrogated. From the foregoing, it is very clear that there was clear and gross failure of investigation in this matter.

Apart from the foregoing, in Atobatele v FRN 2018 LPELR-44792 (CA), this Court held that to succeed in a charge of false pretenses the ingredients are:-

1. That there was a pretence.

2. That the pretence emanated from the defendant.
3. That the pretence was false.
4. That the defendant knew of the falsity of the pretence or did not believe it in its.
5. That there was an intention to defraud.
6. That the property or thing is capable of being stolen.
7. That the defendant induced the owner to transfer his whole interest in the property. See Alake v the State (1991) 7 NWLR (Pt. 205) 591, Onwudiwe v FRN (2006) P 715 1 at 55 and Odiawa V FRN (2008) All FWLR (Pt. 439) 435.
It is not in doubt that the prosecution did not prove the ingredients to sustain a conviction for a charge of obtaining by false pretences. This issue is also resolved against the Respondents.

The 3rd issue is whether the judgment of the lower Court considered the evidence adduced by the Appellants.

The judgment of the lower Court is contained at pages 212 – 220. That is about 8 pages. Pages 212 to 217, of the lower Court merely reproduced the charges against the Appellants and the ingredients of the offences as charged and a very brief summary of the case.

I shall reproduce hereunder the relevant portions of the judgment where the lower Court made any reference or consideration of the evidence laid in this case and her consideration or conclusion thereof as follows:
At page pages 214 – 215 of the record:
“DW1 in his defence testified that they held a meeting, himself, Nathaniel the 2nd Accused person, Prince Amadi, Mary and Bukola the victim, PW1 was not at that meeting.
This Bukola introduced them as signatory, with the rice owners in attendance at that meeting.
The DW1 suggested that the money should be paid by e-payment; they agreed it should be paid electronically.
DW1 said he linked up the victim PW1 with DW2 in this transaction. He was informed by Isah that DW2 gave him One Million Naira (N1,000,000.00) to ameliorate his suffering.
DW2 said PW1 wanted to buy rice with the sum of N11,160,000.00 (Eleven Million One Hundred and Sixty Thousand Naira) was to transfer the money to account of Divine Global Concept Ltd, he told DW2 there was no transaction in that account.
DW2 got a form and did the transfer and he gave PW1 the Divine Concept Phone number.
When after 3 days PW1 did not get the rice he called DW2, who said he should call this Divine Concept and he too will call them.
PW1 reported the matter to the police. During investigation he said police traced the money of that lodgment to Zenith Bank instead of the First Bank police found it was not a fraud and PW1 then took the matter to Minna.”

At page 218 of the record:
“DW2 said too that PW1 reported the matter to the police and during police investigation they traced the money of that lodgment to Zenith Bank police found it was not fraud he stated further and PW1 then took the matter to Minna.
The money is lodged in Zenith Bank and matter is not fraud. So where is this money, as to my mind I think PW1 the victim here will be more interested in his money than pursuing the fraud case. There is no money refunded and the circumstance of this case is fraudulent.”

At page 219:
“On the whole based therefore on the evidence before the Court, the prosecution here has established its case beyond reasonable doubt as required in criminal cases and the Accused persons will consequently be convicted accordingly.”

The above is all that is contained in the judgment of the lower Court. The question is upon which evidence were the Appellants convicted? The answer is on page 218 thus: “So where is this money, as to my mind I think PW1 the victim here will be more interested in his money than pursuing the fraud case. There is no money refunded and the circumstance of this case is fraudulent.”

The trial Court did not evaluate the evidence presented before her and failed to consider the defence of the Appellants.

The prosecutor called 2 witnesses PW1, whose evidence I have found to be most contradictory in every materials fact. And the PW2, the lead of the police team from Minna. I have held that there was a gross failure in investigating this matter.

The trial, conviction and sentencing of the Appellants at the lower Court can be described as most bizarre.

In all, I hold that the ingredients required to prove the 2 offences as charged in this case were not proved at the lower Court, much more proof beyond reasonable doubt. This appeal is not lacking in merit. It ought to be allowed.

The conviction and sentencing of the Appellants by the lower Court as delivered and or ordered in its judgment on the 29/3/2018 is hereby set aside. I hereby discharge and acquit the Appellants of the 2 (two) count charges in Charge No: NSHC/MN/98C/2014. I order their immediate release from prison custody. This appeal is allowed.
Judgment is entered accordingly.

MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance, the judgment just delivered by my learned brother, KENNETH IKECHUKWU AMADI, Ph.D, JCA. I equally agree with the reasoning and the conclusion that the appeal has merit. I accordingly allow the appeal and abide by the consequential orders therein.

ABDUL-AZEEZ WAZIRI, J.C.A.: I have been afforded a draft copy of the judgment prepared and delivered by my learned brother, Kenneth Ikechukwu Amadi JCA. Upon careful scrutiny of the legal submissions and the printed record of appeal, I find and hold that the appeal herein is full of merit.

Consequently, appeal is allowed. Appellant is hereby discharged and acquitted.