BIRNIWA v. FRN (2020)

BIRNIWA v. FRN

(2020)LCN/14686(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/KN/289/C/2019

RATIO

EVIDENCE: BURDEN OF PROOF WHERE THE COMMISSION OF A CRIME IS DIRECTLY IN ISSUE

By virtue of Section 135 (1) and (2) of the Evidence Act 2011, if the commission of a crime is directly in issue in any proceeding, be it civil or criminal, it must be proved beyond reasonable doubt and it is the duty of the Prosecution to prove the elements of the offence charged before it can be said to have discharged its duty –F.R.N VS. CHIEF UMEH & ORS. (2019) 2 SCNJ 241; DONALD KENU VS. THE STATE (2019) LPELR – 48307 (CA) AT PAGE 17 AND ASEKERE VS. STATE (2015) LPELR – 25809 (CA) 32. The evidence to prove the elements of the offence must be compelling and conclusive such that there is no room for doubt as to the guilt of the defendant. It does not however mean that it is beyond all doubt. No. It simply means that it must be beyond a doubt which is reasonable, not unreasonable. PER YAHAYA, J.C.A.

CRIMINAL LAW: OFFENCE OF OBTAINING UNDER FALSE PRETENCE

Section 1(1)(b) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006 under which the Appellant was charged, reads –
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud –
induces any other person, in Nigeria or in any other country, to deliver to any person; (or) 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.”
The ingredients of the offence are that (1) there was a pretence; (2) the pretence was false; (3) the pretence emanated from the defendant; (4) the defendant knew that the pretence was false; (5) that the defendant had the intention to defraud; (6) the property or thing obtained was capable of being stolen; and (7) the defendant was the one who induced the owner of the property to transfer his whole interest in the property. See ELVIS EZEANI VS. F.R.N (2019) LPELR – 46800 (SC); IJUAKA VS. COP (1976) LPELR – 1466 (SC) per Obaseki JSC and ADOGA vs. F.R.N (2019) LPELR – 46931 (CA) per Hassan JCA. PER YAHAYA, J.C.A.

EVIDENCE: PRIMARY TASK OF A TRIAL COURT

The task that must be done by a trial Court, is to evaluate the evidence led and ascribe probative value thereto, as it assesses the credibility of witnesses. It does this, as it has the singular opportunity to see and observe the witnesses as they testify. An appellate Court has no such opportunity and so cannot assess the credibility of witnesses as they testify. MAMUDA VS. STATE (2019) 1 SCNJ (PT. 11) 365 AT 392. It is only when the findings of a trial Court are perverse, that an appellate Court will be called upon, and will be duty-bound to interfere. Perversity occurs where the findings are (1) not based on admissible evidence and so is speculative; (2) when the Court took into account matters it ought not to have taken account of; (3) the Court did not take into account matters it ought to or (4) it shut its eyes myopically, to the obvious. When any of these elements in present, there is a miscarriage of justice and the judgment would not be allowed to stand on appeal – MUSA VS. STATE (2019) 1 SCNJ (PT. 11) 543 AT 563 AND AKINLAGUN & ORS. VS. OSHOBOJA & ANR. (2006) LPELR – 348 (SC). PER YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ABDULLAHI MUSA BIRNIWA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivered the Leading Judgment): This appeal is from the decision of the High Court Kano, delivered on 26th July 2018 in Suit No. K/EFCC33/2015, wherein the Appellant as the defendant, was found guilty and sentenced to one year imprisonment without fine for obtaining the sum of seventy thousand naira from Nasiru Isah in 2013, under the pretence that the Appellant would secure a job for the said Nasiru Isah at Abuja within two weeks.

The Charge against the Appellant reads –
“That you Abdullahi Isa Birniwa sometimes in May 2013 in Kano within the jurisdiction of the High Court of Kano State with intent to defraud, did obtain the sum of seventy thousand (N70,000) naira only from Nasiru Isa on the pretence that you will provide him employment in the Federal Government establishment within two weeks in Abuja, which pretence you knew to be false thereby committed an offence contrary to Section 1(1)(b) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same law.”

In a bid to prove its case, the Prosecution called two witnesses and

tendered Exhibits P1, P1a, P2, P3 and P4. The Appellant testified on his behalf and tendered Exhibit D2. At the end of the trial, the Appellant was found guilty and sentenced.

Being dissatisfied, he filed this appeal. His counsel, Mr. Sani Garba Gwale settled the brief which was filed on the 5th of February 2020. He identified one issue for determination. It is –
“Whether or not the trial Judge is right in convicting and sentencing the Appellant for an offence contrary to Section 1(1)(b) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006”

The Respondent’s brief was filed by Mr. Sadiq Hussaini on 22nd June 2020 but was deemed filed on the 9th July 2020. He adopted the lone issue formulated by the Appellant.

In arguing the appeal, learned counsel for the Appellant referred to Section 1(1)(b) of the Advanced Fee Fraud and Other Fraud Related Offences Act 2006 (referred hereafter as the Fraud Act). He then referred to the cases of OLUWASHEUN VS. FRN (2016) LPELR – 40768 (CA) 27 – 28; GAYUS VS. FRN. (2017) LPELR-43023 (CA) 35-36 AND IKPA VS. STATE (2017) LPELR – 42590 (SC) 84 on the

ingredients of the offences which must be proved by the Prosecution. He referred to Section 20 of the Fraud Act on the definition of ‘false pretence’ and the Black’s Law Dictionary 8th Edition also, on the meaning of ‘false pretence.’ He then argued that no evidence has been led by the Prosecution, to prove that the Appellant made a mis-statement (representation) either to the victim or to any other person. He argued that from the evidence of PW1, it is clear that he did not have any discussion with the Appellant regarding providing him with employment in the Federal Government establishment within two weeks; and that a discussion with the father of the PW1 did not disclose this. He attacked the finding of the trial Judge in his Judgment, where he concluded that the Appellant who was connected to PW1 by his father, agreed to secure a job in Abuja for PW1, saying that there is no evidence before the Court of such agreement. He was emphatic, that PW1 did not in his testimony, mention any promise made to him by the Appellant as the trial Court found. That all that PW1 said, was that his father told him to take his credentials to the

Appellant. He charged the trial Judge for including into the testimony of a witness, what was not there. This is a serious charge.

Learned counsel for the Appellant has also submitted that the trial Judge had failed to consider the important element of intent to defraud PW1. He referred to OLUWASHEUN VS. FRN (SUPRA) AT PAGE 64.

Again, learned counsel for the Appellant submitted that the trial Judge did not properly evaluate the statement of the Appellant to EFCC, where he made mention of recommendation letter. He found it surprising that the trial Judge said that the Appellant did not state in his statement that he was to get a recommendation letter, and only said so in his testimony in Court. He referred to the evidence of PW2 under cross-examination when he said he did not investigate the issue of recommendation raised by the Appellant, as showing that the Appellant indeed raised the issue of a recommendation letter, contrary to the finding of the trial Judge. Counsel concluded that since the element of false pretence to find employment for PW1 in a Federal Government establishment in Abuja within two weeks had not been proved through any of the

witnesses called by the Prosecution, it had failed to discharge its duty and the Appellant must therefore be acquitted – KORAU & ORS VS. STATE (2015) LPELR – 25917 (CA). He urged us to allow the appeal.

Responding, leading counsel for the Respondent referred to the cases of EDE VS. FRN (2001) 1 NWLR (PT. 695) 502 AT 512; ONWUDIWE VS. FRN(2006) 10 NWLR (PT. 988) AND OLUWASHEUN VS. FRN (2016) LPELR – 40768 (CA) on the ingredients of the offence with which the Appellant was charged with and submitted that the Prosecution had proved it beyond reasonable doubt. He referred to the evidence of PW1 and PW2 to submit that it had disclosed that the Appellant had made a representation to PW1, that he secured a job for him and should pay N70,000, which he did; that the representation was false as there was no job secured; that he had the intention to defraud PW1 as he even enticed him to travel to Abuja for a job interview that was non-existing and that it was the representation that operated on the mind of PW1 which made him to part with the money.

Learned counsel supported the position of the trial Court, that the Appellant did not

mention that he secured a recommendation letter for PW1, in his statement to the EFCC, thus preventing an investigation into the authenticity of the letter of recommendation he only tendered at the trial. He was of the view that there was never an issue of a recommendation letter for PW1 and that the trial Judge had properly evaluated the evidence led and had given probative value to the evidence led by the Prosecution which was unchallenged- EBEINWE VS. THE STATE (2011) 7 NWLR (PT. 1246) 406 AT 416. The Court was therefore entitled to rely on same. He urged us to dismiss the appeal.

evidence to prove the elements of the offence must be compelling and conclusive such that there is no room for doubt as to the guilt of the defendant. It does not however mean that it is beyond all doubt. No. It simply means that it must be beyond a doubt which is reasonable, not unreasonable.

stolen; and (7) the defendant was the one who induced the owner of the property to transfer his whole interest in the property. See ELVIS EZEANI VS. F.R.N (2019) LPELR – 46800 (SC); IJUAKA VS. COP (1976) LPELR – 1466 (SC) per Obaseki JSC and ADOGA vs. F.R.N (2019) LPELR – 46931 (CA) per Hassan JCA.

When the Appellant was invited to the Economic and Financial Crimes Commission Office in Kano (EFCC), he made a statement – pages 88 – 90 of the record. Part of it reads –
“…I know one Nasiru Isa through his father Mallam Isa of Unguwa Uku Kano. Mallam Isa approached me last year 2013 to assist his son Nasiru Isa to get job for him in Abuja through my office National Assembly since the Senators and Hon. Members used to give us a recommendation letter to take to a place where we need any assistance as a result of this arrangement Nasiru Isa on his own gave me the sum of N70,000.00, N7,000, N3000 and N10,000 totaling N90,000 only….. However sometimes last year 2013, I called Nasiru Isa to come and attain (sic) interview at the Ministry for Internal Affairs which he fails to report on

time…”

However, in his testimony before the Court, extracts of which at pages 39-40 of the record, read –
“………I know Mallam Isah… He contracted me that since I am working at the National Assembly that I should assist his son Nasir Isah with a recommendation letter from a Senator or Member House of Representative any Government Agency so that he can get employment. I tried and got the recommendation letter from Hon. Ahmed Ali Member House of Representative representing Ilori South. The recommendation letter is for employment in the civil defence corps. After getting the recommendation letter I did inform Mallam Isah the father of Nasiru Isa (PW1) informed him of the letter of recommendation for civil defence but he told me his son will not work in a para military agency. He told me to try and get a recommendation letter for an employment other than para military work. I was trying my best. One day Mallam Isah called me on phone and asked me to send him my account number. After sending the account number I received an alert of N70,000.00 sent by one Nasiru Isah. I called Mallam Isah… he said

yes he sent it to me as a result of my effort to get the recommendation letter for his son….”

Learned counsel for the Appellant referred to the testimony of the Appellant at page 39 and submitted that “is exactly what was contained in the Appellant’s statement which he made at EFCC office Kano and same was tendered at the lower Court and admitted as Exhibit P2.” This submission is totally at variance with the facts in the record. The statement of the Appellant (Exhibit P2) shows that what Mallam Isah contracted the Appellant to do, was to assist to get his son (PW1) “a job for him in Abuja through my office…” He never stated, as counsel for the Appellant has erroneously submitted, that he was to get a letter of recommendation only. Therefore, what the Appellant wrote in his statement to EFCC (Exhibit P2) is at variance with his evidence. The only issue of recommendation in the statement of the Appellant (Exhibit P2), is a letter of recommendation a Senator or House of Representatives Member gives to the staff to take to a place where they need assistance. That is not the letter the Appellant said he was to

obtain. He categorically stated in his statement that he was contracted to assist in getting a job for PW1, not a recommendation letter. The trial Judge was right that there is evidence, showing that the Appellant was to get a job for PW1. The Appellant had thus clearly changed his position from what it was when he wrote Exhibit P2 (to get a job for PW1) to his evidence in Court where he now said he was only to get a recommendation letter not to get a job.

The evidence of PW1 shows that his father asked him to take his credentials to the Appellant. After doing so and giving the Appellant the sum of N10,000 for the purpose of giving the person who would take the credentials to Abuja, the Appellant called PW1 after some months to tell him that “the job has been secured. The Appellant requested PW1 to send him N70,000 to give “the money as a thank you gift to the person that helped him got the offer.” The PW1 sent the N70,000 to the Appellant through the Union Bank. Some months after this, the Appellant called PW1 to say there was a problem and he was to go “to Abuja for interview at the National Secretariat which I did. I went to the

secretariat but there wasn’t, any interview. I met the accused person at the secretariat. He then asked for the sum of N7000 again…..The accused promised to come along with offer of employment to me….The accused did not give me any offer of employment. I went back to the accused and demanded for my money from him which he failed to give me back. I went and lodged a complaint at the EFCC…..”

PWII, an operative of EFCC gave evidence and said he investigated the matter. He testified that from investigation, they “established that the Appellant with intent to obtain by false pretence from PW1, collected N70,000 for the purpose of securing job.” He knew the statement “to be false and never secured the job for the nominal complainant” Under cross-examination, PWII stated that
“From our investigation we were able to establish that there was no any issue of employment. Whatsoever.”

to see and observe the witnesses as they testify. An appellate Court has no such opportunity and so cannot assess the credibility of witnesses as they testify. MAMUDA VS. STATE (2019) 1 SCNJ (PT. 11) 365 AT 392. It is only when the findings of a trial Court are perverse, that an appellate Court will be called upon, and will be duty-bound to interfere. Perversity occurs where the findings are (1) not based on admissible evidence and so is speculative; (2) when the Court took into account matters it ought not to have taken account of; (3) the Court did not take into account matters it ought to or (4) it shut its eyes myopically, to the obvious. When any of these elements in present, there is a miscarriage of justice and the judgment would not be allowed to stand on appeal – MUSA VS. STATE (2019) 1 SCNJ (PT. 11) 543 AT 563 AND AKINLAGUN & ORS. VS. OSHOBOJA & ANR. (2006) LPELR – 348 (SC).

The trial Judge evaluated the evidence led, and came to the conclusion that the Prosecution had proved all the ingredients of the offence. There is cogent evidence upon which the conclusion was reached. From the evidence of PW1 accepted by the trial

Court, the Appellant had made a representation to PW1 that the job had been secured. The Appellant in Exhibit P2 stated that what the father of PW1 contracted him to do, was secure a job for PW1. After making the representation, the Appellant asked PW1 to send him N70,000 to give “as a thank you gift to the person that helped him to get the offer.” PW1 sent the said N70,000 to the Appellant, thus parting with the money on the basis of the representation made by the Appellant. The Appellant later told PW1 to go to Abuja for an interview at the National Secretariat, which he did. When he went there, it was false as there was no interview. The Appellant still demanded for more money from PW1 and “promised to come along with offer of employment to me.” He did not give PW1 any letter of employment. This was corroborated by the evidence of PWII that the Appellant “never secured the job for the nominal complainant.” In fact, he said, “there was no any issue of employment. Whatsoever.” The Appellant thus made a false representation to PW1 and knew that it was false as there was no employment whatsoever and he never

secured it. He tried to be clever by half in his testimony that it was a recommendation letter he promised to secure, not a job. The trial Judge had no difficulty and had rightly rejected this piece of evidence, as it was an afterthought without any credibility. The Appellant had thus induced PW1 to part with the N70,000 and other sums to him. PW1 relied on the false representation to part with the money and transfer his whole interest on it to the Appellant, money that was capable of being stolen. Thus, all the ingredients of the offence with which the Appellant was charged, had been proved beyond reasonable doubt through the evidence led and evaluated by the trial Judge. We find no perversity whatsoever in the findings of the trial Judge. The Appellant abused his office and defrauded the PW1. He was lucky to be sent to a term of imprisonment of only one year. The lone issue is resolved in favour of the Respondent and against the Appellant.

This appeal lacks merit and it is dismissed. I affirm the Judgment of the trial Court delivered on 26th July 2018 in Suit No. K/EFCC33/2015.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading

before now the lead judgment delivered by my learned brother, Abubakar Datti Yahaya. JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

The records of appeal show that upon the arrest of the Appellant by the Economic and Financial Crimes Commission, he made an extra judicial statement and an additional statement where he narrated what transpired between him and the complainant and these were tendered as Exhibits P2 and P3 at the trial without objection. In his oral testimony in his defence, the Appellant gave another narration, different from what he said in his extra judicial statements, The lower Court. in evaluating the evidence and making its findings, accorded weight to the narration of the Appellant contained in his extra judicial statement, as against the narration rendered in his oral evidence.
The grouse of the Appellant with the judgment of the lower Court, in this appeal, is with the evaluation of evidence carried out and his main complaint was the failure of the lower Court to give credence to the narration of events

contained in his oral testimony. Counsel to the Appellant was obviously unmindful of the present state of the law with regards to an accused/defendant vis-a-vis his extra judicial statement. It is that where an accused/defendant does not challenge the making of his extra judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered — Gabriel Vs State (1989) 5 NWLR (Pt 122) 457. Ogoala vs State (1991) 2 NWLR (Pt 175) 509, Egboghonome Vs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490. Federal Republic of Nigeria vs lweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu vs State (2013) 5 NWLR (Pt 1347) 360.
The rationale for this position of the law was given by Olatawura, JSC, while sitting on the full panel of the Supreme Court in Egboghonome Vs State (1993) 7 NWLR (pt 306) 393 that to give credence to the oral testimony of an accused defendant in such circumstances

“…will be an escape route freely taken by an accused person without any hindrance to escape justice. It will not be in the interest of the society to allow a man who has confessed to his crime to walk out of Court a free man simply because he had a change of mind. the whole trial will be a mockery. As aptly put by the Attorney-General of Ondo State it would be dangerous to apply the principle to extra judicial confession of accused persons as it would open the floodgate to retraction of all statements made by accused persons before police officers”.

The Appellant offered no explanation for the differences in the narrations and the lower Court was thus very correct when it placed reliance on the narration of events contained in the extra judicial statements of the Appellant, rather than that in his oral evidence.

It is for these reasons and the fuller exposition of the law in the lead judgment that too find no merit in this appeal and I hereby dismiss same.

I affirm the judgment of the High Court of Kano State delivered in Suit No K/EFCC33/2015 by Honorable Justice Nasiru Saminu on the Of July, 2018.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment delivered by my learned brother ABUBAKAR YAHAYA, JCA. I agree with the reasoning and conclusion that there is no merit in this appeal. I adopt his reasoning in dismissing this appeal and affirm the judgment of the Kano State High Court delivered on 26th July 2018 in suit NO. K/EFCC/33/2015 convicting and sentencing the Appellant to one-year imprisonment without an Option of fine.

Appearances:

Sani Garba Gwale Esq. For Appellant(s)

Douglas Ijah Gift Esq., Senior Legal Officer EFCC For Respondent(s)