EKAKITE v. C.O.P (2022)

EKAKITE v. C.O.P

(2022)LCN/16454(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Monday, July 04, 2022

CA/AS/240C/2020

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

ANNA EKAKITE APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO:

WHERE THE APPELLATE COURT WILL INTERFER IN THE TRIAL COURT FINDINGS

It is the general principle of law that an appellate Court cannot disturb the finding of fact of a trial Judge based upon the credibility of witnesses but where the finding of fact is based on an inference from evidence accepted by the trial Judge, the appellate Court being in a good position as the trial Court can interfere in such a case. See: Akinola v. Oluwo (1962) 1 All NLR 224; Akpapuna v. Nzeka (1983) 2 SCNLR 19; Customs and Excise v. Barau (1982) 10 SC 48, Okafor v. Idigo (1984)6 SC 1. MOHAMMED AMBI-USI DANJUMA, J.C.A.

WHERE THE APPELLATE COURT WILL INTERFER IN THE TRIAL COURT FINDINGS

The circumstances under which an appellate Court can rightly interfere with the findings of facts or the inferences drawn from facts have been restated in a number of cases as follows:
I. Where no finding was made on a relevant or material issue;
II. Where there is no evidence to support the particular finding complained of;
III. Where the finding is perverse and not the result of the proper exercise of the Judge’s judicial discretion to believe or disbelieve witnesses;
IV. Where the issue is not drawn from accepted facts;
V. Where there has been a misinterpretation by the trial Court as to what the antecedent presumptions were and where the onus of proof lay.
See: Sunday v. The State (1984) 12 SC 39 at 176-177. MOHAMMED AMBI-USI DANJUMA, J.C.A.

MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court of Justice delivered on the 11th day of June, 2020 by Justice C. E. Achilefu (Mrs) in Charge No. OUHC/3CA/2017 which sat on appeal against the judgment of the trial Magistrate Court, Orhuwhorun, Delta State delivered on the 18th day of July, 2017.

FACTS OF THE CASE
The Appellant, an accused (defendant) at the trial Magistrate Court, Orhuwhorun, Delta State was arraigned on a one count Charge No. MCOR/13C/2016 of fraudulently obtaining the sum of N1,200,000.00 (One Million, Two Hundred thousand Naira) from the PW1, Mrs. Betty Eduba under the pretence of renting out two Stores to which she knew to be false contrary to Section 418 of the Criminal Code Law. The Appellant’s case was that PW1- Mrs. Betty Eduba, a petty trader was the tenant of the Appellant, owner of a stretch of six stores at Market Road Orhuwhorun Town in Delta State where the PW1 carried out her business until the said stores were burnt by hoodlums in the year 2012. As a result of the inferno at the said stores, the Appellant held a meeting with all her former tenants and notified them she wanted to rebuild the said stores and any tenant who is interested should pay the sum of N600,000 each as rent to enable her complete the building of the stores. PW1 consequently, paid the sum of N1,200,000.00 for two stores vide UBA Deposit Teller, Exhibits C1 to C6 and also entered into a tenancy agreement, Exhibit A with the Appellant. One of the covenants in Exhibit A, the tenancy agreement is for the tenant to pay inter-alia all rates, taxes, and outgoings in respect of the building. PW1 was put into possession of two stores upon completion by the Appellant, thereafter the Appellant demanded a refundable caution fee of N120,000.00 (One hundred and twenty thousand Naira) from the PW1 against any wilful damage in the course of the tenancy which said caution fee the PW1 refused to pay and instead the PW1 demanded a refund of the rent paid in respect of the two stores with interest. The Appellant agreed to pay back the rent to PW1 but without any interest. Aggrieved by the refusal, the PW1 laid a complaint against the Appellant at the Police Station following which the Appellant was charged to the trial Magistrate Court. The Appellant pleaded not guilty. The prosecution in proof of its case called 4 witnesses PW1 to PW4. 19 Exhibits were tendered at the trial. The Appellant in defence, testified for herself alone without calling any further witness. The trial Magistrate Court after hearing the Charge found the Appellant guilty of the charge against her. Aggrieved by the judgment of the trial Magistrate Court, the Appellant appealed against the judgment to the High Court Delta State sitting at Udu, Judicial Division upon two grounds of Appeal. The High Court (lower Court) affirmed the decision of the trial Magistrate Court and dismissed Appellant’s appeal as lacking in merit. The Appellant being dissatisfied with the decision has appealed to this Court against the lower Court’s decision upon three grounds of appeal.

The parties filed and exchanged their respective Briefs of Argument in line with the rules and practice of this Court. The Appellant’s brief of Argument is dated 24/9/2020 and filed same day. The brief of argument of the Respondent dated 21/6/2021 was deemed to have been properly filed and served on 9/2/2022. Parties adopted their respective briefs of argument on 6/4/2022.

The Appellant raised three issues for determination as follows:
a. Whether the lower Court erred in law when it affirmed the decision of the learned trial Magistrate to the effect that the prosecution has proved her case against the Appellant beyond reasonable doubt in spite of the glaring lapses in the case of the prosecution.
b. Whether the lower Court erred in law when it affirmed the decision of the learned trial Magistrate to the effect that the Appellant’s conduct of subsequently demanding caution fee from the PW1 after putting her in possession amounted to a misinterpretation and an intent to defraud the PW1 in spite of the Lear provisions of paragraph 2 of Exhibit “A”
c. Whether the judgment of the lower Court delivered in this suit on the 11th day of June, 2020 is against the weight of evidence and thus perverse.

The Respondent formulated two issues thus:
I. Whether the lower Court erred in law when he affirmed the decision of the learned trial Magistrate said(sic) in his findings that the prosecution proved his case beyond reasonable doubt in the one count charge upon which the Appellant was convicted
II. Whether the judgment of the lower Court delivered in this suit on 11th day of June, 2020 is against the weight of evidence and thus perverse.

APPELLANTS ARGUMENT
The Appellant in his argument on the first issue, contended that the Respondent (prosecution) failed in establishing the ingredients of Section 418 of the Criminal Code Law beyond reasonable doubt. He submitted that the Respondent in proving the said offence failed to establish the following:
– The fact that the Appellant had made representation to the PW1 by words, in writing, of conduct, of a fact or matter either past or present which must have been false.
– That the Appellant must have made the above representation knowing that same is false, and
– That the Appellant when making the said representation did not believe same to be true.

He relied on the case of Okashetu vs. The State (2016) All FWLR (Pt. 861) 1262 at 1287 paras F-H, where the Supreme Court held that a proof beyond reasonable doubt is interpreted to mean that the prosecution must by credible evidence prove the ingredients of the offence and where the prosecution has not done that, it is not proof beyond the shadow of doubt. Counsel submitted that following a disagreement between the Appellant and three of her tenants including the PW1 overpayment of caution fee to which the Appellant refunded the other tenants the rents paid to her save the PW1 who demanded interests on the rent paid, the Appellant instituted a suit, Exhibit “L” at the Magistrate Court in a bid to refund the PW1 her rents. The claim was filed on behalf of the Appellant by PW3- Godwin Didimako Esq, whom the Appellant later on fell apart with. The suit Exhibit L was however adjourned sine die after Exhibit B was filed. In the course of hearing the suit in Exhibit B, Appellant refunded the PW1 the sum of N464,000 (four hundred and sixty four thousand) through the PW1’s counsel, V. O. Erhinyoja, a fact the PW1 admitted before the trial Magistrate Court. Counsel submitted the prosecution did not amend their charge to reflect the current state of things, again while the charge against the Appellant is that she obtained the sum of N1,200,000.00 from PW1 sometime in 2012, the evidence of the prosecution in support of the Charge showed that all the money (Exhibits C1 to C6) paid by the PW1 to the Appellant were all made in the year 2013. Respondent’s Counsel thus posits that it is trite principle of law that where a charge is at variance with the evidence led, same collapses and it would be unsafe for any reasonable Tribunal to convict a defendant on such a charge. Onyesanmi J Akinlemibola vs. Commissioner of Police (1976) 1 All NLR 3492.

The learned counsel argued that PW3, Godwin O. Didimako, Esq, whom she had a strained relationship with having debriefed him as her counsel and caretaker in December, 2014, is a tainted witness whose testimony is an afterthought as he had a purpose of his own having not made any extra-judicial statement to the PW2, Servant Nkanu Okoi yet he gave a lengthy testimony during the trial: Asuquo vs. The State (2016) All FWLR (Pt. 857) 533 at 564, paras. F-G more so, PW3 who testified for the Respondent on 9/1/2017 (after he was debriefed by the Appellant) admitted under cross-examination that he was not subpoenaed. PW3 started acting for PW1 and PW4 after he fell out with the Appellant as is shown in Exhibit “O”. He urged this Court to discountenance the evidence of PW3 as being tainted. He further submitted that PW4’s testimony was no doubt borne out of malice being that Appellant and the PW4 had a sour relationship having earlier given the latter a quit notice, Exhibit R and O further buttresses the sour relationship between the Appellant and PW4 as a result of which PW4 testified in favour of the Respondent.

The Appellant’s Counsel argued that at the trial, specimen handwritings (Exhibit D1) of PW1 and (Exhibit J) of PW2, Sargent Nkanu Okoi were taken by the defence in line with Section 101 of the Evidence Act, 2011 to discredit the PW1 who testified that she did sign her statement by writing her name on the tail end of Exhibit “D” recorded for her by PW2 rather the handwritten name of PW1 is the same with the handwriting of PW2, Sergeant Nkanu Okoi when compared with Exhibits D, D1 and J. Counsel submitted that the learned trial Magistrate Court erred in law when without adducing any reason it came to a conclusion at page 45 lines 1 to 13 of the Record that Exhibits D, D1 and J goes to no issue. He submitted the conclusion is perverse and occasioned a miscarriage of Justice on the Appellant. On the other hand, PW4 admitted that Exhibit P, her statement to the police, the signature and date thereon were written by the police at her request and not written by her. The effect of that, Counsel thus, submitted is that Exhibit P which the trial Magistrate Court relied on in arriving at its decision was indeed never made by the PW4 to the police and same ought to have been discountenanced. Appellant’s counsel in the light of the above submissions, posits that the lower Court erred in law when it affirmed the trial Magistrate Court’s decision which held that the prosecution has proved its case beyond reasonable doubt in spite of the glaring lapses in the case of the prosecution.

On issue two, as to whether the PW1’s conduct in asking for caution fee amounted to misrepresentation and an intent to defraud the PW1, Appellant’s Counsel contended that apart from the fact that it is in line with paragraph 2 of the tenant’s covenant (Exhibit A) with the landlady, Appellant as payment of impositions payable now or subsequently in respect of the building, the said Caution fee is a refundable fee paid by the tenant to the landlord as security given by such tenant to guarantee the performance of some obligation or covenant in an agreement with the landlord. Black’s Law Dictionary, Eight edition by Bryan A. Garner as to meaning of “Caution” refers. Counsel also in support of this contention reproduced the excerpt of the PW3 evidence as follows:
“It is correct that disagreement arose due to caution fee. It is correct that caution fee is refundable at the end of the tenancy”

On issue three, Counsel for the Appellant submitted that the decision of the lower Court was perverse and is against the weight of evidence, he argued that in spite of the lapses in the evidence of the prosecution and lack of proper evaluation by the trial Magistrate Court in respect of inter-alia Exhibits D, D1 and J, the lower Court which sat on appeal accepted the evaluation including the oral testimony of the PW3-PW4 which were an afterthought and based on malice in affirming the decision of the trial Magistrate Court thereby occasioning a miscarriage of Justice on the Appellant.

We were thus, urged by the Appellant to allow this appeal, set aside the judgment of the lower Court, discharge and acquit the Appellant and quashing the sentence passed on the Appellant.

RESPONDENT’S ARGUMENT
The Respondents by their brief of argument raised two issues as have been reproduced above in this judgment.

On Issue 1
Arguing issue number one, the Respondents contended that proof beyond reasonable doubt do not measure proof beyond all shadow of doubts. That once the ingredients of a particular offence to which the accused is charged with are approved, that constitutes proof beyond reasonable doubt. He submitted that where evidence is unchallenged the Court ought to accept such evidence in proof of the issue in contest. Omoregbe v. Lawani (1980) 3-4 SC 108; Okupe v. Ifemembi (1974) 97 at 103.

He further submitted that from the evidence led at the trial Magistrate Court, the evidences of PW1, PW2, PW3 PW4 and Exhibit A corroborate themselves in some material particular leading to the proof of the guilt of the Appellant. He also submitted that flowing from the evidence of the prosecution witnesses to wit: where PW1 testified that one Mrs. Roseline called her that she cannot continue after 2 installments of one hundred thousand naira each, her reason being that the Appellant was disturbing her too much; PW2 testimony that based on the petition of the PW1 he invited the Appellant to the Police station several times but she refused to honour the invitation; also PW3 evidence that he called the Appellant in December, 2014, to come and take her file with him on the grounds that she wants to use his position to defraud members of the public; and PW4 evidence wherein she stated that she did not have a personal quarrel with the Appellant but the issue is that the Appellant rented out one shop to herself, one Beauty, Mama Miracle, Madam Garrison and Madam meat.

The Appellant’s pattern of operation reveals an intention to misrepresent facts through false pretence with an intention to deceive/defraud just like she did the PW1 by introducing the issue of caution fees at the point when she was supposed to put her in possession of the shops after she had fulfilled her own side of the agreement as stated in Exhibit A. He argued that the learned lower Court’s in his judgment at page 139 of the Record of appeal held thus: “The accused and PW1 both gave evidence that agreed on amount which they converted to rent for 6 years. The accused at this stage allowed the PW1 to pay money she needed to rebuild her shop, collected same for use and later ask for caution fee, this can be nothing but intention to defraud the PW1 who already acted on the presentation of the accused and I so hold. This representation exposed the PW1 to loss or risk of loss”

On Issue 2, the Respondent’s Counsel contended that the judgment of the lower Court is not against the weight of evidence. He submitted that it is the primary duty of the trial Court who had the opportunity of watching the demeanor of witnesses who testified before him to evaluate and ascribe probative value to the evidence before it; he argued that there is nothing on record to show that the evaluation of evidence done by the learned trial Judge (sic) was in any way perverse. The learned Counsel responding to Appellant’s contentions under issue 3, further argued that in line with Section 68 (1) and (2) of the Evidence Act, Appellant’s Counsel is not in a position to compare Exhibits D, D1 and J not being an expert and the Appellant in the course of trial did not call any expert witness to compare the said signature. He submitted that the trial Magistrate Court compared the signature and came to decision that: “I can’t hold otherwise. I therefore hold that the signature goes to no issue.”

On the whole, the Respondent’s Counsel submitted that the lower Court’s decision is not perverse, against the weight of evidence and did not occasion a miscarriage of Justice.

We have, therefore been urged to dismiss the appeal and affirm the judgment of the lower Court.

RESOLUTION
From the Record of Appeal and in particular, the judgment of the trial Court leading to the grounds of appeal, the respective issues for determination formulated by the parties are apt, however, I shall raise a sole issue which in my view encapsulates/subsumes the issues raised by parties in support and against this appeal. The sole issue which I frame for the determination of this appeal is:
Whether in the circumstances of this appeal the lower Court was right when it affirmed the decision of the trial Magistrate Court to the effect that the prosecution has proved the Charge No. MCOR/13C/2016 beyond reasonable doubt and accordingly found guilty of fraudulently obtaining the sum of N1,200,000.00 (One Million, Two Hundred Thousand Naira) from one Betty Eduba, PW1?

Before delving into the resolution of this appeal it is pertinent to note that this is a double “decker” appeal, this appeal having emanated from the decision of the lower Court (High Court of Delta State) who sat as an appellate Court over the decision of the trial Magistrate Court, however it can be noticed from the Appellant’s brief of argument that the learned Counsel therein, mostly argued its brief as if this appeal is directly from the trial Magistrate Court to this Honourable Court.

I have studied the submissions of the Respondents’ Counsel and noted that the Appellant in the light of the above submissions, posits that the lower Court erred in law when it affirmed the trial Magistrate Court’s decision which held that the prosecution has proved its case beyond reasonable doubt in spite of the glaring lapses in the case of the prosecution.

For a better understanding of this case, it will be necessary or valuable to reproduce some excerpts of some of the witnesses’ testimonies at the trial Magistrate Court on Record:

PW1 in her evidence in chief at page 3 Record of Appeal stated thus:
“In 2008, I hired a shop from the accused person. Then in 2011, the shop was burnt down by the youths… Then in 2013 the accused person called me on phone and asked if I want to rebuild the burnt shop, I answered in the affirmative. We then met and agreed and we signed agreements through her lawyer … and I paid for 5 years to enable building to commence, we signed agreements on these terms… The accused then asked me to help her get tenants for the remaining shops…. I paid …, total of money paid now became …(N1,200,000). After I made the payment, the accused called me on phone that I should pay another two hundred and forty thousand for caution fee. I told her I cannot since I am the one that built the shop, …”

Under cross-examination, the PW1 at pages 4, 5 of the Record of appeal stated as follows:
“It is correct that the accused was my landlady and I had rent transactions with her. All the monies I paid to the accused person were between the month of March, and May, 2013. The agreement was entered into and signed before I paid the monies. (Identifying a document shown to her) yes it is the tenancy agreement. … I also filed a matter in High Court Otor Udu in respect of this sum. At the time of the agreement, the store was still under construction…. I do not know if her refusal to give me the shop is because I failed to pay the caution fee.”

The Appellant in her testimonies at pages 30-31 of the Record of Appeal stated thus:
“I did not defraud the PW1 of any money. In 2012, my house was burnt … when I want to build the house I invited PW1 and others that gave me some sum of money to enable me raise the building…. After she gave me the money I raised 6 Shops and I put her in two of the shops she paid for. After putting her in possession I demanded for caution fee from 6 tenants, PW1 and two others state that they cannot pay the caution fee and they packed out of the shop. I returned money to all three tenants two received their refund but the PW1 refused her money asking for interest. I called Didimako to write to PW1 to collect her money as we had not agreed on interest. I have paid PW1 her money now even though she refused to collect the money when Didimako wrote to High Court. I paid the money instalmentally in three parts… that was receipted by Barrister V. V. Erhiyeja…. This is the receipt issued to me for the last payment”

In resolving this issue, I will start by stating that in proving the offence of obtaining by false pretence, Section 418 of the Criminal Code Law, Cap. C21 Vol. 1, Laws of Delta State, the prosecution must establish or prove beyond reasonable doubt the essential ingredients or elements of the offence, that the accused and in the instant case the appellant:
A. Had made representation to the PW1 by words, in writing, or conduct, of a fact or matter either past or present which must have been false.
B. Must have made the above representation knowing that same is false, and
C. When making the said representation did not believe same to be true.

Even though proof beyond reasonable is not proof beyond all shadow of doubt, but evidence of the prosecution must be strong and direct leaving no remote possibility which can be dispensed with. See:
“The learned lower Court in its judgment at page 139 of the Record of appeal held thus: “The accused and PW1 both gave evidence that they agreed on amount which they converted to rent for 6 years. The accused at this stage allowed the PW1 to pay money she needed to rebuild her shop, collected same for use and later ask for caution fee, this can be nothing but intention to defraud the PW1 who already acted on the representation of the accused and I so hold. This representation exposed the PW1 to loss or risk of loss. …. The accused in her evidence stated “that after putting the PW1 in possession I asked her for caution fee, everyone pays caution fee….” This shows that the accused person always knew she will demand for caution fee but waited for the PW1 to settle down before demanding for same thereby denying the PW1 of any chance to refuse to pay said One million Two Hundred Thousand Naira. The prosecution has proved beyond reasonable doubt that indeed the accused person made a representation to the PW1 that caused the PWI to act, only for the accused to act otherwise….”

I do not agree with the inference drawn by the Honourable lower Court that led to its above conclusion. Can it be said that the Appellant collected money from the PW1 knowing or believing that she will not build the said shops or rent same to the PW1 or other persons she collected money from in the circumstances of this case? Before I delve into this poser may I at this juncture state some principles of law guiding the appellate Court in appeals of this nature.

There is no gain saying that Appellant received money from the PW1 and some other persons in order to rebuild her shops and in return for the PW1’s consideration, to let two of the shops to her and this led to the tenancy agreement between the Appellant and PW1. Anyone could have easily raised an eye brow, if the Appellant did not eventually rebuild the said shops as agreed between her and the PW1 on one hand (and with some other persons whom she collected money for same purpose) after collecting money from the said persons. No doubt the Appellant fulfilled the first part of the bargain as parties are ad idem from the evidence on record that the Appellant rebuilt the shops which was the first arm of the bargain and first purpose she collected money from some persons including the PW1. As to the second arm of the bargain which is letting the PW2 into the shops in view of the PW1’s consideration and in line with the tenancy agreement, Exhibit A: Appellant in her evidence testified that she put the PW1 in possession of two stores but after she demanded a refundable caution fee, the PW1 refused to pay and thus, packed out of the stores and demanded for a refund of her money with interest. PW2 on the other hand under cross-examination testified that disagreement arose between the Appellant and PW1 over caution fee which made them part ways, PW 2 further testified under cross-examination that throughout his investigation the said stores paid for by the PW1 were under lock and key, whenever he visited the premises and that he did not inquire as to who is occupying the said stores but in another breath, PW2 stated that he asked and got no response. PW1 on her part under cross-examination stated thus: “I do not know if her refusal to give me the shop is because of I failed to pay the caution fee requested for” This evidence also lends credence to the fact that the bone of contention was the caution fee not that the Appellant do not want to let the store to her. The Appellant further at page 31 of the record of appeal stated thus:
“Three of the other tenants paid their caution fee out of the six. I refunded money to the other two tenants and they did not ask for interest. The PW1 was my Tenant before and she paid caution fee”

The foregoing piece of evidence was not contradicted by the prosecution nor shaken under cross-examination by the prosecution. The PW3, the erstwhile Counsel to the Appellant also corroborated the fact that the Appellant refunded some tenants their payment following the fall out as to issue of caution fee, PW3 also under cross-examination corroborated the evidence of the Appellant to the effect that the disagreement between the Appellant and the PW1 was as a result of the demand for caution fee and that caution fee is refundable at the end of tenancy.

Contrary to the lower Court’s decision, it is not the intention of the Appellant to defraud the PW1 by demanding the caution fee after allowing the PW1 to settle down. There was an uncontroverted evidence on record that PW1 paid caution fee to the Appellant during the PW1’s tenancy before the rebuilding of the shop. The Appellant was only under the belief that it is the custom to pay caution fee which is refundable at the end of the tenancy. Whether or not the demand for caution fee is right or not is another kettle of fish which can be deciphered from express terms of the agreement between the parties or be drawn from inference as to what is the custom in such tenancy relationship. The demand for caution fee in this case do not constitute a misrepresentation or representation with the intention to defraud, such demand do not portend false pretence as wrongly concluded by the lower trial Court, at best, it rather constitute a breach in the agreement between Appellant and PW1 where it is found that the said demand for caution fee is not tenable in view of the agreement between the parties.

The appellate Court will reject any wrong inferences of the trial Court from the primary facts found. See: Melifonwu v. Egbuji (1982) 9 SC 145

The inference by the lower Court at page 139 of the Record of Appeal that the Appellant knowing she will demand caution fee waited for PW1 to settle down before demanding same thereby denying the PW1 of any chance to refuse to pay the one million two hundred thousand naira is in the light of the forgoing reasons wrong. Respondent’s submissions in support of the said lower Court’s decision is also misconceived.

On the other hand, Appellant’s Counsel further contended that the “Caution Fee” comes under the term imposition in view of Paragraph 2 of the tenancy agreement between the Appellant and PW1 which reads thus:
“To pay all taxes, duties assessment, impositions and outgoings payable now or subsequently introduced in respect of the building whether payable by the Lessor/Landlady or Lessee/ tenant”

As rightly contended by the Respondent’s Counsel, Exhibit A, even though dwelt on by the lower Court is not part of this Record of Appeal. In the same vein this Court won’t be able to review the Respondent’s submission that caution fee is not part of Exhibit “A” being that the said Exhibit as well as some other ones, Exhibits D, D1 and J were not made part of this Record of Appeal. Also, the issue as to the said clause in the tenancy agreement is being raised for the first time in this appeal and as such cannot be argued before this Honourable Court without leave, and I so hold.

On the contention that PW3 and PW4 are tainted witnesses whose evidence should be discountenanced, PW4 in her evidence stated that she did not have a personal quarrel with the Appellant but the issue is that the Appellant rented out one shop to herself, one Beauty, Mama Miracle, Madam Garrison and Madam meat. None of these persons mentioned by the PW4 were however, called as a witness in the charge; and there was nothing to show in the Record before us that the Appellant rented the said stores to several persons as claimed by the PW4. On the other hand, from the Appellant’s evidence at pages 29-31 of the Record, there is no doubt that the relationship between the Appellant and PW4 had gone sour resulting in the Appellant petitioning the PW4 to the Police as well as the giving to the PW1 a quit notice. It was on record that PW4 was the one that called PW1 for the arrest of the Appellant, while PW4 was at the Police station in answer to the petition against her by the Appellant. Exhibit R, a charge sheet in Charge No. MOR/20C/2016, a charge that was filed following a fight between the PW4 and the Appellant, was also tendered and admitted in evidence at the trial Court to further indicate the animosity between the PW4 and the Appellant. The Appellant also in her evidence on Record, stated that the PW4 at a time challenged and beat her, claiming to be the owner of the premises let to her by the Appellant on the alleged ground that she gave the Appellant the money to build the said premises: this piece of evidence was neither shaken under cross-examination nor controverted by the prosecution. It should be noted that the evidence of PW4 is coming after the strained landlord and tenant relationship between the Appellant and PW4. Can it be said therefore, in the light of the foregoing that there is no quarrel between the Appellant and PW4, and that the PW4 did not have some elements of malice while testifying against the Appellant? Again, the Appellant however, testified that she debriefed the PW3, Mr. Godwin O. Didimako, Esq. and after he was debriefed, the PW3 started acting for the PW1 and PW4 in respect of the same subject matter he has acted for the Appellant. Exhibit O which is a letter written by PW3 on behalf of the PW4 to the Appellant, was tendered in evidence and same was not controverted. PW3 did not actually controvert the piece of evidence that he was acting for PW1 and PW4 after he fell out with the Appellant though he tactically tried to deny the fact, by stating that he was acting only as an arbiter; however as can be gleaned from the record of appeal he acted for the said persons in respect of the same transaction or subject matter over which he had earlier acted for the Appellant.

Suffice it to say that it is against the Rules of professional ethics for a Counsel who has earlier acted for a party as counsel and solicitor in a subject matter to start acting for the opposing party over the same transaction or subject matter. Naturally, a counsel or solicitor will protect the interest of his or her client whom he or she is presently acting for or representing. It is common sense and natural that in the circumstances, PW3 has to protect the interest of his new found clients, PW1 and PW4.

A tainted witness as held in the case of Akalonu vs State (2005) Vol. 4 LRCNCC 123 at 130 (a case relied upon by the lower Court) is one who is an accomplice or who by the evidence he gives has his own interest or purpose to serve and as a result has a tendency to cover up the true facts of the case.

In the light of the above reasons, even though the evidence of the PW3 and PW4 might be relevant (whether true or not) as opined by the lower Court in affirming the decision of the trial Magistrate Court, the circumstances surrounding the testimonies of PW3 and PW4 called for caution in ascribing probative value to the evidence of the said witnesses; the circumstances created a lingering doubt in the prosecution’s case thus, the lower Court’s affirmation of the PW3 and PW4 evidence contained in the printed record, and affirmation of the trial Magistrate Court’s decision as to the truthfulness of the said witnesses was perverse. See: Nafiu Rabiu vs. The State (1981) 2 NCLR 29 at 313; Watt or Thomas v. Thomas (1947) 1 All ER cited in Fatoyinbo v Williams (1956) 1 FSC 87.

An appellate Court will generally defer to the conclusion of the trial Judge or Magistrate as to which of the witnesses are trustworthy. See: Ozigbo v. Commissioner of Police (1976) 2 SC 67.

The PW3 and PW4 had the tendency to cover up the true facts of the case, as a result of the fall out between them and the PW1 and I so hold.

Counsel for the Appellant submitted that the prosecution did not amend their charge to reflect the current state of things being that before the filing of the charge the Appellant had already paid a huge part of the amount of the sum in dispute. I disagree with the Appellant’s Counsel on this submission; the issue as to whether the Appellant at a time obtained the said sum under false pretence as alleged in the Charge sheet can be taken without the prosecution amending the charge to reflect the fact that the Appellant has paid part of the money. Again, Appellant’s Counsel contended that while the charge against the Appellant is that she obtained the sum of N1,200 000.00 from PW1 sometime in 2012, the evidence of the prosecution in support of the Charge showed that all the money (Exhibits C1 to C6) paid by the PW1 to the Appellant were all made in the year 2013. Appellant’s Counsel thus, posits that it is trite principle of law that where a charge is at variance with the evidence led, same collapses and it would be unsafe for any reasonable tribunal to convict a defendant on such a charge. Onyesanmi J Akinlemibola vs. Commissioner of Police (1976) 1 All NLR 3492.

The Respondent’s Counsel in response to this submission contended that an accused person can in law be convicted on a lesser offence. Respectfully, the submission of the Respondent’s above in response to the contention of the Appellant’s Counsel as to the prosecution’s evidence being at variance with the charge is not the position of the law in the circumstances of this case. The charge at page 6 of the Record of Appeal reads thus:
“That you Anna Ekakite ‘F’ sometime in the year 2012 at Orhuwhorun Town in Udu Magisterial District did fraudulently obtain the sum of One Million, Two Hundred Thousand Naira only … from one Mrs. Betty Eduba ‘F’ under the pretence of renting out stores to her which you know to be false … committed an offence contrary to Section 418…”

The testimonies of the prosecution witnesses against the Appellant as rightly pointed out by Appellant’s Counsel is that she obtained the sum of N1,200,000.00 from PW1 sometime in 2012, the evidence of the prosecution in support of the Charge showed that all the money (Exhibits C1 to C6) paid by the PW1 to the Appellant were all made in the year 2013: The charge thus, presupposes an alleged crime which the Appellant is yet to have allegedly committed in view of the above evidence of the prosecution. The charge is therefore, fundamentally defective, same not being amended by the prosecution even up till the judgment, could the prosecution be said to have proved an allegation of crime as per the charge sheet in view of the evidence on record? The answer is no. The evidence of the prosecution is at variance with the Charge and the conviction of the Appellant based on that charge as it is without amendment cannot also hold.

In the light of the above reasonings, it is crystal clear that the Appellant did not intend to and did not obtain the sum of N1,200,000.00 from Betty Eduba, PW1, under false pretence contrary to Section 418 of the Criminal Code Law Cap. C.21 Vol. 1 Laws of Delta State and punishable Section 419 of the Criminal Code Law Cap. C.21 Vol. 1 Laws. This case is purely a failed contract or breach of contract where the PW1 could have sought redress under the civil law which even from the evidence on record, PW1 did institute a civil suit against the Appellant. More so, the charge against the Appellant is fundamentally defective being at variance with the evidence on record, the Respondent had not proved its case beyond reasonable doubt at the trial Magistrate Court and the lower Court was not right in affirming the trial Magistrate Court’s decision convicting and sentencing the Appellant to one month’s imprisonment.

Accordingly, the appeal is allowed and the judgment of the lower Court, High Court of the Delta State delivered on 11/6/2020 in Suit No. OUHC/3CA/2017 Per Justice C. E. Achilefu (Mrs) wherein she affirmed the decision of the trial Magistrate Court, Orhuwhorun, Delta State delivered on 18/7/2018 in Charge No. MOOR/130/2016 (COP vs. Anna Ekakitie) is set aside and the Appellant is hereby discharged and acquitted and the sentence of the Appellant to one month’s imprisonment is quashed.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the judgment of my learned brother, MOHAMMED AMBI-USI DANJUMA, PJCA. I agree that the appeal has merit. I too allow the appeal. I abide by the consequential orders made therein.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read in advance, the judgment of my learned brother MOHAMMED AMBI-USI DANJUMA, JCA.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I too hold that the appeal has merit and I allow the same.

I abide by all consequential order(s) in the lead judgment.

Appearances:

S. O. Sabuke, Esq, For Appellant(s)

E. O. Aghoja, (Mrs) (Assistant Director, Ministry of Justice, Asaba, Delta State) For Respondent(s)