F.R.N. v. MGBOEMENA (2020)

F.R.N. v. MGBOEMENA

(2020)LCN/14035(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Friday, March 20, 2020

CA/AK/214C/2017

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

OBIORA MGBOEMENA RESPONDENT(S)

RATIO

WHETHER OR NOT NON-COMPLIANCE WITH RULES OF COURT IS AN IRREGULARITY THAT INVALIDATES THE PROCEEDINGS

The law is well settled that non-compliance with Rules of Court is primarily an irregularity which does not prima facie invalidate the proceedings. See JULIUS ENAKHIMION V EDO TRANSPORT SERVICES (2006) AFWLR, PT 334, 1882; MGBEAHURUIKE V MGBEAHURUIKE (2017) LPELR – 42434 (CA)CES (2006) AFWLR, PT 334, 1882 AT 1904-1905; HAJIA AISHA BUHARI & ORS V HADDY SMART NIG LTD & ANOR (2009) LPELR – 8362 (CA). What is more by ORDER 21(3)(1) & (2) of the Rules of Court, 2016 a party can waive such non-compliance with the Rules of Court, 2016. PER MAHMOUD, J.C.A.

ESSENTIAL ELEMENTS OF THE OFFENCE OF OBTAINING BY FALSE PRETENCES

I find that in answering this question or these two sub issues, it is important to consider what the essential elements are in the offence of obtaining by false pretences with which the respondent was charged and tried. To prove obtaining by false pretences, the following seven ingredients must be established by the prosecution:-
a) That there was pretence.
b) That the pretence emanated from the accused person
c) That it was false.
d) That there was intention to defraud
e) That the accused person knew of its falsity.
f) That the thing is capable of being stolen.
g) That the accused person induced the owner to transfer his whole interest in the property. See FRN V AMAH (2016) AFWLR, PT 818, 889 AT 909; SEGUN ADELODUN V FRN (2017) AFWLR, PT 912, 726, IKPA V STATE (2017) LPELR -42590 (SC) and ONYEKUMNARU V FRN (2018) LPELR – 46040 (CA). PER MAHMOUD, J.C.A.

DEFINITION OF “FALSE PRETENCE”

‘False pretence’ is defined by Section 20 of the ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT, 2006 as:
“a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter, of fact or law, either past or present which representation is false in fact or law and which the person making it knows to be false or does not believe it to be true.”
ENUKORA V FRN (2018) LPELR -43822 (SC); IFEANYI V FRN (2018) LPELR, 43941 (SC) and FRN V EGBEFOH (2019). PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The Respondent, accused at the lower Court was arraigned in the Akure Division of the Federal High Court on a one count charge of obtaining by false pretences, electronics valued at N1,557,000 from the complainant, PW1 in the trial in the Court below. The Respondent, Mr Obiora Mgboemena was charged and tried under SECTION (1)(1)(a), (b) and (c) and punishable under SECTION 1 (3) of the Advance Fee and Other Fraud Related Offences Act, Cap A6, Laws of the Federation, 2004.

In proof of its case, the prosecution called two witnesses and tendered nine exhibits marked as Exhibits A-K1 respectively. The Respondent, in his defence testified in his own behalf called one other witness and tendered six Exhibits marked as Exhibits M-R.

The case of the prosecution/appellant was that the complainant PW1, a businessman dealing in electronics was approached by the accused/respondent around the 10th of September 2010. The accused pleaded with PW1 to be supplying him electronics like fans, standing fans and orbit fans.

They agreed on the terms of the business which included payment within 9 days

of the supply of the goods. The accused was given the first consignment of goods as agreed and met the condition of payment. The complainant supplied more goods to the Respondent who fell back in his payment leaving an unpaid amount of N2,950,900. The accused pleaded for time and was given two weeks within which to repay the balance. During this period the accused was able to pay N1,218,900. Thereafter on the 31/12/2012, the complainant demanded for the balance of money for the items already sold and a return of the unsold goods. The accused returned the unsold goods to the complainant and requested for time to pay off the balance. The accused was issued with a receipt, Exhibit A evidencing this transaction. When the accused persisted in his failure to pay the outstanding balance of N1,557,000, the complainant/PW1, petitioned to the Commissioner of Police of the 14/03/2011. This petition resulted in the arraignment and trial of the accused/respondent.

The case of the accused/respondent was that he entered into an agreement with the complainant for the supply of Lucky and Fantastic standing fans. The complainant supplied these items and the accused sold

and paid the money. The accused/respondent stated that his shop was burgled around end of October 2010 in which he lost N1,950,000. He said he reported this case to the Police and the complainant. By this time the respondent was collecting goods from the complainant on credit. That as a result of the burglary, he was not able to pay for the last supply. The accused/respondent stated that he tried all means to resolve the matter without success. That he was invited to Akure by the SCIB who gave him three weeks to settle the debt. The accused/respondent said he offered to sell his uncompleted building to the complainant in settlement of his debt but the complainant was not interested. The accused/respondent denied the allegation that he obtained the goods fraudulent or that he sold the goods and converted the proceeds to his personal use.

At the conclusion of hearing, the learned trial Judge, Hon. Justice I. M. Sani in a considered judgment delivered on the 28/05/2014 discharged and acquitted the respondent. Dissatisfied with this decision, the prosecution very surprisingly and quite unprecedented, by a Notice of Appeal dated and filed on the 14/07/2014

appealed to this Court on five grounds as follows:
GROUND 1
The learned trial judge erred in law when he held that “the prosecution has failed having regard to facts and circumstances of this case to prove the essential ingredients of the offence charged.”
PARTICULARS OF ERROR
It is evidence of PW1 that was uncontroverted by the accused that the accused deceitfully and with intent to defraud made representation to PW1 to supply electric fans to him (the accused) to sell to his customer who are in need of the goods and that he (the accused) will pay or return the money when he sold the goods within 2 weeks.
i. It is in evidence before the Court that as a result of this false representation that emanated from the accused to PW1 which were false to the knowledge of the accused and which PW1 believed to be true induced PW1 to supply the electric fans to the accused which were listed in Exhibit ‘A’ worth N1,732,000.00 (one million seven hundred and thirty two thousand naira only) on 17/12/2010.
ii. That the accused under false pretence obtained the electric fans that were listed in the charge worth

N1,577,000.00 (one million five hundred and seventy seven thousand naira only) which the accused said that he had sold.
iii. It is in evidence that the accused has not returned the goods or paid for the goods which the accused had obtained under the false pretence.
iv. The Exhibit ‘B’ before the Court substantially reinforces and prove obviously that the accused from the beginning of the act had the intention to defraud PW1 the victim of the fraud.
GROUND 2
The learned trial judge erred in law when he held that “there was no misstatement which in law would amount to pretence having in mind the nature of the transaction between the accused and PW1.”
PARTICULARS OF ERROR
i. The accused with the knowledge and believe in the existing facts went to PW1 and falsely represented to the PW1 to supply electric fans to him (the accused) to sell and pay or bring the money to PW1.
ii. That the accused sold the electric fans but did not return or pay the money to PW1.
iii. That the accused stated that sometimes on 10th December 2009 about the sum of N32,500:00 (thirty two thousand five hundred naira) was

mysteriously lost by our client’s (the accused) sales boy from his pocket after the money you (PW1) gave us was mixed with his own money. But when the alert was raised the money ‘resurrected’ into his pocket after some minutes.
iv. It is in evidence that the accused stated that on 29th September 2009 the sum of N1,950,000:00 (one million nine hundred and fifty thousand Naira) was stolen from our client’s shop despite the fact that we could not trace any physical burglary but except that you (PW1) gave us N15,000:00 (fifteen thousand naira) which was mixed with our client’s (the accused) money.
v. The accused further recoiled and repolished his false pretence and said that his shop was burgled maybe in October or November 2010 and that the sum of N1, 950, 000:00 (one million nine hundred and fifty thousand naira) was stolen.
vi. The accused in furtherance to his fraudulent schemes and plans to defraud PW1 in a letter he wrote through his lawyer Barr. Adefope Ajayi & Co. stated that PW1 is using black magic and voodooism to vamoose his money.
vii. That he (the accused) is not in a position to pay any amount

of money to you (PW1 the victim of the fraud) instead you (PW1) are hereby requested to fashion out a compensation package for him (the accused).
viii. Obviously they are listless misstatements that amount to pretences which was the accused arranged plan and instruments that he employed and used to defraud PW1 and which in the other hand influenced the mind of the trial judge to arrived at erroneous decisions and judgment.
GROUND 3
The learned trial judge erred in law when he held that “it was purely a commercial transaction and the failure to pay within the stipulated time does not amount to crime.”
PARTICULARS OF ERROR
(i) It is the submission of learned counsel for prosecution that it is not a defence that the property obtained was on credit and that it is to be paid is also not an excuse to a charge of obtaining property (the electric fan) by false pretence.
(ii) The fact that there is existence of contract between the accused and PW1 does not exonerate the accused from the offence of obtaining of ‘electric fans by the accused’ under false pretence in conformity with that contract.
(iii) That it

is not an excuse or a defence to a charge of obtaining property by false pretences that the matter is a commercial transaction and therefore cannot be punished as charged under the Act.
(iv) The accused under false pretence used commercial or business activities as an arranged instruments and tools to defraud PW1.
GROUND 4
The learned trial judge erred in law when he held that “the prosecution has failed to prove the case against the accused person beyond all reasonable doubt.”
PARTICULARS OF ERROR
(i) There is evidence on the record that the accused obtaining goods from PW1 under a false representation to pay for the goods after its sale or return the goods within two week if he fails to sell it.
(ii) There is evidence on record that the accused has neither paid for the goods nor returned the goods unsold as the accused represented.
GROUND 5
The trial judge failed to properly evaluate the evidence before the Court to arrive at a just conclusion of the case.

WHEREOF the appellant sought the order of this Court allowing the appeal, setting aside the decision of the trial Court, convicting the appellant and

making an order for compensation of N1,557,000 in favour of the complainant against the respondent.

In prosecuting its appeal, the appellant filed its brief of argument on the 29/09/2015. Same was deemed duly filed on the 14/02/2018. They also filed a reply to the respondent’s preliminary objection on the 16/05/2018. Same was deemed as properly filed on the 20/06/2019.

In arguing the appeal, MR. K. A. Olatunji of counsel for the appellant, adopted both processes as their legal arguments in support of the appeal. In it the appellant formulated four issues for determination of the Court:-
1. Whether mis-statement vis-a-vis intention amounting to false pretence is deducible from a written document.
2. Whether a property obtained or its delivery induced by false pretence through the medium of a contract amount to obtaining such property by false pretence.
3. Whether the lower trial Court is right to hold that the prosecution has failed to prove the case against the accused person beyond all reasonable doubt after the prosecution has sufficiently proved its case against the accused/respondent beyond reasonable doubt.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Whether or not the lower trial Court has occasioned a miscarriage of justice by shutting its eyes to the facts and evidence before it and failed to asses and properly evaluate the evidence before arriving at the conclusion of the case.This brief flouts ORDER 19(3)(4) of the Rules of Court, 2016 in that it does not provide or conclude with a numbered summary of the points raised and the reasons upon which the argument is founded. What this means is that I will not constrain myself to summarize this 28 page brief, learned counsel having failed to do so in compliance with the Rules of Court. (ORDER 19(3)(4). Like I have stated elsewhere, it is important to provide this numbered summary in a brief not merely to comply with the Rules of Court but more importantly, to at a glance give or get a bird’s eye view of the arguments in the brief. Suffice it to state at this stage however that the submissions of counsel are as contained in the brief. I will make reference to them if and when required in the course of this judgment.
In reaction to the appellant’s brief the Respondent filed, firstly a Notice of Preliminary Objection on the

21/03/2018, pursuant to ORDER 10(1) of the Rules of Court 2016. For the avoidance of doubt, I reproduce the 3 point objection:-
1. The Notice of Appeal is not competent and it is fundamentally defective and thereby rendering this appeal incompetent.
AND TAKE NOTICE that the grounds of the said objection are as follows:-
1. The Notice of Appeal does not comply with the mandatory provisions of Order 17 Rule 3 of the Court of Appeal Rules, 2016
2. The Notice of Appeal does not comply with Criminal Form 5, that is, the Notice of Appeal by prosecutor in respect of criminal appeal.
3. The prosecutor did not state the Law which gives him a right of appeal.

The ground for the objection is whether the notice of appeal on pages 71-77 of the records is competent.

The Respondent’s Brief was filed on the 26/03/2018 but deemed on the 20/06/2019. In arguing the appeal, MR D. O. Adeniyi of Counsel for the Respondent adopted the brief as their legal arguments in opposition to the appeal. In it Counsel formulated two issues for determination of the Court:-
1. Whether the Notice of Appeal was competent going by the provision of Order

17 Rule 3 of the Court of Appeal Rules, 2016 which is in pari material with Order 17 Rule 3(SIC) of the Court of Appeal, Rules 2011, the Rules in force at the time the Notice of Appeal was filed.
2. Whether the trial Court was right to have discharged and acquitted the respondent on the ground that the prosecutor/appellant has failed to proved its case against the respondent beyond reasonable doubt.

In arguing the first issue by way of preliminary objection as to the competence of the Notice of Appeal, MR Adeniyi submitted that this Notice of Appeal was filed under the 2011 Rules of Court. That ORDER 17(3) of the said Rules is in pari material with ORDER 10(1) of the Court of Appeal Rules, 2016 under which the Preliminary Objection was filed. In adopting his argument under the Notice of Preliminary Objection, Counsel submitted that ORDER 17(3)(1) of the Rules of Court 2011 provides in the second schedule the form of Notice to be used by the prosecutor which is what the instant appellant is. That form 5 is the appropriate form. That instead of using this form and complying with ORDER 17(3)(2) of the Rules of Court 2011, the appellant used form 3 of

the First Schedule which deals with civil appeals. That as a consequence the Notice of Appeal filed by the appellant is incompetent which has rendered the whole appeal incompetent. Counsel urged the Court to strike out the appeal for being incompetent.

On issue 2, Mr Adeniyi submitted that by SECTION 135 of the Evidence Act, 2011, the burden is on the prosecution to prove its case beyond reasonable doubt. Counsel referred to the case of APUGO V FRN (2017) 8 NWLR, PT 1568, 416 AT 451 to submit that to secure a conviction for Advance Fee Fraud for which the respondent was charged and tried, the prosecution has to prove the following seven ingredients:-
a) That there is pretence.
b) That the pretence emanated from the accused person.
c) That the pretence was false
d) That the accused knew of his (sic) falsity or did not believe in its truth.
e) That there was intention to defraud.
f) That the thing is capable of being stolen.
g) That the accused person induce the owner to part with it.

Counsel submitted that at best item (f) “that the thing is capable of being stolen” is the only ingredient that has been

proved. That what the evidence shows is that there was a credit sale of electronics to the respondent by the complainant. That failure to pay for goods purchased on credit does not and cannot amount to a crime.

Counsel contended that the only remedy open to PW1 is to take out a civil claim against the respondent for the payment of the outstanding balance. Counsel urged the Court to resolve this issue in favour of the respondent. Counsel further urged the Court to dismiss this appeal and affirm the judgment of the trial Court discharging and acquitting the appellant. The respondent also sought an order of Court for the release of N400,000 deposited with the registry of the trial Court, in fulfillment of condition for bail which amount has been allegedly transmitted to this Court.

In his reply to the preliminary objection, Mr Olatunji submitted that by ORDER 4 (10) of the Rules of Court, 2016, an appeal shall be deemed to have been entered when the record of proceedings of the Court below has been received in the Registry of the Court within the time prescribed by the Rules. Counsel referred to the cases of VIBEIKO (NIG) LTD V NDIC (2003) FWLR, PT

179, 1230 AT 1235-1236, RATIO I; EZE OKAFOR V EZEILO (1999) 9 NWLR, PT 619, 513 and AKINSIPE V ADETOROYE (1999) NWLR, PT 617, 161. Counsel also submitted that the Notice of Appeal contained at pages 71-77 of the records was duly signed by the appellant and is therefore not fundamentally defective. Counsel referred to the case of MOBIL OIL NIGERIA UNLTD V RABIU (2003) FWLR, PT 149, 1546, RATIOS 2 & 3. Mr Olatunji further submitted that a Notice of Appeal is rendered incompetent when the grounds of appeal and not the form of the Notice of Appeal are incompetent. Counsel referred to the cases of BAKULE V TANEREWA (1995) 3 NWLR, PT 380, 728; AGBAKA V AMADI (1998) 11 NWLR, PT 572, 16, BUZU V GARABI (2000) 13 NWLR, PT 684, 228 and NSIRIM V NSIRIM (1990) NWLR, PT 138, 285.

Counsel contended that the complaint of the respondent in this objection is about form and not substance. That the form of a Court process should not be allowed to strangulate the justice of the matter. That form 5 of the Second Schedule to the Court of Appeal Rules 2016 is just a precedent to guide prospective appellants. That once there is substantial compliance, a little omission or

variation in the form 5 should not be allowed to render the Notice of Appeal incompetent. To do so counsel argued will amount to unnecessary adherence to technicalities. This according to him is contrary to the current direction of our Courts which is to do substantial justice and move away from adherence to technicalities. According to counsel matters should be decided on the merits and not on unnecessary technicalities. Counsel referred to the cases of BRITISH AMERICAN INSURANCE CO LTD V EDEMA SILLO (1993) 2 NWLR, PT 277, 570-637 RATIO 4; OKONJO V ODJE (1985) NWLR, 10 SC, 265, TORTI V UKPABI (1984) 1 SC NLR, 214 and STATE V GWONTO (1983) 1 SCNLR, 142.

Counsel referred to IKECHUKWU V NWOYE & ANOR (2013) 12 SCM (PT. 2), and ORDER 10(1)&(2) of the Supreme Court Rules to contend that even the Supreme Court can waive non-compliance with its Rules in the interest of justice. He urged the Court to dismiss the objection and uphold the Notice of Appeal.

I should first deal with the Preliminary Objection as it challenges the competence of the Notice of Appeal, the originating process in this case. By ORDER 4(10) of the Rules of Court 2016, an appeal

shall be deemed to have been entered in the Court, when the Record of proceedings in the Court below has been received in the Registry of the Court within the time prescribed by the Rules. There is no dispute in this matter that an appeal was entered. I therefore do not need to dwell on it. This is a criminal appeal. ORDER 17 of the Rules of Court, 2016 regulates criminal appeals. It provides in Rule 4(1) that every notice of appeal shall be signed by the appellant himself or his legal practitioner. Page 77 of the records shows that the Notice of Appeal was signed by Aderemi Ajibola, counsel to the appellant. The Notice was filed in the lower Court on the 4/07/2014. This is in compliance with ORDER 17(4)(7) which provides that an appeal shall be deemed to have been brought when the notice of appeal has been filed in the registry of the Court below. By ORDER 17(3)(1) of the Rules of Court, 2016, a notice of appeal shall be given as in FORM 5 in respect of appeal by prosecutor as in this case. Criminal Form 5 is the notice of appeal or application for leave to appeal, pursuant to ORDER 17(3) of the Rules of Court, 2016. From the Form what an appellant who is a

prosecutor is required to show includes, date of trial, what Court tried and passed the sentence, in what Court appeal heard and the sentence, etc. From pages 71-77 containing the Notice of Appeal all these information are contained in the Notice of Appeal filed by the appellant. The complaint of the appellant as I understand it is that the appellant failed to answer the question provided for by ORDER 17(3)(1) of the Rules of Court, 2016. The respondent never pointed out what these questions are and how failure to answer them has negatively affected the appellant’s appeal. I must say that the complaint is only as to form and not substance. In my humble view, the failure of the appellant to answer the questions as alleged cannot render the Notice of Appeal incompetent. The Notice of Appeal is validly signed by the appellant’s counsel. It contains valid grounds of appeal and it is in substantial compliance with CRIMINAL FORM 5. The law is well settled that non-compliance with Rules of Court is primarily an irregularity which does not prima facie invalidate the proceedings. See JULIUS ENAKHIMION V EDO TRANSPORT SERVICES (2006) AFWLR, PT 334, 1882;

MGBEAHURUIKE V MGBEAHURUIKE (2017) LPELR – 42434 (CA)CES (2006) AFWLR, PT 334, 1882 AT 1904-1905; HAJIA AISHA BUHARI & ORS V HADDY SMART NIG LTD & ANOR (2009) LPELR – 8362 (CA). What is more by ORDER 21(3)(1) & (2) of the Rules of Court, 2016 a party can waive such non-compliance with the Rules of Court, 2016.

On the whole therefore I find that this Preliminary Objection fails. It is accordingly dismissed. The Appellant’s Notice of Appeal which was filed within the statutory period of three months and premised on arguable grounds of appeal is taken as competent upon which the appellant’s appeal is to be argued.

This leaves us then with the second issue raised by the respondent: whether the trial Court was right to have discharged and acquitted the respondent? I find that this issue is all encompassing and embraces all the four issues raised by the appellant. I will therefore determine this appeal on the respondent’s sole issue, using the appellant’s four issues as sub issues.

I have gone through the records as well as the submissions of both counsel in this appeal. In answering sub issues (1) and

(2) together, I find that in answering this question or these two sub issues, it is important to consider what the essential elements are in the offence of obtaining by false pretences with which the respondent was charged and tried. To prove obtaining by false pretences, the following seven ingredients must be established by the prosecution:-
a) That there was pretence.
b) That the pretence emanated from the accused person
c) That it was false.
d) That there was intention to defraud
e) That the accused person knew of its falsity.
f) That the thing is capable of being stolen.
g) That the accused person induced the owner to transfer his whole interest in the property. See FRN V AMAH (2016) AFWLR, PT 818, 889 AT 909; SEGUN ADELODUN V FRN (2017) AFWLR, PT 912, 726, IKPA V STATE (2017) LPELR -42590 (SC) and ONYEKUMNARU V FRN (2018) LPELR – 46040 (CA).

Counsel referred to Exhibit ‘B’ to feebly submit that the respondent fraudulently obtained electric fans on credit from PW1 on the false pretence that he would pay the money after selling them. I have gone through Exhibit B. For the avoidance of doubt, I

reproduce the main content in the body of the exhibit:
“You would recall our client has been a thriving businessman all along to the extent that he had at many occasions rendered assistance to you to boost your own business.
You would also recall that our client’s business fortune started to nose dive as a result of certain mysterious happenings that affected him and that could be traced to your mischevious, dishonest and crude means of money acquisition methods. Our client (sic) position is that only and only you could explain all the abracadabra ways you have been doing your magics and which has seriously affected his own business growth.
We wish to refresh your memory that sometimes on the 10th December 2009, about the sum of N32,500 was mysteriously lost by our client’s sale boy from his pocket after the money you gave us was mixed with his own money. But when the alert was raised the money “resurrected” in to his pockets after some minutes. On the 29th September, 2009, the sum of N1,950,000 was stolen from our client’s shop despite the fact that we could not trace any physical burglary but except that you

gave us N15,000 which was mixed with our client’s money. Our client wonder that each time you gave him goods on credit to sell, trouble would just come to the extent that the actual sale price not to talk of any profit would vanish as if there is a spirit within operating on your instructions.
Conclusion
As at today, our client could not be proud of N10,000.00 in his Bank Account. Everything has turned upside down for him. He could not even feed his family. As a result of listless calamities that have befallen our client, he is not in a position to pay any amount of money to you. Instead you are hereby requested to fashion out a compensation package for him.
Your threat to evacuate the goods in his shop should therefore be discountenanced with. If you fail, refuse and/or neglect to abide by this advice, we have been put on alert to employ all legal machineries to open the Pandora box relating to your occultic activities and the evils you have unleashed on the innocent citizens.
You are warned to keep off from our client in your own interest.”

With all due respect to the learned counsel to the appellant, I don’t see

anything in this document the meaning of which can be stretched to include false pretence on the part of the respondent and with the intention to defraud. At best Exhibit B is a threat to PW1 but definitely never a false pretence. ‘False pretence’ is defined by Section 20 of the ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT, 2006 as:
“a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter, of fact or law, either past or present which representation is false in fact or law and which the person making it knows to be false or does not believe it to be true.”
ENUKORA V FRN (2018) LPELR -43822 (SC); IFEANYI V FRN (2018) LPELR, 43941 (SC) and FRN V EGBEFOH (2019).
There is nothing in Exhibit B or the entire evidence of the prosecution in the trial Court that proves all or any of the ingredients of the offence of obtaining by false pretences save the ingredient that stipulates that the thing is capable of being stolen. It is not sufficient in a criminal trial to prove only one ingredient of the offence. All the ingredients have to be proved beyond reasonable doubt. In resolving

these two sub issues in favour of the Respondent therefore, I must stress that I am in total agreement with the learned trial judge that the prosecution failed to prove this offence against the respondent beyond reasonable doubt. Sub issue (3) seems to have been dealt with under sub issues (1) and (2). I will therefore not dwell on it. Suffice it to state that it is peasantry and beggars the question for the learned counsel to the appellant to play with the word “all” as if the learned trial judge was laying a different standard of proof by “prove beyond all reasonable doubt”. I have no hesitation in resolving this sub-issue against the appellant and in favour of the respondent.

On the last sub issue, which is whether or not the lower Court has occasioned a miscarriage of justice to the appellant by shutting its eyes to the facts and evidence before it, I find that learned counsel has copiously analysed the legal principles but failed woefully to marry those principles to the evidence before the Court. In the almost 14 pages of single spacing 10 or 12 font size submissions on this sub issue, I do not see anywhere counsel referred

to any evidence led by the prosecution that proves the ingredients of this offence beyond reasonable doubt; I see none.

It is significant that in criminal matters, it is more often the accused person who appeals and hardly the prosecution as in this case. I am shocked as to why the resources of the state should be utilized in this type of prosecution which is of no economic benefit to the nation. This is particularly troubling considering the amount involved, a meagre N1,557,000!!!

There is no doubt that prosecuting this appeal since 2014 has cost the state this amount ten times over. The police should concentrate on their core mandate of protecting life and property and not to take on frivolous matters of this nature more so on appeal. Having resolved all the four sub issues against the appellant, the respondent’s sole issue is of necessity resolved in his favour. Consequently this appeal fails. Same is accordingly dismissed. This is one instance that I wish I could have awarded punitive costs against the appellant and or his counsel for embarking on such a frivolous appeal!

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I endorse into to the reasoning

and conclusion by my learned brother, P. A. Mahmoud, JCA that this appeal be dismissed as lacking in merit.

There was certainly, no proof of the offence of obtaining by false pretences in the contractual transaction between the Appellant, herein and the complaint, which was breached in the repayment schedules thereof.

His Lordship, Mahmoud, JCA had so impressively and adroitly X-rayed the transaction vis-a-vis the aspect of crime as charged and found no correlation whatsoever. The bounden duty to prove the ingredients of the offence charged was not discharged, as the said transaction did not have any scintilla of crime disclosed and proved.

The decision to prosecute should not be a vendetta or “a mercenary play” to actuate the realization of obligations in failed, wobbling or failed private commercial transactions. Whilst the state shall ensure that it acts as the custodian of our moral values, to promote probity, it must not condescend into using the collective resources of men, materials and time to advance private commercial settlement of disputes; for that will be an abuse of power and a show of impartiality by the institution to whom,

by the Social Nudum Pactum (Social Contract) all men must be protected equally and private deals shall not be interfered with for that is the jurisprudential essence of the “State” as an institution.
Appeal dismissed.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: The lead judgment delivered by my learned brother, Patricia Ajuma Mahmoud, JCA was made available to me which I read and in agreement with the reasoning and conclusion arrived at by my noble lord. There is nothing useful to be added thereto.
The appeal is unmeritorious and accordingly dismissed as done in the lead judgment.

Appearances:

MR K. A OLATUNJI For Appellant(s)

MR D. O. ADENIYI For Respondent(s)