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FRN v. TALAL (2022)

FRN v. TALAL

(2022)LCN/16697(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, March 04, 2022

CA/A/230C/2016

Before Our Lordships:

Haruna Simon Tsammani Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Danlami Zama Senchi Justice of the Court of Appeal

Between

FEDERAL REPUBLIC OF NIGERIA APPELANT(S)

And

SHAHIMI TALAL RESPONDENT(S)

 

RATIO

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON UNTIL THE CONTRARY IS PROVED

Now, as constitutionally guaranteed by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is presumed to be innocent until the contrary is proved. That presumption of innocence therefore casts the burden on the prosecution to rebut that presumption which enures in favour of an accused person. To discharge the burden the prosecution must adduce cogent and credible evidence which establishes every essential element of the offence charged; and the scale of evidence must be such that proves the commission of the offence by the accused person beyond reasonable doubt. Therefore, if any one of the essential ingredients of the offence is not established by the evidence adduced at the trial, the charge has not been proved beyond reasonable doubt and the accused person will be entitled to an acquittal. See Onwe v. State (2018) 5 NWLR (Pt. 1612) 217; Madu v. State (2001) 3 NWLR (Pt. 700) 230 and Agu v. State (2017) 10 NWLR (Pt. 1573) 171. PER TSAMMANI, JCA.

THE STANDARD OF PROOF IN CRIMINAL MATTERS

As stated earlier, the standard of proof to be attained and discharged is that beyond reasonable doubt. As determined by the Supreme Court, proof beyond reasonable doubt does not mean proof beyond all doubt, or any shadow of doubt. It only means that the evidence adduced by the prosecution must establish each and every ingredient of the offence charged, conclusively. The evidence adduced must be compelling and conclusive. The idiosyncrasies of the trial Judge must not be allowed to becloud his sense of justice. Therefore, once the evidence adduced is compelling and points conclusively that the accused committed the offence, the Court must convict, otherwise, the accused should be acquitted. See Oseni v. State (2012) 5 NWLR (pt. 1293) 351; The State v. Ali Ahmed (2020) LPELR – 49497 (SC) and Dairo v. State (2018) 7 NWLR (Pt. 1619) 399. I therefore understand the law to mean that, when all the essential elements of the offence charged have been established by the prosecution, the charge is said to be proved beyond reasonable doubt. PER TSAMMANI, JCA.

THE POSITION OF LAW ON THE PROSECUTION DISCHARGING THE BURDEN OF PROOF

Now, as constitutionally guaranteed by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is presumed to be innocent until the contrary is proved. That presumption of innocence therefore casts the burden on the prosecution to rebut that presumption which enures in favour of an accused person. To discharge the burden the prosecution must adduce cogent and credible evidence which establishes every essential element of the offence charged; and the scale of evidence must be such that proves the commission of the offence by the accused person beyond reasonable doubt. Therefore, if any one of the essential ingredients of the offence is not established by the evidence adduced at the trial, the charge has not been proved beyond reasonable doubt and the accused person will be entitled to an acquittal. See Onwe v. State (2018) 5 NWLR (Pt. 1612) 217; Madu v. State (2001) 3 NWLR (Pt. 700) 230 and Agu v. State (2017) 10 NWLR (Pt. 1573) 171. PER TSAMMANI, JCA.

THE MEANING OF PROOF BEYOND REASONABLE DOUBT

As stated earlier, the standard of proof to be attained and discharged is that beyond reasonable doubt. As determined by the Supreme Court, proof beyond reasonable doubt does not mean proof beyond all doubt, or any shadow of doubt. It only means that the evidence adduced by the prosecution must establish each and every ingredient of the offence charged, conclusively. The evidence adduced must be compelling and conclusive. The idiosyncrasies of the trial Judge must not be allowed to becloud his sense of justice. Therefore, once the evidence adduced is compelling and points conclusively that the accused committed the offence, the Court must convict, otherwise, the accused should be acquitted. See Oseni v. State (2012) 5 NWLR (pt. 1293) 351; The State v. Ali Ahmed (2020) LPELR – 49497 (SC) and Dairo v. State (2018) 7 NWLR (Pt. 1619) 399. I therefore understand the law to mean that, when all the essential elements of the offence charged have been established by the prosecution, the charge is said to be proved beyond reasonable doubt.

The prosecution may embark on the onerous duty of rebutting the presumption cast on them, by any one or more, or all of the following ways:
a. By the direct testimony of eye witness(es) who saw when the offence was committed.
b. By the confessional statement of the accused which is voluntary, direct and unambiguous, showing that the accused has admitted to have committed the offence charged.
c. By circumstantial evidence which show compulsively that the accused and no other person committed the offence charged.
​As stated earlier, the prosecution may rely on any one or more of the above stated ways to prove the guilt of the accused. See Emeka v. State (2001) LPELR-1125 (SC); Segun Babajide v. The State (2020) LPELR-51218 (CA) and Mindi v. The State (2020) LPELR-52897 (SC). 
PER TSAMMANI, JCA.

THE ESSENTIAL INGREDIENTS TO ESTABLISH THE OFFENSE OF RECEIVING BY FALSE PRETENCE

Now, Section 1 (i) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 stipulates that:
“I(i) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud –
a. Obtains, from any other person, in Nigeria or any other country, for himself or any other person; or
b. …
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”.
It therefore means that for the prosecution to succeed, they have to adduce credible evidence to prove the following facts beyond reasonable doubt:
a. that the accused made a pretence (representation) to a person or complainant;
b. that the pretence or representation was to obtain property for himself or any other person;
c. that the pretence (representation) was false; and
d. that the pretence (representation) was with the intent to defraud;
e. whether or not the property is obtained or the delivery thereof is induced through a contract induced by the false pretence is not a defence.
It is required by law, that all the above stated ingredients of the charge be established by credible evidence beyond reasonable doubt, before a conviction can be sustained. See Bello v. FRN (2018) LPELR-43688; Confido Consult Services Ltd. v. FRN (2018) LPELR-43676 (CA) and Amadi v. FRN (2008) 18 NWR (Pt. 1119) 259. PER TSAMMANI, JCA.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Kogi State High Court of Justice, sitting in Lokoja, delivered on the 16th day of July, 2013 in Suit No: HC/KK/001C/2013.

Before the trial High Court, the Respondent was arraigned on a two (2) counts charge of obtaining property by false pretence, contrary to Section 1 (1)(a) punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006; and issuance of dud cheque punishable under Section 1(b)(i) of the dishonoured cheques (Offences) Act, Cap. D11, Laws of the Federation of Nigeria, 2004. The case leading to the arraignment and trial of the Respondent in the trial Court has been adequately captioned at pages 3-4 (paras. 2.1-2.2) of the Appellant’s Brief of Arguments as follows:
“The Respondent is the Director and the alter ego of two companies namely: Lama Cocoa Processing (Nig.) Limited and Sharu Dynamics International Limited. The Respondent represented to Kinrin Dele (PW1) and Arogundade Adedayo (PW2) that Lama Cocoa Processing (Nig.) Limited was into the business of cocoa processing and invited thereto invest in the cocoa processing business. Consequently, the duo invested in the Respondent’s company business pursuant to which Memorandum of Understanding (MOU) were drawn up between the parties. The MOU between Kinrin Dele and Lama Cocoa Processing (Nig.) Limited and the accused person is exhibit P1. Kinrin Dele (PW1) invested a total sum of Ten Million Naira which he paid partly by cash to the Respondent and partly by deposit into the bank account of the Respondent’s company – Sharu Dynamics International Limited. By the terms of the MOU, Lama Cocoa Processing (Nig.) Limited was to pay 10% of the capital money invested by PW1 every month to PW1 as interest on termination of the contract. The Respondent paid the agreed interest for only one month and defaulted, consequent upon which the contract was terminated by the parties in 2008.
On termination of the contract, PW1 demanded for the refund of his capital sum of Ten Million Naira and the Respondent issued him Sharu Dynamics International Limited’s Cheque for Eight Million, Five Hundred Thousand Naira as part payment. On representation of the cheque by PW1 the cheque bounced twice owing to insufficient fund in the account of the drawer. PW2 who also invested the sum of Eleven Million Naira and to whom the Respondent similarly defaulted in the payment of interest and capital on termination of the contract and also to whom the Respondent similarly issued a bounced cheque, teamed up with PW1 and they both wrote a petition to the EFCC in Abuja. The Petition is exhibit P6.
On receipt of the Petition, the EFCC office in Abuja conducted investigation into the allegation. At the end of the investigation, the Respondent was arraigned at the High Court of Kogi State sitting in Lokoja on two counts charge of Obtaining Property by False Pretence, and issuance of dud cheque. At the end of the trial, the Court discharged and acquitted the Respondent on the 2 counts charge, hence this appeal”.

​At the trial, the prosecution, now Appellant, called four (4) witnesses and tendered 12 exhibits which were admitted in evidence as Exhibits P1, P2, P6, P7, P8, P9, P9(a)(1-23), P10(1-29), P11, P12, P14 and P15 respectively. The Respondent testified in his defence but called no witness. He however tendered five (5) exhibits marked as exhibits D1A, D1B, D1C, D1D and D2 respectively. At the close of evidence, counsel filed and exchanged written addresses, and in a considered judgment delivered on the 16/7/2015, the learned trial Judge discharged and acquitted the Respondent. Being dissatisfied, the Appellant has filed this appeal.

The Notice of Appeal consisting of four (4) Grounds of Appeal was filed on 30/9/2015. The Appellant then compiled and transmitted a record of appeal which was deemed as having been transmitted and served on the 14/2/2017. An Appellant’s Brief of Arguments was filed on the 21/2/2017. Therein, five issues were raised for determination as follows:
i. Whether the learned trial Judge was right in holding that the prosecution has failed to prove that the pretence made by the accused person/Respondent to PW1 was false, despite the weight of evidence before the Court.
ii. Whether the learned trial Judge was right in holding that the prosecution has failed to prove that the accused person/Respondent knew that the pretence was false, despite the weight of evidence before the Court.
iii. Whether the learned trial Judge was right in holding that the prosecution failed to prove that there was an intent to defraud PW1 by the accused person/Respondent, despite the weight of evidence before the Court.
iv. Whether in a charge of issuance of dud cheque, the offence is not proved beyond reasonable doubt if all the ingredients of the offence have been established by the prosecution.
v. Whether the learned trial Judge was right in holding that doubt exist as to the reason why the cheque was not honoured despite the unimpeached oral testimonies of both the prosecution and defence witnesses, and the documentary exhibit before the Court.

Now, it should be noted that the Notice of Appeal contains four (4) grounds of appeal. It is the law that, a party should not proliferate issues. In other words, a party may formulate issues equal to or less than the grounds of appeal. This is because, an issue may be distilled from each ground of appeal or a combination of grounds of appeal but more than one issue cannot be distilled from one ground of appeal. Where more issues are distilled than the grounds of appeal, the issues so distilled are liable to be discountenanced and/or struck out. See Olanepo v. C.S.E.C (2011) 16 NWLR (Pt.1272) 122; Orisa v. State ​(2018) LPELR-43896 (SC) and Duwin Pharm & Chem Co. Ltd v. Beneks Pharm & Cosmetics Ltd & Ors. (2008) 4 NWLR (Pt. 1077) 376. It therefore means that, in the formulation of issues for determination, a number of grounds of appeal could, where appropriate, be formulated into a single issue but it is not acceptable to split issues in a ground of appeal as done in the Appellant’s Brief. Thus, in the case of Nnudenyi & Ors. v. Aleke (1996) 4 NWLR (Pt. 449) 349 it was held that, on no account should more than one issue be formed or distilled from one ground of appeal. See also Garba v. The State (2000) 4 SCNJ 315 were Rhodes-Vivour, JSC held as follows:
“where more than one issue is formulated from the same ground of appeal, both the issues so formulated and the ground from which they were formulated shall be struck out”.
Those proliferated issues are deemed incompetent and liable to be struck out. See also Okwuagbala & Ors. V. Ikwueme & Ors. (2010) LPELR-2538 (SC); Society Bic S.A. & Ors. V. Charzin Industries Ltd (2014) LPELR-22256 (SC); Ibrahim v. Ojomo (2004) 4 NWLR (Pt. 862) 89 at 104 and Shittu v. Fashawe (2005) 14 NWLR (Pt. 946) 671 at 687. See also State v. Omoyele (2017) 1 NWLR (Pt. 1547) 341. I have carefully perused the Notice of Appeal as contained in pages 349-354 of the Record of Appeal. It is obvious that the notice of Appeal is comprised of four (4) Grounds of Appeal. This much is stated by learned counsel for the Appellant at page 3 paragraph 1.6 of the Appellant’s Brief of Arguments. Furthermore, it is clear to me upon a careful reading of issues 4 and 5, it is not in doubt that the two issues are distilled from Ground 4. On the Principles sated above, issues 4 and 5 and Ground 4 of the Notice of Appeal from which they have been distilled cannot be countenanced. They are incompetent and accordingly struck out. See also Salami v. Mohammed (2000) 9 NWLR (Pt. 673) 469. This appeal shall therefore be determined on issues 1, 2 and 3, which issues shall be argued together.

Arguing issue one (1), learned counsel for the Appellant contended that, the trial Judge was in error when he held that the prosecution has failed to prove that the pretence made by the accused person to PW1 was false, notwithstanding the weight of evidence before the Court. That the prosecution led evidence showing that the accused/Respondent is the alter ego of Lama Cocoa processing (Nig.) Limited and Sharu Dynamics International Limited. That evidence revealed that Lama Cocoa processing (Nig.) Limited was incorporated by the Respondent but did not have a business premises or factory where it engaged in any business of cocoa processing in 2008 when the Respondent represented to PW1 that the company was in existence and was in the said business of cocoa processing; which culminated into the signing of a Memorandum of understanding (MOU) between PW1, the accused person and the company with the PW1 investing the sum of Ten million Naira (N10 million) in the company for the business.

​Learned counsel for the Appellant submitted further, that they requested the Respondent to take them to the company’s factory but the Respondent failed to do so, as the factory did not exist. That, the Respondent stated in his extra-judicial statement (exhibits p12, p14 and p15) that after incorporation, the company’s factory was not established as his business partner (a German) with whom he intended to establish the factory did not show up. That, after incorporation of the company in 1999, he opened and operated a corporate account for the company briefly but closed it. It was then submitted that, it is clear that at the time when the Respondent obtained the investment from the PW1 in 2008 under the guise that Lama Cocoa Processing (Nig.) Ltd. was into the business of cocoa processing, which representation was false.

​Learned counsel for the Appellant went on to submit that, all the financial transactions between the Accused/Respondent and PW1 in respect of the agreement were done directly between the Accused/Respondent and PW1, and also through Sharu Dynamics International Limited as directed by the Respondent. It was therefore submitted that, the only reasonable inference that can be drawn is that, as at 2008 when the MOU or agreement was entered into between PW1 and Lama Cocoa Processing (Nig.) Ltd, till the time the agreement was terminated in the same year, the company was not functional nor did it have a functional corporate account. That, if the company was not in existence, it cannot be said that the sum obtained from PW1 by the Respondent in cash payment and partly by deposit into an account (of which the Respondent is the alter ego), different from Lama Cocoa Processing (Nig.) Ltd, was invested into the business of cocoa processing purportedly carried out by the said company. In other words, that the money obtained by the Respondent from PW1 for cocoa processing business purportedly carried out by Lama Cocoa Processing (Nig.) Ltd., could not have been invested in a non-functional company and non-existent business.

Learned counsel for the Appellant then submitted that, the effect of the above submission is that, the learned trial Judge did not properly evaluate the evidence before him when he held that the prosecution has failed to prove that the pretence made by the Accused/Respondent was false. That, the learned trial Judge made that finding on the premise that, the Respondent paid interest to PW1 but later defaulted; and because the Respondent failed to return the principal sum to PW1 after the contract was terminated or that the Respondent could not show the location which Lama Cocoa Company was not carrying out business, is no proof that the fund was not invested for the purpose it was given to the Respondent. That, it was not established by evidence that the company maintained an active business account until 2008 nor was it established that, PW1 received interest on his investment until October, 2008. That, the evidence showed that PW1 was paid interest for one month only which led to the termination of the contract in October, 2008.

Learned counsel for the Appellant then submitted that the mere fact that the Accused/Respondent paid interest to PW1 is not proof that he invested the money he obtained from PW1 in the business of cocoa processing as he represented to the PW1. That, contrary to the findings of the trial Court, there is no iota of evidence on record that the money was invested in the cocoa processing business but the business went bad, either due to a force majeure or any other factor beyond the control of the Respondent. That, the only defence the Respondent proffered is that he was sick and had to be treated at a hospital in London. That, the ailment that afflicted the Respondent, as evidenced by Exhibits D1A, D1B, D1C, D1D and D2, took place in June, 2009 while the investment and subsequent termination of the contract due to default of payment of interest took place in 2008. It was then submitted that, if the learned trial Judge had properly evaluated the evidence before him, he would not have reached the conclusion that the prosecution failed to prove that the pretence made by the Accused/Respondent to PW1 was false. The cases of State v. Azeez (2008) 14 NWLR (Pt. 1109) 439 at 503; Omobo v. C.O.P. (1965) 66 NNLR 42; Fatoyinbo v. Williams (1956) SCNLR 274 and N.B.T.C Ltd. v. Narumal (Nig.) Ltd. (1986) 4 NWLR (Pt. 33) 177 at 128 were cited in support and to urge us resolve this issue in favour of the Appellant.

On issue two (2) learned counsel for the Appellant contended that the learned trial Judge erred when he held that the prosecution failed to prove that the Accused/Respondent knew that the pretence he made to PW1 was false despite the weight of evidence. That, it is so because, evidence was led to show that the Respondent is the alter ego of Lama Cocoa Processing (Nig.) Ltd. and Sharu Dynamics International Limited. That, evidence reveal that Lama Cocoa Processing (Nig.) Ltd was incorporated in 1999 but it did not have a business premises or factory for processing cocoa in 2008 when the Respondent represented to PW1 that the company was in existence and into the business of cocoa processing.

​Learned counsel for the Appellant went on to submit that, all the financial transactions between the Respondent and the PW1 in respect of the agreement were done directly between the Respondent and PW1, and through Sharu Dynamics International limited as directed by the accused person. That the only logical inference that can be drawn from that, is that, in 2008 when the agreement was entered into between PW1 and Lama Cocoa Processing (Nig.) Limited up till when it was terminated, the company (Lama Cocoa Processing (Nig.) Ltd) had no functional office. Furthermore, that in the circumstances, it cannot be reasonably said that the Respondent was unaware that he was making a false representation when he told the PW1 that Lama Cocoa Processing (Nig.) Ltd. was carrying on the business of cocoa processing which culminated into the signing of an MOU and the subsequent investment of Ten million Naira (N10M) in the company. We were accordingly urged to hold that, from the circumstances of the case, a reasonable inference can be drawn that the Respondent knew that the representation he made to the PW1 was false.

On issue three (3), learned counsel for the Appellant submitted that, the learned trial Judge erred when he held that, the prosecution failed to prove that there was an intent to defraud PW1 by the Respondent, despite the weight of evidence. That, evidence led at the trial established that, on termination of the said contract, the Accused/Respondent failed to pay back to PW1 the sum of N10 million being the sum invested by PW1 as capital in the business of the Accused person/Respondent. That uncontraverted evidence was led to show that the Respondent on the termination of the MOU, issued a cheque belonging to Sharu Dynamics International Limited to PW1 for the sum of N8.5 million as part payment of the capital invested, the cheque was presented for payment but was returned unpaid due to insufficient funds in the account of the drawer. It was then submitted that, the only reasonable inference that can be drawn from the conduct of the Respondent is that, he intended, ab initio to defraud PW1.

​Learned counsel for the Appellant went on to submit that, an inference that the Respondent had the intention to defraud PW1 can also be drawn from the fact that the Respondent knew that Lama Cocoa Processing (Nig.) Ltd. was not functional as at 2008, when he represented to the PW1 that the company was carrying on the business of cocoa processing. We were also urged to evaluate the evidence on record, which will show that the Respondent intended to defraud the PW1; and set aside the judgment of the trial Court which discharged and acquitted the Respondent of the offence of obtaining money by false pretence.

The Accused/Respondent did not file any brief of argument. Consequently, by an order of this Court made on the 09/9/2020, this Court set down the appeal to be heard on the Appellant’s Brief of Arguments. This appeal was therefore heard on the Appellant’s Brief of Arguments alone.

Now, as constitutionally guaranteed by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), every person is presumed to be innocent until the contrary is proved. That presumption of innocence therefore casts the burden on the prosecution to rebut that presumption which enures in favour of an accused person. To discharge the burden the prosecution must adduce cogent and credible evidence which establishes every essential element of the offence charged; and the scale of evidence must be such that proves the commission of the offence by the accused person beyond reasonable doubt. Therefore, if any one of the essential ingredients of the offence is not established by the evidence adduced at the trial, the charge has not been proved beyond reasonable doubt and the accused person will be entitled to an acquittal. See Onwe v. State (2018) 5 NWLR (Pt. 1612) 217; Madu v. State (2001) 3 NWLR (Pt. 700) 230 and Agu v. State (2017) 10 NWLR (Pt. 1573) 171.

As stated earlier, the standard of proof to be attained and discharged is that beyond reasonable doubt. As determined by the Supreme Court, proof beyond reasonable doubt does not mean proof beyond all doubt, or any shadow of doubt. It only means that the evidence adduced by the prosecution must establish each and every ingredient of the offence charged, conclusively. The evidence adduced must be compelling and conclusive. The idiosyncrasies of the trial Judge must not be allowed to becloud his sense of justice. Therefore, once the evidence adduced is compelling and points conclusively that the accused committed the offence, the Court must convict, otherwise, the accused should be acquitted. See Oseni v. State (2012) 5 NWLR (pt. 1293) 351; The State v. Ali Ahmed (2020) LPELR – 49497 (SC) and Dairo v. State (2018) 7 NWLR (Pt. 1619) 399. I therefore understand the law to mean that, when all the essential elements of the offence charged have been established by the prosecution, the charge is said to be proved beyond reasonable doubt.

The prosecution may embark on the onerous duty of rebutting the presumption cast on them, by any one or more, or all of the following ways:
a. By the direct testimony of eye witness(es) who saw when the offence was committed.
b. By the confessional statement of the accused which is voluntary, direct and unambiguous, showing that the accused has admitted to have committed the offence charged.
c. By circumstantial evidence which show compulsively that the accused and no other person committed the offence charged.
​As stated earlier, the prosecution may rely on any one or more of the above stated ways to prove the guilt of the accused. See Emeka v. State (2001) LPELR-1125 (SC); Segun Babajide v. The State (2020) LPELR-51218 (CA) and Mindi v. The State (2020) LPELR-52897 (SC).

In the instant case, the Accused/Respondent was charged for the offences of obtaining property by false pretence contrary to Section 1 (i) (a) of the Advance Fee Fraud and Other Related Offences Act; and the issuance of a dud cheque contrary to and punishable under Section 1 (b) (i) of the Dishonoured Cheques (Offences) Act, Cap. D11, Laws of the Federation of Nigeria, 2004. The trial Court acquitted the Accused/Respondent on both Counts, thus this appeal by the prosecution. 

Now, Section 1 (i) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 stipulates that:
“I(i) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud –
a. Obtains, from any other person, in Nigeria or any other country, for himself or any other person; or
b. …
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”.
It therefore means that for the prosecution to succeed, they have to adduce credible evidence to prove the following facts beyond reasonable doubt:
a. that the accused made a pretence (representation) to a person or complainant;
b. that the pretence or representation was to obtain property for himself or any other person;
c. that the pretence (representation) was false; and
d. that the pretence (representation) was with the intent to defraud;
e. whether or not the property is obtained or the delivery thereof is induced through a contract induced by the false pretence is not a defence.
It is required by law, that all the above stated ingredients of the charge be established by credible evidence beyond reasonable doubt, before a conviction can be sustained. See Bello v. FRN (2018) LPELR-43688; Confido Consult Services Ltd. v. FRN (2018) LPELR-43676 (CA) and Amadi v. FRN (2008) 18 NWR (Pt. 1119) 259.

​In the instant case, the case of the prosecution, now Appellants, is that, one Kinrin Dele Samuel had met the Accused/Respondent sometime in May 2008. That, the Respondent requested the said Kinrin Dele Samuel to invest in his (Respondent’s) Cocoa Processing Business. That in August, 2008, a Memorandum of Understanding (MOU) was then drawn up between them. By the said MOU, the said Kinrin Dele Samuel who testified as PW1, would invest in the said Cocoa Processing Company and a monthly interest of ten percent (10%) of the total sum invested would be paid to him (PW1). That, the PW1 then invested the sum of Ten million Naira (N10m) but the Respondent paid interest for the month of September only and later defaulted which led the PW1 to terminate the MOU. That, the Respondent then issued the PW1 a cheque for the sum of 8.5 million Naira but the cheque was returned unpaid on the ground that there was no or insufficient fund in the account to meet up the demand on the cheque. The PW1 attempted to cash the cheque again but was not successful, which led him to petition the Economic and Financial Crimes Commission (EFCC).

​From the evidence on record, there is no doubt that the Respondent made a representation to the PW1. The PW1 had testified that, he was introduced to the Respondent by one Dr. Seun Ogunleye who was involved in cocoa business. That the Respondent was introduced as the Managing Director of Lama Processing Co. Ltd, a cocoa processing business. That later in May, 2008, the PW1 met the Accused/Respondent in Abuja and the Respondent requested that he (PW1) invest in his (Respondent’s) cocoa business. That, the PW1 agreed, and a Memorandum of Understanding was drawn up between the parties. The said Memorandum of Understanding (MOU) is in evidence as Exhibit P1.

The Memorandum of Understanding was executed between Messers Talal Shaimi of Lama Cocoa Processing Nig. Ltd and Messers Dele Kinrin Samuel. By the said Agreement, the parties were to partner in relation to the cocoa processing business on the following terms:
1. That the investor shall invest the sum of N10,000,000.00 Naira only at the start of the business.
2. That the investment shall commence on the day first above written and continue from the day thereafter.
3. That 10% of the total money invested shall be paid on monthly basis to the investor.

​It should be noted that the Memorandum of Understanding was executed on the 1st day of May, 2008. There is therefore proof beyond reasonable doubt that the Accused/Respondent made a representation to the PW1 which led to the execution of the Memorandum of Understanding (Exhibit P1). This fact the Respondent admitted in his testimony before the Court and his extra-judicial statement to the EFCC which is in evidence as Exhibit P12. On this point, the learned trial Judge held at page 338 lines 12-18 of the Record of Appeal as follows:
“There is evidence from PW1 & PW3 that accused person requested PW1 to invest in cocoa business. Exhibit P1 is the formal agreement executed between PW1 and the accused person acting for Lama Cocoa Processing Nig. Ltd, wherein PW1 was to invest and become a partner in the business of the accused person and or Lama Cocoa Company. There is therefore no doubt and I find without much ado, that pretence or representation was made to PW1 by the accused person”.

I am therefore in agreement that the learned trial Judge was right when he found that the Accused/Respondent as the alter ego of Lama Cocoa Processing Nig. Ltd. made representation to the PW1. 

The next thing to determine is whether the representation was false. Finding on that ingredient of the offence, the learned trial Judge held at page 338 lines 28-339 line 4 of the record of appeal as follows:
“In my view, to prove in the circumstances of this case that the pretence/representation was false, the prosecution must adduce evidence to establish either that the fund was not invested in Lama Cocoa Processing Co. Ltd, or that the fund could not have been invested in the business for certain obvious reasons, for example, that at the time the statement was made in 2008, the said business was not in existence or that it was impossible to have invested in that business”.

Indeed, it is the law, that to proof the falsity of a statement or representation or false pretence, the prosecution must show that the person accused, made the representation which is deliberate or reckless, either by word or conduct and which representation is found to be false. Thus, Section 20 of the Advance Fee Fraud and other Related Offences Act (Supra), defines “false pretence” to mean:
“…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 to be true”.
The gist of false pretence, in my view, is that the representation made must evince some elements of deceit. It means the representation must be intentionally intended to lead the person to whom the representation is made, to believe in the existence or non-existence of something. It must be a statement or conduct made either knowingly or recklessly, with the intent that the person to whom it is represented, will act on it. 

The learned trial Judge resolved the issue at pages 339 lines 8-340 line 17 of the record of appeal, as follows:
“I have also perused the evidence for facts which reasonably support the inference that the funds obtained from PW1 was not invested as represented. While the relevant evidence of PW1 & PW2 show that interest on the principal sum was not forthcoming as agreed upon and that the inability to pay interest led to the decision to call-off in the investment and that the accused person was equally unable to meet his obligation to return the principal sum. Similarly, the evidence of PW3 and PW4 indicate that the accused person could not show them the location or site of Lama Cocoa Company.
In considering the evidence, it must be pointed out that the evidence of PW1 and PW2 that accused failed to honour his undertaking as to the payment of both the interest and the principal sum is not proof that the funds was not invested in the business of Lama Cocoa as represented. The pretence is false only when evidence show that the fund was not invested in the business. In the absence of such evidence, the fact that the accused person fails to honour the resultant obligations to pay (or continue to pay) interest or to refund the principal sum cannot render the pretense false. In Lawal v. Queen (1963) All NLR 174, it was observed:
“What the appellant did was in effect to promise payment on certain future days, although he did not intend to keep the promise, such itself was not a false pretence… “
Similarly, in considering the evidence of PW4 which tends to show that Lama Cocoa business was not in existence because it had no site or location, it must be borne in mind that the representation/pretence in issue is not that Lama Cocoa is located at any particular address or location. The existence of a factory site or location is not a material particular of the pretence and consequently its non-existence cannot render the pretence false, particularly when prosecution evidence in Exhibits P7 & P15 show that Lama Cocoa Processing Co. Ltd was incorporated in year 2000; that its business account remained active until 2008 and that PW1 received interest on his investment until October, 2008.
In other words, evidence showing the absence of a factory site or location or the German partner of the accused person is not sufficient proof that the fund obtained from PW1 for investment in Lama Cocoa was not so invested as to render the representation false. Afterall, business went on smoothly without the factory or the German partner during the period between May and October, 2008 when PW1 made investment and received interest.
I find on the evidence that the prosecution has not proved that the pretence made to PW1 was false.”

​A careful perusal and consideration of both oral and documentary evidence on record would show that the findings of the learned trial Judge as reproduced above, cannot be faulted. The evidence on record reveals that the Memo of Understanding in respect of the Cocoa Processing business between PW1 and the Accused/Respondent (Exhibit P1) was executed on the 1st day of May, 2008. The investment was to be made with Lama Cocoa Processing Nig. Ltd. By the Certificate of Incorporation annexed to Exhibit P7, Lama Cocoa Processing Limited was incorporated on the 28/4/2000. There is no evidence on record, that Lama Incorporated Cocoa Processing Limited had been liquidated or wound-up. Rather, evidence on record discloses that upon registration, the said Lama Cocoa Processing Limited commenced business. Indeed, PW1 testified that, the Accused/Appellant was introduced to him by one Dr. Seun Ogunleye, as a businessman who deals in cocoa. The PW1 had specifically stated at page 259 of the record of appeal as follows:
“It is true that I started doing business with the accused person before exhibit P1 was signed in August, 2008, I invested in the business of the accused person. I know that before my investment with the accused person, Arogundade had also invested with accused…”

​The PW2, one Adedayo Peter Arogundade, also testified that he was introduced to the Accused/Respondent by the same Dr. Ogunleye, as a dealer in Cocoa export business. That in March, 2008 he (PW2) also entered into an agreement with the Respondent leading to the execution of a Memorandum of Understanding on very similar terms as Exhibit P1. That, between March, 2008 and May, 2008, the Respondent paid in full, the agreed return on investment. That, it was between June and September, 2008, that the Respondent paid PW2 part of the agreed sum due on the investment, only. The Memorandum of Understanding executed between the Respondent and PW2 is in evidence as exhibit P5.

​Though the PW1 stated that the Respondent paid him interest or a return on his investment for one month only, the evidence on record shows otherwise. Indeed, PW3 who investigated the case, testified that, the Accused/Respondent paid the PW3 the 10% return on his investment as agreed upon till October, 2008. The above findings have been made from the evidence on record to show that the prosecution failed to prove beyond reasonable doubt, that the pretence or representation made to the PW1 was false. There is evidence that Lama Cocoa Processing Limited was in existence at the time exhibit P1 was executed between PW1 and the Respondent. The fact that the Respondent was unable to or failed to pay the returns on the investment made in the Lama Cocoa processing Limited is no evidence that the representation made by the Respondent to the PW1 was false. Furthermore, the business address of Lama Cocoa Processing Ltd is clearly stated in Exhibit P7 as No. 8, Ilojo Crescent, Obanikoro, Lagos. The PW3 and PW4, the EFCC operatives who investigated the case, did not say that they visited the said Address but found it to be non-existent. The PW4 only stated that the Accused/Respondent did not tell him where the company was located, despite having obtained the certificate of Incorporation from the Corporate Affairs Commission, with the address conspicuously written thereon.

​The Appellant contended that, the Respondent did not take them to the place of business of the said Lama Cocoa Processing Limited because the business was no longer on-going as his partner from Germany was no longer interested. There is however no evidence on record, as to when Lama Cocoa Processing Co. Ltd ceased to be in business. This is vital because, evidence on record shows that the said Lama Cocoa processing Co. Ltd registered in April, 2000 and was in business even at the time the Memorandum of Understanding was executed between the parties. Though the PW1 stated in his testimony in Court that the Respondent paid him only one month of the agreed interest, he had stated in his statement to the EFCC (exhibit P4), that the Respondent was paying the interest on monthly basis up to October, 2008.

It is the settled law that, where a witness makes a statement in his testimony in Court which is inconsistent with his statement to the police (in this case EFCC), both the extra-judicial statement and the oral testimony will be discountenanced or rejected as not credible. See Mr. Sunday Ikenne v. The State (2018) LPELR-44695 (SC); Usufu v. State (2006) LPELR-11790 (CA); Egboghonome v. State (1993) 7 NWLR (Pt.306) 383 and Charles Okasi v. The State (2016) LPELR-40454 (CA). Thus, in the case of Charles Okasi v. The State (supra), this Court explained that, the inconsistency rule was formulated for the purpose of resolving conflict between the evidence of a witness given in Court and the previous statement such witness made extra-judicially. I therefore hold that, the testimony of PW1 to the effect that he was paid interest or return on his investment for only one month, is unreliable. I accordingly accept as credible, the testimony of PW4, that the PW1 was paid such return on his investment up to October 2008. 

On that note, I hold that the learned trial Judge was right when he held that the prosecution did not prove that the pretence or representation made to PW1 was false. Having found as above, it is not necessary to proceed to pronounce on the next element of the offence, which is, whether the Accused/Respondent made the pretence or representation with the intention to defraud. This is because, as stated on the onset of this Judgment, the prosecution have the onerous duty to establish every ingredient of the offence charged, otherwise they would have failed to prove the offence beyond reasonable doubt. In other words, once any one of the essential elements of the offence are not proved, it would mean that the charge has not been proved beyond reasonable doubt, and the accused will be entitled to an acquittal. See Alabi v. The State (1993) 7 NWLR (Pt. 307) 511; Darlington v. FRN (2018) 11 NWLR (Pt. 1629) 152 and Kassim v. State (2017) LPELR-42586 (SC). See also Ameh v. State (2018) 12 NWLR (Pt. 1632) 99 and Aliu v. State (2015) 2 NWLR (Pt.1442) 51. Thus, in Nwaturuocha v. State (2011) 6 NWLR (Pt. 1242) 170, the Supreme Court, per Adekeye, JSC said:
“In the process of establishing the guilt of an accused, the prosecution has to prove all the essential elements of an offence as contained in the charge. While discharging the responsibility of proving all the ingredients of the offence vital witnesses must be called to testify during the proceedings. Before a trial Court comes to the conclusion that an offence had been committed by an accused person, the Court must look for the ingredients of the offence and ascertain critically that acts of the accused comes within the confines of the particulars of the offence charged …”
​It follows therefore that, were the Court finds that an essential element of the offence charged has not been proved, it would mean that the prosecution failed to prove the essential ingredients of the offence beyond reasonable doubt and the Appellant would be entitled to an acquittal. See Ibrahim v. State (2015) LPELR-40833 (SC); Okoro v. State (1988) 5 NWLR (Pt. 94) 255 and Shehu v. State (2010) 8 NWLR (Pt. 1195) 112. I therefore hold that, for failing to prove that the pretence or representation made to the Accused/Respondent was false, an essential ingredient of the offence charged has not been proved beyond reasonable doubt. On that note, I resolve issues 1, 2 and 3 against the Appellant.

It should be remembered that Ground 4 of the Notice of Appeal and issues 4 and 5 distilled therefrom, had been struck out for being proliferated. Thus, with the resolution of issues 1-3 against the Appellant, this appeal is without merit. It is hereby dismissed. Consequently, the judgment of the Kogi State High Court delivered on the 16th day of July, 2015 is hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered by my learned brother HARUNA SIMON TSAMMANI, JCA was made available to me in draft before now.

​I took time to read the grounds of appeal, the record of proceedings and submissions of learned counsel, and do agree that ground 4 having been proliferated upon, the ground and the issues generated therefrom ought to and were rightly struck out.

A charge founded on obtaining property by false pretence envisages a criminal intention to deceive, and it must be clearly shown and established that accused person had that criminal intent to defraud, and thereby set in motion the facts originating or leading to the acts complained of. My Learned brother having dealt with the issue admirably, I do not have anything useful to add.

In the event, I find no reason to interfere with the well reasoned judgment of the trial Court and accordingly dismiss the appeal.

DANLAMI ZAMA SENCHI, J.C.A.: I have had the privilege of reading in draft, the lead judgment of my learned brother, Haruna Simon Tsammani, JCA just delivered and I agree with the findings and conclusion reached therein this appeal lacks merit and it is also dismissed by me.

​Accordingly, the judgment of the High Court of Justice, sitting in Lokoja, Kogi State in suit No. HC/KK/001C/2013 delivered on the 16th day of July, 2013 is hereby affirmed.

Appearances:

Ibrahim Audu, Esq. (Legal Officer with E.F.C.C) For Appellant(s)

Respondent is absent and unrepresented. For Respondent(s)