HAMIDU v. FRN
(2022)LCN/16774(CA)
In The Court Of Appeal
(GOMBE JUDICIAL DIVISION)
On Tuesday, May 24, 2022
CA/G/106C/2021
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Ibrahim Shata Bdliya Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
ALHAJI TIJJANI HAMIDU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE INGREDIENTS OF THE OFFENCE OF FORGERY
The ingredients of the offence of forgery under Section 364 of the Penal Code are:
(a) (i) That the accused made, signed, sealed or executed the document in question or any part thereof; or
(ii) That it was made by someone else
(b) That it was made under any of the circumstances in Section 363.
(c) That the accused made it dishonestly or fraudulently or with any of the specific intents enumerated in Section 362.
While the essential ingredients to be proved under Section 366 of the Penal Code are:
(a) “That the accused used a document as genuine.
(b) That the accused knew or had reason to believe that the document was forged.
(c) That he did so fraudulently or dishonestly.”
The explanatory notes under Section 366 of the Penal Code state additionally thus:
(1) Under this section not only a dishonest user of a false document but also the forger himself may be prosecuted if there is evidence of use but insufficient proof of forgery.
(2) To constitute an offence under this section there must be both knowledge and fraudulent intention. The two questions which arise are:
(a) Whether the accused knew or had reason to believe the document to be forged; and
(b) Whether he used the document fraudulently or dishonestly. PER SANKEY, J.C.A
THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS
The law is settled that in criminal cases, the burden of proof is on the prosecution and the standard is beyond reasonable doubt. PER SANKEY, J.C.A
THE INGREDIENTS OF THE OFFENCE OF OBTAINING BY FALSE PRETENCE
By these provisions, fraudulent misrepresentation and intent to defraud are two elements which are critical to the prosecution of the offence of obtaining by false pretence. “False misrepresentation” or representation is a false statement that is known to be false or is made recklessly without knowing or caring whether it is true or false and that is intended to induce a party to detrimentally rely on it. “Intent to defraud” on the other hand is intent to practice fraud on someone else. Thus, it need not be anyone in particular as such someone in general will suffice. In other words, if anyone may be prejudiced in any way by the fraud, that is enough. See Okereke V IGP (2021) LPELR-55763(CA) 15, A-E; Ojukwu V FRN (2020) 5 NWLR (Pt. 1717) 356.
Therefore, the lower Court was called upon to ensure that the evidence placed before it by the prosecution established the following:
I. A pretense is made by way of representation.
II. From the accused.
III. To the person defrauded.
IV. The representation is a pretense.
V. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation, the accused induced the victim to deliver or transfer some other person.
VIII. The property transferred is capable of being stolen.
See Uloh V FRN (2021) LPELR-55192(CA) 14-15, E-G, Darlinton V FRN (2018) LPELR-43850(SC) 14-15, A, per Eko, JSC, Onwudiwe V FRN (2006) 10 NWLR (Pt. 988) 382. PER SANKEY, J.C.A
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Borno State in Suit No. BOHC/MG/CR/82/2019 delivered on 10th December, 2019 by F. Umaru, J.
In a nutshell, the facts leading to the appeal are as follows: The Appellant, Alhaji Tijjani Hamidu, was arrested following a petition that the Economic and Financial Commission (EFCC) received from one Alhaji Madu Kolo Liman against him. Upon due investigation, the Appellant was arraigned before the High Court of Borno State (hereinafter referred to as the lower Court) on a three-count charge on 25-07-19. The charge which read:
“That you ALHAJI TIJJANI HAMIDU being a Business Man, sometimes in 2017 at Maiduguri, Borno State within the jurisdiction of this Honorable Court, with intent to defraud did obtained the sum of N3,350,000.00 (Three Million, Three Hundred and Fifty Thousand Naira) only vide cash payment under the False Pretence of selling Plot No. 136 on BOTP/122 measuring 1m200 square meters situate at Gumbole Road Extension, Maiduguri dated 24th October, 2013 to the said Alhaji Madu Kolo which you knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT 2
That you ALHAJI TIJJANI HAMIDU being a Business Man, sometimes in 2017 at Maiduguri, Borno State within the jurisdiction of this Honorable Court did fraudulently make a false document to wit: an application titled “APPLICATION FOR THE RIGHT OF OCCUPANCY” emanating from Ministry of Land, Borno State, Maiduguri addressed to Abdullah Lawan Sakwa dated 24th October, 2013, knowing it to be forged and handed same to ALHAJI MODU KOLO and thereby committed an offence contrary to Section 364 and punishable under Section 366 of the Penal Code Law Cap 102, Laws of Borno State.
COUNT 3
That you ALHAJI TIJJANI HAMIDU being a Business Man, sometime in 2017 at Maiduguri, Borno State within the jurisdiction of this Honorable Court did fraudulently use as genuine a false document to wit: an application titled “APPLICATION FOR THE RIGHT OF OCCUPANCY” emanating from Ministry of Land, Borno State, Maiduguri addressed to Abdullahi Lawan Sakwa dated 24th October, 2013 knowing same to be forged and handed same to ALHAJI MODU KOLO with the intention of causing it to be believed as genuine and thereby committed an offence punishable under Section 366 of the Penal Code Law Cap 102, Laws of Borno State.”
The Appellant pleaded not guilty. The Respondent, in proof of the charge, adduced evidence through three witnesses and several documents, while the Appellant testified in his defence and called two other witnesses. At the close of evidence and final addresses of Counsel, the learned trial Court delivered its judgment on 5th December, 2019 wherein he convicted the Appellant for the offences of obtaining money under false pretences under Section 1(1) (b) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and using as genuine a forged document under Section 366 of the Penal Code Law Cap 102, Laws of Borno State, 1994. The Appellant was subsequently sentenced to various terms of imprisonment to run concurrently, and also ordered to pay compensation to Alhaji Modu Kolo Liman on 10th December, 2019.
Dissatisfied, the Appellant filed an appeal on 28-01-20 wherein he complained on seven grounds. With the leave of Court sought and obtained, he filed an Amended Notice of Appeal on 31-01-22 which was deemed duly served on 02-03-22. He seeks the following relief from this Court:
i. “An order allowing this appeal by setting aside the decision of the trial Court delivered on 10th December, 2019.
ii. An order [to] discharge and acquaint (sic) the Appellant.”
At the hearing of the appeal on 02-03-22, learned Counsel for the Appellant, Idris Buba Esq., adopted the submissions in the Appellant’s brief of argument filed on 31-01-22 and settled by the same Counsel, in urging the Court to allow the appeal. On his part, learned Counsel for the Respondent, Mukhtar Ali Ahmed Esq., Principal Detective Superintendent (PDS) EFCC, adopted the submissions in the Respondent’s brief of argument filed on 10-02-22, deemed filed on 02-03-22 and settled by the same Counsel, in urging the Court to dismiss the appeal, affirm the judgment of the lower Court and award substantial costs against the Appellant.
In his brief of argument, the Appellant culled the following three (3) issues from the seven grounds of appeal:
a. “Whether having regard to the evidence adduced, the Respondent has proved his case beyond reasonable doubt as required by law against the Appellant. (Grounds 3, 4, 5 and 6)
b. Whether the trial Court carefully examined all the exhibits tendered before arriving at a conclusion. (Ground 3)
c. Whether the trial Court has properly evaluated the evidence of the witnesses before him. (Ground 1, 2 and 7)”
The Respondent framed one lone issue for determination thus:
“Whether the learned trial Judge was not right to have convicted and sentenced the Appellant to seven years’ imprisonment for obtaining money under false pretense and for using as genuine a forged document.”
Both sets of issues are similar in content. However, I am of the view that the following issue shall suffice to address all the issues arising from the appeal:
“Whether the learned trial Judge properly evaluated all the evidence placed before the lower Court and rightly convicted the Appellant for the offences charged of obtaining money under false pretenses and using as genuine a forged document.”
Learned Counsel for the Appellant submits that the Respondent failed to prove its case beyond reasonable doubt. He contends that it was not properly established that the Appellant had knowledge or had reason to believe that Exhibit C, the Application for the Grant of the Right of Occupancy, was forged neither did he use the document fraudulently or dishonestly. He contends that the evidence of PW1 failed to establish this. He also contends that Exhibits D and E, the Appellant’s extra-judicial statement and the letter from the Ministry of Land and Survey, Borno State did not prove the allegation of forgery. He submits that he was entitled to a discharge since the essential element of the offence was not proved.
Counsel also submits that in respect of the offence of obtaining money under false pretenses, the Respondent offered the evidence of PW1 and PW2, as well as Exhibits C, D and E. However, that these pieces of evidence failed to establish the offence against him. He contends that the lower Court failed to consider the defence of the Appellant presented through DW1, DW2 and DW3 and so failed in his duty to evaluate and ascribe probative value to the evidence of the defence before coming to a conclusion convicting the Appellant. Counsel therefore invited the Court to re-evaluate the evidence placed before the trial Court. He submits that the evidence of the DW1, DW2 and DW3 was unchallenged and not discredited.
Counsel further submits that the trial Court did not carefully examine the exhibits tendered in evidence before arriving at a conclusion, and that this occasioned a miscarriage of justice. He contends that Exhibits C and E, (the Grant of a Right of Occupancy and a letter from the Ministry of Land & Survey Borno State), which formed vital evidence in the case, were not properly examined. Instead, that the trial Court acted on the documents without further evidence to prove that it was the Appellant who forged Exhibit C.
In addition, Counsel submits that the Respondent failed to prove that the Appellant had knowledge and used Exhibit C dishonestly to defraud PW1 with the intention to obtain money from him by false pretense. Therefore, this Court is entitled to interfere with the findings of the trial Court. Counsel finally urged the Court to resolve the issue in favour of the Appellant, allow the appeal, set aside the decision of the lower Court, and discharge and acquit the Appellant.
In response, learned Counsel for the Respondent submits that the prosecution led evidence through three witnesses, PW1, PW2 and PW3, and several documents in proof of the charge against the Appellant, and it was proved beyond reasonable doubt. Counsel articulated the law in respect of the burden and standard of proof in criminal cases and the mode by which such proof can be established. For this, he referred to a multitude of decided cases. Contrary to the contention of the Appellant, Counsel submits that the trial Judge evaluated the evidence of the witnesses and that the decision was not perverse.
I must say that I fail to see the relevance of pages 13-21 of the Respondent’s brief of argument. It was obviously added in error, and more likely a product of cut and paste. I cannot emphasize enough the need for Counsel to always proofread and vet their processes before filing them in Court. This unwarranted addition to the Respondent’s brief is to say the least, careless and shows a lack of diligence.
RESOLUTION OF SOLE ISSUE FOR DETERMINATION:
The three-count charge against the Appellant has already been set out earlier in this judgment. The provisions under which he was charged and convicted are: Section 1(1) (a) punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006, and Section 364 punishable under Section 366 of the Penal Code Law Cap 102, Laws of Borno State.
Section 1(1) (a) and 1(3) provide as follows:
“1. (1) 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 in any other country for himself or any other person;
(3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of fine.”
To ground a conviction under Section 1(1) (a) and 1(3) of the Advance Fee Fraud Act, evidence must be in place establishing, among others, that the accused pretentiously induced the complainant to part with his property or money –Adamu V FRN (2021) LPELR-53205(CA) 9, A-B.
Sections 364 and 366 of the Penal Code Law also provide –
“364. Whoever commits forgery shall be punished with imprisonment for a term which may extend to fourteen years or with fine or with both.
366. Whoever fraudulently or dishonestly uses as genuine any document which he knows or has reason to believe to be a forged document, shall be punished in the same manner as if he forged the document.”
The ingredients of the offence of forgery under Section 364 of the Penal Code are:
(a) (i) That the accused made, signed, sealed or executed the document in question or any part thereof; or
(ii) That it was made by someone else
(b) That it was made under any of the circumstances in Section 363.
(c) That the accused made it dishonestly or fraudulently or with any of the specific intents enumerated in Section 362.
While the essential ingredients to be proved under Section 366 of the Penal Code are:
(a) “That the accused used a document as genuine.
(b) That the accused knew or had reason to believe that the document was forged.
(c) That he did so fraudulently or dishonestly.”
The explanatory notes under Section 366 of the Penal Code state additionally thus:
(1) Under this section not only a dishonest user of a false document but also the forger himself may be prosecuted if there is evidence of use but insufficient proof of forgery.
(2) To constitute an offence under this section there must be both knowledge and fraudulent intention. The two questions which arise are:
(a) Whether the accused knew or had reason to believe the document to be forged; and
(b) Whether he used the document fraudulently or dishonestly.
The law is settled that in criminal cases, the burden of proof is on the prosecution and the standard is beyond reasonable doubt.
In a case such as this, where the Appellant is charged under Section 1(1) (a) and 1(3) of the Advance Fee Fraud Act (supra), the prosecution must lead evidence to establish all the essential elements that constitute the offence. Thus, the trial Court in its evaluation of the evidence must come to a conclusion and make a finding that from the evidence presented, it has been established that –
(1) There was pretence on the side of the appellant/accused person;
(2) The pretence was false;
(3) The accused knew the pretence to be false or did not believe it to be true;
(4) The pretence operated on the mind of the person from whom the property was obtained;
(5) There was an intention on the part of the accused to defraud his victim;
(6) The accused by that pretence, induced his victim or the owner of the property to part or transfer his interest in the property (including money).
Thus, the ingredients necessary to be established here are:
(i) That there is pretence,
(ii) The pretence was by the Appellant,
(iii) It was false,
(iv) The Appellant was aware that it was false,
(v) There was intention to defraud,
(vi) The subject-matter can be stolen, and
(vii) The Appellant induced the owner to transfer his interest in the property.
The prosecution is by law expected to establish those elements or essential ingredients of the offence if it must succeed. See Adamu V FRN (2021) LPELR-53205(CA) 5-7, A, Adeniji V FRN (2021) LPELR-52818(CA), Ikpa V State (2017) LPELR-42590(SC), Oluwasheun V FRN (2016) LPELR-40768(CA), Odiawa V FRN (2008) All FWLR (Pt. 439) 436, Alake V State (1991) 7 NWLR (Pt. 205) 567.
Section 20 of the Advance Fee Fraud Act (supra) provides for what is meant by false pretense thus:
(c) “False Pretense” means 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.”
By these provisions, fraudulent misrepresentation and intent to defraud are two elements which are critical to the prosecution of the offence of obtaining by false pretence. “False misrepresentation” or representation is a false statement that is known to be false or is made recklessly without knowing or caring whether it is true or false and that is intended to induce a party to detrimentally rely on it. “Intent to defraud” on the other hand is intent to practice fraud on someone else. Thus, it need not be anyone in particular as such someone in general will suffice. In other words, if anyone may be prejudiced in any way by the fraud, that is enough. See Okereke V IGP (2021) LPELR-55763(CA) 15, A-E; Ojukwu V FRN (2020) 5 NWLR (Pt. 1717) 356.
Therefore, the lower Court was called upon to ensure that the evidence placed before it by the prosecution established the following:
I. A pretense is made by way of representation.
II. From the accused.
III. To the person defrauded.
IV. The representation is a pretense.
V. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation, the accused induced the victim to deliver or transfer some other person.
VIII. The property transferred is capable of being stolen.
See Uloh V FRN (2021) LPELR-55192(CA) 14-15, E-G, Darlinton V FRN (2018) LPELR-43850(SC) 14-15, A, per Eko, JSC, Onwudiwe V FRN (2006) 10 NWLR (Pt. 988) 382.
The facts in evidence through PW1, Alhaji Modu Kolo, is that the Appellant told him that he had three plots for sale and that he was looking for a buyer. PW1 indicated his interest and requested that he should tell him the owners of the plots. The Appellant assured him that he was authorized to negotiate on their behalf and that he had previously sold three other plots on their behalf. Based on this assurance, PW1 proceeded to negotiate prices for the three plots. They agreed on N2,800, 000.00k, N800, 000.00k and N1,100, 000.00k for each of the plots, totaling N3,800, 000.00k, which PW1 paid to the Appellant. They entered into a written agreement on the sale, which agreement was dated 20-01-16. In turn, the Appellant gave PW1 an original Certificate of Occupancy No. 23535 as the document of title for one of the plots, while he held on to the other documents of title because payment had not been concluded. PW1 was later to discover that the claims of the Appellant were not genuine when he sold the plots to Alhaji Modu who commenced building on the land. He was promptly accosted by a third party who claimed the land belonged to him. On proceeding to the Ministry of Land and Survey, it was confirmed that the document of title that the Appellant gave to PW1 was a false document and that it was forged. When he told the Appellant of this alarming development and demanded that his money to be refunded, the Appellant promised to give him another house in lieu of N3,000,000.00k out of the money paid to him. PW1 therefore returned the original Certificate No. 23535 to him and kept a photocopy. Subsequently, the Appellant neither refunded the money to him despite several demands nor did he give him the house. PW1 therefore lodged a report of the matter to the EFCC Maiduguri Office vide a petition dated 24-04-17. The sale agreement, the petition to the EFCC Maiduguri office and a copy of the Grant of Right of Occupancy are in evidence as Exhibits A, B and C respectively.
PW2, Sani A. Tilde, was the EFCC Operative who investigated the case. He recorded the statement of the Appellant and followed up with a written enquiry to the Ministry of Land and Survey Maiduguri to verify the genuineness or otherwise of the Right of Occupancy the Appellant gave to PW1. In its response, the officers of the Ministry stated that the document was not authentic. Both the statement of the Appellant and the letter from the Ministry of Land and Survey dated 07-12-18 are Exhibits D and E respectively. The Appellant in his statement stated that he acquired the plots from one Sheriff (whom he had known for over eight years), Abba and Hafsat. He gave PW2 their GSM numbers. However, every attempt to reach them or for the Appellant to lead him to these people, proved abortive. This was the case of the Respondent which was presented to the lower Court.
In his defence, the Appellant called two witnesses, DW1, ASP Ado Buba, a Police Officer attached to CID Maiduguri and DW2, a businessman, while he also testified in his defence as DW3. The evidence of DW1 was in no way helpful to the Appellant. It is therefore difficult to see what the Appellant intended to accomplish with this witness. At pages 37-38 of the Record, DW2 stated as follows:
“In 2016, a petition was written by Alhaji Modu Musami against one Alhaji Kolo… I invited Alhaji Kolo in respect of the matter. The allegation was that Alhaji Kolo sold a plot of land to Alhaji Modu at Are 122 Old GRA Maiduguri. In my interview with Alhaji Kolo he told me that he sold the land to Alhaji Modu and that the land was sold to him by Alhaji Tijjani the accused. We invited the accused and he stated that he sold the land to Alhaji Kolo and that the land was given to him by one Abba, we could not invite Abba because it was late at night. At this juncture Alhaji Tijjani agreed to refund Alhaji Kolo his money within a week and he was received on bail. Within the week Abba was arrested for another case and Alhaji Tijjani came to the State CID and took Abba on bail that they will go to the Shehu’s Palace for settlement. I later learnt that Alhaji Tijjani reported Abba to the Anti-Robbery Section and Alhaji Tijjani came to me and made an undertaking that he is going to pay Alhaji Kolo his money and he paid about N230,000.00k. The said money was handed over to Alhaji Modu Kolo.”
Also, DW2 in essence confirmed the evidence of PW1 that the Appellant sold the plots of land to PW1. The relevance of his evidence is that, after the letter of Grant of Right of Occupancy was confirmed to be fake, the Appellant and himself searched for Abba, Hassan and Sheriff and others, but could not find them. Later on, one Amina was arrested and she led them to arrest seven others. He contends that Abba was later charged to Court while the Appellant started making payments by installments to the tune of N250, 000.00k.
DW3 was the Appellant himself. He clearly admitted the transactions between himself and PW1, including the payments made by PW1 and the fake document of title he handed over to PW1. His defence essentially is that he was also deceived by Abba. While making these admissions in Court, he still denied the allegations made by PW1 in the petition to EFCC and denied that he promised to refund the money that PW1 paid to him when the evidence shows that he already made some payments to the tune of N250,000.00k even before his arraignment in Court. The Appellant’s evidence under cross-examination at pages 50-51 of the record is as follows:
“My name is Alhaji Tijjani Hamidu. I am also called Tijjani Hamidu… I bought a piece of land at Jiddari from one Abba a brother to Late Dujima’s wife and the land turned out to be fraudulent and the same Abba sold another land at Jiddari at the rate of N1.3 million and still it turned fraudulent. The said Abba exists. In the year 2016, I presented to Alhaji Modu Kolo a plot of land at Plot No. 136 on BOTP/122 situate at Gombole Road Extension measuring 1200sqm for sale. I did not give the said Alhaji Modu Kolo the document of the plot which Abba gave me for him to go to the Ministry of Land & Survey Maiduguri to investigate. I signed an agreement. The said Alhaji Kolo later told me that the document of title is not genuine. Alhaji Modu Kolo asked me to refund him money and where I failed to give him his money he reported me to the EFCC. I did not admit at all that the said Alhaji Modu Kolo petitioned. I did not agree to refund any money to Alhaji Kolo at the EFCC Maiduguri but the EFCC asked me to pay. I did not instruct anyone to write any statement for me at EFCC Maiduguri.”
Nonetheless, when the Appellant’s extra-judicial statement was sought to be tendered at the lower Court, he confirmed that the signature on the statement was his and it was admitted in evidence without objection and marked Exhibits F and G.
As earlier set out, the vital ingredients of the offence of obtaining money under false pretences, are: false misrepresentation and intent to defraud. The learned trial Judge at page 60 of the record set out the elements the prosecution was required to prove. Thereafter, he examined the entire evidence placed before the Court at pages 61-64 and found that the prosecution had succeeded in proving the ingredients of the offence in the first count of charge. His findings were anchored mainly on the evidence of PW1, Exhibit A – the sale agreement entered into between PW1 and the Appellant in respect of the plot of land, and Exhibit C – the letter of Grant of Right of Occupancy. After a close examination of the findings of the learned trial Judge, I am of the considered view that the deductions made from the evidence laid before the Court are sound, logical and in accord with the principles of law.
On counts two and three for the offences of fraudulently and dishonestly using a false document when he had reason to know that it was false/forged, again the learned trial Judge meticulously sifted through the evidence and made sound findings which cannot be faulted. The sum total is that, whereas the defence of the Appellant to PW1, to the EFCC and at the lower Court is that he dealt with the elusive and so-called Abba innocently; his conduct and actions do not bear this out. This is because, while he held himself out to PW1 to be acting on behalf of the owner of the properties whom he named as Abba, he signed the Sale Agreement (Exhibit A) as the beneficial owner in his own name, and not on behalf of Abba or anyone else. It was when the title document was found to be fake upon inquiry at the Ministry of Land and Survey, Maiduguri (Exhibit C) that he began to prevaricate and pass the buck. He named persons like Alhaji Sheriff, Amina, Abba and Hassan as owners of the properties and/or persons whom he dealt with in respect of the properties. However, all subsequent efforts made by the investigating authorities to identify and contact these persons, either by phone or in person, proved abortive. In his extra-judicial statement Exhibit D, the Appellant stated that Alhaji Sheriff had been his neighbor for more than eight years, and yet he could not produce him when needed to substantiate his stories.
Again, DW1, the Appellant’s own witness, confirmed that the Appellant agreed to refund the money received from PW1 back to him before he was released on bail. However, when Abba was subsequently arrested by the Police (not EFCC) in respect of some other case, the same Appellant promptly went to the Police Station and took him out on bail. Therefore, it is based on these and so many other positive pieces of evidence in the prosecution’s case, as well as inconsistencies in the defence of the Appellant, that lent credence to the case against him. This propelled the learned trial Judge to find as follows at page 66 of the Record:
“DW1 ASP Ado Buba testified that the accused agreed to refund PW1’s money within a week and was thus released on bail and stated that within that week Abba was arrested on account of another case and that the accused went to the State CID Maiduguri and took the said Abba on bail on the ground that they will go to the Shehu’s palace for settlement. The evidence of DW1 has made nonsense of the assertions put up by the accused. If the accused knew Abba that much that he had to stand as a surety for him, why did he refuse to lead EFCC officials to apprehend him. DW1 was called by the accused and his testimony in all aspect must be accepted by the accused with all its bitterness. It is apparent that the accused knew of the falsity.”
Upon a close scrutiny of the Judgment of the lower Court, side by side with the sole issue formulated by the Court for determination, it is evident that the learned trial Judge properly evaluated and assessed the evidence adduced before him and arrived at sound findings which the Appellant has not succeeded in impugning.
I therefore uphold the decision of the lower Court that the Respondent proved the offences in counts one, two and three of the charge for:
i. obtaining money, the sum of N3, 350, 000.00k, under the false pretence of selling plots of land to PW1;
ii. deceitfully passing on a false document, to wit: The Grant of a Right of Occupancy, to PW1 knowing it to be false; and
iii. dishonestly using a false document, to wit: The Grant of the Right of Occupancy, knowing it to be forged and handing over same to PW1 with the intention of causing it to be believed to be genuine.
Consequently, I resolve the sole issue against the Appellant.
Finally, before I close the lid on this Judgment I wish to point out that the briefs of argument by both the Appellant’s Counsel and the Respondent’s Counsel leaves a lot to be desired. Counsel must bear in mind that the writing of briefs was evolved in order to assist the Court in the determination of issues in contention between the parties arising from the decision appealed against. Thus, where properly written and logically articulated, it would be of assistance to the appellate Court in resolving the issues for determination arising therefrom. Clear and well-reasoned arguments of Counsel in a brief of argument would be helpful to both sides and the Court in arriving at a just and fair decision speedily. Where however the opposite is the case, and not much diligence, research and effort is put into Brief writing, it constitutes a burden to the Court in its effort to make sense of whatever Counsel is trying to present to the Court. Clarity of argument and lucidity in presentation are paramount virtues in Brief writing. Counsel are exhorted to brush up and hone their skills in writing Briefs of argument since it is meant to be read with comprehension by both the Counsel and the Court. I believe it is apt to renew the exhortation of one of the Jurists of our time Achike, JCA (as he then was) in Gaamstac Eng. Ltd V FCDA (1988) 4 NWLR (Pt. 88) 296, 305, when he said:
“Brief writing is an art and calls for thorough mastery of the case in hand. But even when Counsel is thoroughly comfortably at home with the facts of the case and the appropriate law that would be invoked for the proper determination of the case, he is yet confronted with another hurdle. He has to express himself in his brief within the mandatory format provided under the rules for writing of briefs; in particular, he has to postulate and formulate the issues for determination which, of necessity, must relate to the existing grounds of appeal filed in respect of the appeal. Many practitioners excel and have become masters in the methodology of brief writing by sheer dint of hard work and constant practical application and exposure to writing of briefs in the course of their professional duties. But, as may be expected, many more legal practitioners are yet to show budding knowledge, not to mention a reasonable grasp of the task of brief writing. Today, mastery of brief writing is mandatory to all legal practitioners who seek audience in the Supreme Court and the Court of Appeal in this country.”
Counsel are advised to adhere to this exhortation by his Lordship when writing their Briefs of argument. They must take proper care in the discipline of brief writing so as not to allow any ineffectiveness on their part to undermine the interest of justice. The need for elegance and comprehension in brief writing is not sheer academic enthusiasm, but a necessity for the administration of justice. Indeed, the justice of a case could be lost if the simple principles of brief writing are constantly disregarded or overlooked by Counsel since this may distort or blur the appreciation of the Court on the issues involved in a case.
Finally, for all the reasons already stated, I find the appeal sorely lacking in merit. It fails and is dismissed.
Accordingly, I affirm the judgment in Charge No. BOHC/MG/CR/82/2019 delivered on 10th December, 2019 by F. Umaru, J. I also affirm the conviction and sentence.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my learned brother, JUMMAI HANNATU SANKEY, JCA, just delivered.
I agree completely with the reasoning and conclusions arrived at in the judgment that the appeal lacks merit. It is for the reasons therein contained in the lead judgment that I also dismiss the appeal as lacking in merit. Consequently, the judgment of the lower Court delivered on the 10th of December, 2019, by Hon. Justice F. Umaru in charge No. BOHC/MG/CR/82/2019 is affirmed by me.
I endorsed the consequential order as to costs.
EBIOWEI TOBI, J.C.A.: I read in draft the lead judgment just delivered by my learned brother, J. H. Sankey, JCA in which the appeal was dismissed for lacking in merit. My Lord agreed with the finding of the trial judge to the effect that the Prosecution had proved its case beyond reasonable doubt. I agree with the reasoning and conclusion reached therein. A total consideration of the evidence before the trial judge, the reasonable conclusion any Court could arrive at is to convict the Appellant and as an Appellate Court to affirm the decision of the lower Court. The evidence of PW1 and Exhibits A and C are apt in convicting the Appellant for the offences of obtaining the sum of N3,350,000.00 by false pretence and forgery contrary to Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and Sections 364 and 366 of the Penal Code, Cap 102, Laws of Borno State.
To buttress the above, I find the evidence of the witness of the Appellant who testified as DW2 found at pages 37-38 of the record very useful. My Lord in the lead judgment has reproduced the evidence and there will be no need to do so in this contribution. Evidence which shows that the Appellant did not obtain the money by false pretence and that the ‘Application for the Right of Occupancy’ was not forged is what is needed as a defence against the case of the Prosecution. This is the kind of evidence that is expected from a witness called by the Appellant in the lower Court. The evidence of DW2 is far from the expected evidence. The evidence of the DW2 shows that the Appellant admitted selling the property to Alhaji Madu Kolo Liman and collected money from him. There is evidence that the Appellant sold same fraudulently as the documents he presented as title documents were forged. The evidence of DW2 did not in any way contradict these clear evidence before the lower Court. The evidence of DW2 is contrary to the case of the Appellant. The attitude of the Court is to take seriously such evidence against the person calling him. The apex Court said this much in Odi & Ors v. Iyala & Ors (2004) LPELR-2213(SC) when it held thus:
“I cannot see better evidence against a party than one from a witness called by him, who gives evidence contrary to the case of that party. This is because the party is calling the witness to testify in favour of his case as pleaded in his pleadings. If the party knows that the witness will not give evidence in his favour, he will never call him …”
When a person calls a witness, he expects that the witness will testify in favour of his case. This evidence of the witness of the person who calls him is the best evidence in his favour. It is good as the evidence of the person that called him. If therefore such evidence is contrary to the person who called him and the witness is not declared an hostile witness, a Court will rely on same. Taking into cognizance, the evidence of DW1, along with the prosecution witnesses and Exhibits A and C, I also agree that the lower Court was right in its findings and in convicting the Appellant.
For the above reasons and much more for the fuller reasons in the lead judgment by my learned brother, J. H. Sankey, JCA, I also affirm the decision of the lower Court.
Appearances:
Idris Buba, Esq. For Appellant(s)
Mukhtar Ali Ahmed, Esq., Principal Detective Superintendent (PDS), EFCC For Respondent(s)