JAMES v. FRN & ORS
(2021)LCN/14937(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Thursday, January 14, 2021
CA/A/619C/2019
RATIO
EVIDENCE: EFFECT OF UNCONTRADICTED EVIDENCE
The law is settled that the Court must accept uncontradicted evidence as establishing the facts narrated therein, unless it is found not credible. PER STEPHEN JONAH ADAH, J.C.A.
EVIDENCE: DUTY OF THE COURT IN EVALUATION
It remains settled in our law that, a trial judge who sees and hears the witnesses giving evidence before him has the exclusive right to assess their demeanour so as to determine whether they are telling the truth or not. In the duty of evaluation, the trial Court must be mindful of not leaving out any of the parties. Justice must be for all before the Court, so the trial Court must accord all the parties their respective rights. PER STEPHEN JONAH ADAH, J.C.A.
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Yargata Byenchit Nimpar Justice of the Court of Appeal
Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal
Between
AUGUSTINE JAMES APPELANT(S)
And
1. FEDERAL REPUBLIC OF NIGERIA 2. ABDULWAHEED POPOOLA 3. CYRINUS VALENTINE RICHARD RESPONDENT(S)
STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of the Federal Capital Territory, sitting at Jabi-Abuja, delivered on the 2nd day of January, 2019; coram: D.Z. Senchi J. Wherein the appellant together with two others were charged and arraigned on an amended Six (6) counts charge bordering on the offences of Criminal Conspiracy, Obtaining Money by false pretense, forgery and using as genuine punishable under Sections 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006 and Section 364 of the Penal Code, respectively.
The amended six counts charge are reproduced as follows:
Count One:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September 29th, 2009 within the jurisdiction of the High Court of the Federal Capital Territory did conspire among yourselves to commit an unlawful act to wit: obtaining money by false pretense and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3) of Advance Fee Fraud and other Related Offences Act, 2006.
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Count Two:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September 29th, 2009 within the jurisdiction of the High Court of the Federal Capital Territory with intention to defraud did obtain the sum of N8,500,000 (Eight Million, Five Hundred Thousand Naira only) from one Engr. Ben Ogun (Director, Trainfield Builders Merchant Limited) purportedly for the sale of two plots of land described as plot ED 4 and Ed 3, within Sabon Lugbe South Extension layout with Ref: MFCT/ZA/AMAC/SLSW/ED4 dated 11th March, 1998 and ref: MFCT/ZA/AMAC/SLSW/ED3 dated 11th March, 1998 respectively to him under the false pretense that two plots of land exist which pretense you knew to be false and thereby committed an offense contrary to Section 1(1)(a) of the Advance Fee Fraud and other Fraud Related Offences Acts, 2006 and punishable under Section 1(3) of the same Act.
Count Three:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September, 29th, 2009 in Abuja within the Judicial Division of the High Court of Justice of the FCT forged a certain document captioned ABUJA MUNICIPAL AREA COUNCIL OFFER OF TERMS OF
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GRANT/CONVEYANCE OF APPROVAL with Ref: MFCT/ZA/AMAC/SLSW/ED4 dated 11th March, 1998 and did commit an offence contrary to Section 362(a) and punishable under Section 364 of the Penal Code LFN, (Abuja) 1990.
Count Four:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September, 29th, 2009 in Abuja within the Judicial Division of the High Court of Justice of the FCT forged a certain document captioned ABUJA MUNICIPAL AREA COUNCIL OFFER OF TERMS OF GRANT/CONVEYANCE OF APPROVAL with Ref: MFCT/ZA/AMAC/SLSW/ED4 dated 11th March, 1998 and caused the said document to be used as genuine and you thereby commit an offence contrary to Section 366 and punishable under Section 364 of the Penal Code LFN (Abuja), 1990.
Count Five:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September 29th, 2009, in Abuja within the Judicial Division of the High Court of Justice of the FCT forged a certain document captioned ABUJA MUNICIPAL AREA COUNCIL OFFER OF TERMS OF GRANT/CONVEYANCE OF APPROVAL with Ref: MFCT/ZA/AMAC/SLSW/ED3 dated 11th March, 1998 and did commit an offence
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contrary to Section 362(a) and punishable under Section 364 of the Penal Code LFN (Abuja), 1990.
Count Six:
That you Abdulwaheed A. Popoola, Augustine James and Cyrinus Valentine Richard on or about September, 29th 2009 in Abuja within the Judicial Division of the High Court of Justice of the FCT forged a certain document captioned ABUJA MUNICIPAL AREA COUNCIL OFFER OF TERMS OF GRANT/CONVEYANCE OF APPROVAL with Ref: MFCT/ZA/AMAC/SLSW/ED3 dated 11th March, 1998 and caused the said document to be used as genuine and you thereby commit an offence contrary to Section 366 and punishable under Section 364 of the Penal Code LFN (Abuja), 1990.
The appellant together with the other two accused persons pleaded not-guilty when the charges were read to them. Thereafter, the matter went into full trial. The prosecution in order to prove his case, called a total of Four (4) witnesses (PW1 – PW4) and tendered several exhibits which were admitted and marked accordingly. At the close of the Prosecution’s case, the appellant herein testified as DW2 while the third defendant testified as DW3.
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At the close of hearing, parties upon the order of the trial Court, filed and exchanged their respective written addresses. In a considered judgment delivered on the 2nd day of January, 2019 the trial Court convicted and sentenced the appellant with his co-accused persons accordingly as charged on counts 1 and 2, and discharged them on counts 3, 4, 5 and 6.
Dissatisfied with the judgment of the trial Court, the appellant appealed to this Court first vide Notice of Appeal filed on the 4th January, 2019 and an Amended Notice of Appeal filed on the 30th April, 2020 but deemed properly filed on 4th June, 2020; on the appellant relied in arguing this appeal.
In line with the rules of this Court, parties filed and exchanged their respective briefs of argument.
Counsel for the appellant distilled three (3) issue in the Appellant’s Brief of Argument filed on the 30th day of April, 2020 but deemed properly filed and served on the 4th day of June, 2020. The three issues are:
1. Whether the appellant was denied fair hearing/trial by the trial Court when the Honourable Lower Court failed and/or neglected to consider the evidence proffered by the defence, especially the evidence led by the appellant in
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arriving at its decision wherein it convicted and sentenced the appellant on counts 1 and 2 of the amended charge dated 10th March, 2014.
2. Whether the Honourable Court was right in law when it held that the prosecution now 1st respondent had proved the essential ingredients of the offences of conspiracy and obtaining money under false pretence against the appellant beyond reasonable doubt punishable under Section 1(3) of the Advance Free Fraud and other Related Offences Act, 2006.
3. Whether this appeal has merit and the reliefs sought therein ought to be granted by this Honourable Court as prayed?
In response, counsel for the 1st respondent distilled a sole issue for the determination of this appeal, in its Brief of Argument filed on the 11th June, 2020; thus:
Whether the 1st respondent did not prove the one count of Criminal Conspiracy and one count of Obtaining Money by false pretence against the appellant beyond reasonable doubt.
The 2nd and 3rd respondents did not file any brief.
I shall adopt the issues as submitted by the appellant in considering this appeal. I will take the issues together since they are knightly intertwined.
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Counsel for the appellant while arguing these issues posited that the first reason why parts of the judgment of the trial Court complained of cannot and should not stand is the error of the trial Court in refusing to accord the appellant fair hearing/trial, contrary to the Constitution of the Federal Republic of Nigeria (as amended). Counsel contended that the trial Court in arriving at its conclusion failed/or neglected to consider and give probative value to the evidence of the appellant and other witnesses. That all the other evidence left out by the trial Court are in favour of the appellant. Counsel pointed out the said omissions made by the trial Court at pages 261-265, 253-256, 210, 215, 216, 220-224, 226 – 227, 247 – 249 of the record of appeal). (See pages 4 and 5 of the appellant’s brief of argument). That omission amounts to denying the appellant fair hearing/trial and that same vitiates the entire trial.
Counsel further argued that by the provision of Section 36(1), (2) and (4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that the appellant is entitled to fair hearing within a reasonable time by
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an arbiter which is constituted in a manner that ensure its independence and impartiality. He cited Audu v. FRN (2013) LPELR – 19897 (SC) pp. 16 – 17 Paras. F – B, Ogbu v. FRN (2007) LPELR – 2289 (SC) p. 9 Paras B – C, Adamu & Ors. v. State (1991) LPELR – 71 (SC), Berende v. FRN (2019) LPELR – 48376 (CA), Banbowa v. Narba (2019) LPELR – 47472 (CA) and Ajewole v. The State (2019) LPELR – 48369 (CA). He emphasized that the trial Court was carried away by looking at the evidence of the prosecution alone, without turning its judicial eyes to look at that of the appellant. He urged the Court to resolve this issue in favour of the appellant.
Counsel for the 1st respondent while arguing his own sole issue stated that superior Courts have laid down the standard of proof in criminal cases which is proof beyond reasonable doubt and not proof beyond all shadow of doubt in accordance with Section 135 of the Evidence Act 2011. He cited Iortim v. State (1997) 2 NWLR (Pt. 490) 711 @ 732 G – H, Kalu v. State (1998) 13 NWLR (Pt. 583) 531 and Udo v. State (2006) All FWLR (Pt. 337) 456 @ 457.
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On Conspiracy, counsel submitted that it is one of those offences which can be predicated on circumstantial evidence which is evidence not of the fact in issue but of other facts from which the fact in issues can be inferred. That conspiracy does not consist merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. That when two or more agree to carry it into action, the very plot is an act in itself and the act of each of the parties promise against promise become criminal and therefore, punishable. Counsel maintained that there was abundant evidence placed before the trial Court from which the Court inferred conspiracy between the appellant, 2nd respondent and 3rd respondent. That it is abundantly clear that they were all working together to achieve a common purpose which was to pass off the two land allocation documents (Exhibits 1 and 2) as genuine to unsuspecting purchaser. He referred the Court to Gaji v. Paye (2003) 8 NWLR (Pt. 823) 533 @ 603 A-C. He submitted further that in order to prove conspiracy, that it is not necessary that there should be direct communication between each conspirator and every other. That what is needed to be
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established is that the criminal design is common to all of them. He cited Erim v. State (1994) 5 NWLR (Pt. 346) 522 @ 533 C – D, Nwosu v. State (2004) 15 NWLR (Pt. 897) 466 @ 486 F – H. He urged the Court to hold that the prosecution proved the one count (count two) of Obtaining Money under false pretence against the Defendants beyond reasonable doubt.
As per the issue of Obtaining Money by False Pretence, counsel submitted that the evidence of PW1, the nominal complainant in his examination in chief, testified and gave a vivid account of how he knew the 2nd defendant (now appellant) and on account of that relationship, the appellant introduced two plots for sale (exhibits 1 and 2). That the 1st and 3rd defendants (now 2nd and 3rd respondents) played ‘different role’ as owner and pointer to the land respectively. He cited Sowemimo v. State 11 NWLR (Pt. 885) PG. 515 at 5323 Para. D- H.
Counsel further posited that the fraudulent conduct of the defendants conveys the element of deceit to obtain some advantage from their victim of the fraudulent action or conduct or to cause loss to any other person. That in fraud, that there must be deceit or an
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intention to deceive flowing from the fraudulent action or conduct to the victim of that action or conduct as in the present case. He cited Onwudiwe v. FRN (2006) 10 NWLR (Pt. 988) 382 @ 431 – 432 G – H. That there is no doubt that the amount of N8,500,000 (Eight Million, Five Hundred Thousand Naira) which the defendants defrauded PW 1 is capable of being stolen. That in the light of the testimony of PW1-4 and Exhibits before the Court, that is very clear that the defendants induced PW1 to transfer total ownership of his N8,500,00 (Eight Million, Five Hundred Thousand Naira) to them.
On the whole and contrary to the submission of the counsel for the appellant, 1st Respondent’s counsel submitted that the trial Court evaluated the case of the parties before it made her findings. He urged the Court to dismiss this appeal based on the fact that the 1st respondent has made out a case of conspiracy and obtaining money by false pretence based on the testimonies of PW1 – PW4 and Exhibits tendered before the trial Court. Also that the trial Court rightly convicted the appellant based on the overwhelming evidence placed before it.
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Counsel for the appellant reproduced the findings of the trial Court which occasioned the conviction and sentence of the appellant at pages 297 – 299 of the Record of Appeal and stated that the Law of Evidence is that in criminal cases, that it is the duty of the prosecution to prove the guilt of the defendant beyond reasonable doubt. That in arriving at whether the prosecution has discharged the legal and evidential burden, that the Court ought not to look at the evidence of prosecution witnesses but should give due regard to the evidence put forward by the defendant. He cited Ibrahim v. The State (1991) LPELR – 1404 (SC), Ebenehi & Anor. v. State (2009) LPELR – 986 (SC) and Kim v. State (1992) LPELR – 1691 (SC). He emphasized that it is the duty of a Court before which a trial is conducted to admit all admissible evidence, properly evaluate them and ascribe appropriate probative value before arriving at a decision. He cited Mamman & Ors. v. Kofar-Bai (2015) LPELR – 25966 (CA), Onah v. State (1985) LPELR-2668 (SC) and Jimoh v. The State (2018) LPELR-44074 (CA). He contended that the trial Court acted as if there were no evidence on the side of the appellant to be considered.
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That the evidence of the appellant was never part of the facts analysed and evaluated by the trial Court in arriving at its decision in counts 1 and 2. He relied onIdris v. State (2014) LPELR – 23803 (CA). He maintained that where a Court based its decision not on the evidence before it, or on the evidence of only one party without considering the evidence of the other, that such decision would be perverse and liable to be set aside. He urged the Court to so hold.
Furthermore, counsel posited that if the trial Court had properly considered and evaluated and gave the necessary or deserving probative value to the evidence on tis records both on the side of the prosecution and that of the appellant, that it would have discovered several serious discrepancies and collusion of evidence which would have as of necessity cast serious doubt in the judicial mind of the lower Court as to the guilty intentions of the appellant in respect of offences charged in counts 1 and 2 of the amended charge sheet upon which the appellant was convicted. Counsel pointed out some discrepancies in the evidence of the prosecution and posited that the set of facts relied upon by
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the trial judge to infer means rea of conspiracy and obtaining money by false pretence are clearly one-sided and omitted important contradicting evidence on records. In respect of the offence of obtaining money by false pretence, counsel pointed out that the trial Court did not make findings at page 298 of the records of appeal to that effect. That where a Court convicts a defendant on circumstantial evidence, as in the instant case, that such circumstantial evidence must be cogent, consistent and irresistibly lead to the guilt of the defendant. He cited Adepetu v. The State (1998) LPELR – 135 (SC), Zubairu v. State (2015) LPELR – 40835 (SC) and Ijioffor v. State (2001) LPELR – 1465 (SC). He maintained that the evidence upon which the trial Judge drew inference and convicted the appellant are not cogent, consistent, shrouded in doubts. That the prosecution did not prove both mens rea and the actus reus of the offence of conspiracy against the appellant in the instant case.
On the issue of Obtaining Money by false pretence, counsel reproduced seven elements as contained in Odiawa v. FRN All FWLR (Pt. 436) at 447, and argued that the said elements were not
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established against the appellant, he urged the Court to so hold. That if the trial Court had considered evidence on the other side, it would have come to the realisation that there was no intention to permanently deprive the DW1 of the ownership of his money, which is the whole essence and jurisprudence behind the intention of defrauding any person. That the trial Court ought not to have convicted and sentence the appellant the way it did. He urged the Court to so find and hold.
The learned counsel submitted that the prosecution did not prove the mens rea and actus reus against the appellant in respect of the offence of conspiracy in count 1 and did not also prove the mens rea of the offence of Obtaining Money by false pretence against the appellant. He urged the Court to resolve this issue in favour of the appellant.
Counsel relied on all the submissions made and the authorities cited in support as contained in his brief of argument and submitted that this appeal has merit and that the reliefs sought therein ought to, and should be granted as prayed. He urged the Court to resolve the three issues in favour of the appellant.
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The three issues addressed by the parties in the instant appeal are key to fair determination of this appeal. From the facts before the Court, the nominal complainant who testified as PW1 had the need to buy land in the FCT.
The role of the appellant was to help conduct search on land for the nominal complainant. The appellant’s statement on oath is at pages 261 to 265. The evidence runs thus:
Then Engr. Ben came back from United Kingdom and he told me that he would live in part of my office to build an Estate. I accommodated him and we stayed together. The Engr. Ben asked me to look for another land along Airport Road for him. I searched but I could not get the land for him. He later search by himself and his brother got a land in Lugbe. He then called me that he has gotten a land and that I should come and help him conduct search. When I came, I met him with the 3rd Defendant and one Popoola. He then asked me whether I know them and I said ‘no’ He then asked me that he wants to buy land from them and I told him if he wants to buy land, he should go and conduct search himself. Then all of us entered Abuja Municipal Area Council to conduct search. Then at Abuja
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Municipal Area the person that conducted the search said the land is genuine. He wanted to pay and I asked him not to pay until we go to the land first. The following day myself, Engr. Ben and his brother Emmanuel went to the place and we met the Chief and he told us that the land is Ok. Then we returned to the office and he told me that he is going back to the United Kingdom and he gave me the money to pay Popoola. He then gave me the money together with his brother Emmanuel to meet Popoola. Then myself and Emmanuel gave the money to Popoola and he then wrote the Power of Attorney. Engr. Ben then asked us to open a file and do change of ownership for him. Later Engr. Ben returned from United Kingdom. We applied for TDP for the building but they refused to give us the TDP. We then agreed to see the owner of the land, Popoola. Then Popoola said that now that they had refused to give us the TDP whether he should give us another land and we said “yes”. He then showed us two hectares at Lugbe and Engr. Ben rejected it that it is too far. He then gave another one of 3 hectare and Engr. Ben rejected. Ben now returned to United Kingdom and left us with Popoola to
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have a replacement or return the money. Popoola said he did not have another land and that he will give me money to keep for Engr. Ben. I then called Engr. Ben and I told him. Engr. Ben said I should collect the money from Popoola. Popoola said he will give me a cheque of N5,000,000.00 and I asked Engr. Ben which name will they write on the cheque and he said they should write it in my own name. When Engr. Ben returned from United Kingdom I presented the cheque to him.
The appellant was cross-examined in the Court, yet his evidence was not shaken. He has proved in his defence that he was not among those who conspired to defraud the nominal complainant. In fact, he was on the side of the nominal complainant and made practical efforts to protect him and to help him recover the money that went into the land deal.
Let me specifically say here that the evidence adduced here by the appellant is on tangent with the issue at stake. The law is settled that the Court must accept uncontradicted evidence as establishing the facts narrated therein, unless it is found not credible.
It remains settled in our law that, a trial judge who sees and hears the witnesses
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giving evidence before him has the exclusive right to assess their demeanour so as to determine whether they are telling the truth or not. In the duty of evaluation, the trial Court must be mindful of not leaving out any of the parties. Justice must be for all before the Court, so the trial Court must accord all the parties their respective rights.
In the instant case, the appellant clearly from his evidence showed that he was not involved in committing the offences for which he was convicted and sentenced. I agree with the learned counsel for the appellant that the defence of the appellant was not considered. His evidence was completely ignored by the trial Court, thereby causing a breach of his fundamental right to fair hearing. It is very clear in the instant case that, the appellant was not proved to be involved in the offence for which he was convicted and sentenced. The appellant clearly was wrongly convicted and sentenced in this case.
From the foregoing, I hold firmly that all the issues raised are resolved in favour of the appellant.
The appeal has merit and it is hereby allowed. The conviction and sentence of the appellant cannot
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stand. They are set aside. The appellant is accordingly discharged and acquitted in this case.
I order that he be released immediately.
YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA and am in agreement with his reasoning and conclusion arrived at therein.
ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the opportunity of reading the lead Judgment of my learned brother, Stephen Jonah Adah, JCA.
I agree with the reasoning and conclusion in setting aside the appeal, and abide by the order in discharging and acquitting the Appellant.
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Appearances:
F.K. KHAMAGAM, ESQ., with him, RICHARD EDISON, ESQ. For Appellant(s)
FARUK ABDULLAH, ESQ. – for 1st Respondent
EJEH MONDAY EJEH, ESQ., for 3rd Respondent, also holding the brief of SALAU IBRAHIM, ESQ. – for 2nd Respondent For Respondent(s)
