KALU v. STATE
(2022)LCN/16977CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, March 18, 2022
CA/OW/103C/2016
Before Our Lordships:
James Gambo Abundaga Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
NDUEKWOLA KALU APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE MEANING OF THE TERM “CONFESSION”
Section 28 of the Evidence Act 2011 defines:
“Confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
In Egbeyom V. State (2000) 4 NWLR (Pt. 654) at 559, it was held:
“A confession is an extra judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused.” Niki Tobi, JCA (as he then was) in Ganiyu Gbadamosi V. State (1991) 6 NWLR (Pt. 196) at 182 stated thus:
“Because of the importance attached to confessional statement in the administration of our criminal process, a trial Judge must be very sure and satisfied that a statement is really a confessional statement and not a caricature of it.”
To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must, in so doing, be clear, precise and unequivocal. See Gbadamosi V. State (supra). PER BOLA, J.C.A.
THE MEANING OF OBTAINING BY FALSE EVIDENCE
Obtaining by false pretenses means “knowingly obtaining another persons property by means of a misrepresentation of fact with intent to defraud”. See Bryan A. Garner A Dictionary of Modern Legal Usage – Second Edition page 348.
Niki Tobi JSC in Dr. Edwin Onwudiwe V. FRN 26 NSCQR 257 at 306 held that for the offence of obtaining by false pretences to be committed the prosecution must prove that the accused had an intention to be fraudulent and the thing is capable of being stolen.
In order to succeed in respect of the offence of obtaining by false pretense, the prosecution must prove the following constituent elements:-
(a) The making of the pretence
(b) That the money was obtained thereby
(c) With intent to defraud
(d) That the pretence was false to the knowledge of the accused. PER BOLA, J.C.A.
THE MEANING OF THE TERM “INTEND TO DEFRAUD”
In Section 419 of the Criminal Code the words “intend to defraud” means an intent to deceive in such a manner as to expose any person to loss, or the risk of loss.
It was held inR V. Furling Empire Digest page 1006 that “an intent to defraud means an intent to deceive in such a manner as to expose any person to loss of the risk of loss.” Again in R V. Newton and Bennet, 9 Crim. App.R. 146 the Court of Appeal in England approved the definition “deceive and fraud” given by Bucklay J in Re: London Globe and Finance Corporation Ltd (1903) 1. Ch. 728 where he said “to deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit is to deprive by deceit; it is by deceit to induce a man to act to his injury”. PER BOLA, J.C.A.
ADEMOLA SAMUEL BOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Abia Judicial Division, Abia State delivered by Hon. Justice T.U. Uzokwe on 12th day of June 2014.
Dissatisfied with the decision of the lower Court the Appellant filed his original Notice of Appeal at the lower Court on 11/9/2014. The Record of Appeal was deemed transmitted to this Court on 25/1/2019. The Appellant’s Brief of Argument was filed on 22/5/2018 but deemed filed on 20/1/2019. The Respondent’s Brief of Argument was filed on 13/2/2019. The Appellant’s Reply Brief of Argument was filed on 4/3/2019.
BACKGROUND FACTS
The Appellant was alleged to have collected the sum of Sixteen Thousand Dollars ($16,000) and Three hundred thousand Naira (N300,000) from one Samuel Onwuka in pretence that he was going to procure a visa to Japan for him and also ship some electronics for him which the Appellant failed to do and which money he did not return and after an initial agreement of the amount of money to be refunded. The said Samuel Onwuka invited the police who then arrested the Appellant and arraigned him in Court on a two count charge as follows:
STATEMENT OF OFFENCE
STATEMENT OF OFFENCE COUNT 1
OBTAINING BY FALSE PRETENCE, contrary to Section 1(i), of the Advance Fee Fraud and other Fraud Related Offences Act, Cap. A6, Laws of the Federation of Nigeria, 2004, as applicable to Abia State.
PARTICULARS OF OFFENCE
Nduekwola Kalu, on or about the 15th day of December, 2005 at Cameroon, “triable” within the Aba Judicial Division, with intent to defraud obtained the sum of Sixteen thousand U.S. Dollars ($16,000) from Samuel Onwuka, by falsely representing to him that you will ship some electronic machines from Japan to him, which you failed to do.
STATEMENT OF OFFENCE COUNT 2
OBTAINING BY FALSE PRETENCE, contrary to Section 1(i), of the Advance Fee Fraud and other Fraud Related Offences Act, Cap. A6, Laws of the Federation of Nigeria, 2004 as applicable to Abia State.
PARTICULARS OF OFFENCE
Nduekwola Kalu, in December, 2005 at Terminus Hotel Annex, Aba, within the Aba Judicial Division, with intent to defraud obtained the sum of three hundred thousand naira (N300,000.00) from Samuel Onwuka, by falsely representing to him that you will obtain a visa to Japan for him, which you failed to do.
ISSUES FOR DETERMINATION
The Appellant Counsel, in his brief formulated the following issues for determination:
1. Whether the lower Court has the jurisdiction or authority to have entertained the counts in the information preferred against the Appellant from the circumstances of this case (Ground 3).
2. Whether the lower Court was right in holding that the prosecution proved the counts in the information beyond reasonable doubt (Grounds 1, 2 and 10).
3. Whether the learned trial Judge was right in holding that the Appellant made a confessional statement (Grounds 4 and 5).
4. Whether the learned trial Judge was right in making the Order of restitution against the Appellant and in favour of Samuel Onwuka (Ground 9).
5. Whether the trial Judge was right in its decision that the Appellant was fraudulent in his dealings with the complainant Samuel Onwuka (Grounds 6 and 7).
ARGUMENT OF ISSUES
ISSUE ONE
On whether the lower Court has the jurisdiction and/or authority to have entertained the counts in the information preferred against the Appellant from the circumstances of this case. Counsel referred to the Advanced Fee fraud and other fraud Related Offences Act, Cap. A6 LFN 2004 applicable to Abia State.
It was submitted that the law under which the Appellant was tried was a Federal Enactment. It was urged that under a Federal Structure of Government, a State Attorney General could not prosecute a charge under a Federal Statute without the fiat of the Attorney General of Federation. Referred to the cases Anyebe V. State (1986)1 NWLR (Pt. 15) 39; Mandara V. A.G. Federation (1984) 4 SC8, 27; A.G. Kaduna V. Hassan (1985) 2 NWLR (Pt. 8) 483. He submitted that it was not shown that the Attorney General of the Federation had delegated its power to the Attorney General of Abia State under Section 213 (4) of the Criminal Procedure Act to prosecute this charge. That in the light of the incompetence of the prosecution to lay the charge, it became apparent that the trial and conviction of the Appellant was a nullity Counsel referred to the decision of Lokulo-Sodipe JCA of Owerri Division in CA/OW/240C/2015; Ephraim Ike Okafor V. State in Judgment delivered on 5th day of February 2018. Counsel urged the Court to resolve the above issue in favour of the Appellant.
On the 2nd issue that is whether the lower Court was right in its decision that the prosecution proved the count in the information beyond reasonable doubt, it was submitted that the prosecution could not prove the charge.
It was submitted that considering the sum total of the evidence led by the prosecution against the Appellant, there was no basis for the conviction of the Appellant as the evidence preferred did not meet the requirement of proof beyond reasonable doubt. Referred to the case of Shehu V. State (2010) 8 NWLR (Pt. 1195) at 112.
It was submitted that in Count 2, the agreement and the money purportedly given was in Cameroon and not in Aba, Abia State or even in Nigeria. That it followed therefore that the Court had no jurisdiction in the first place to hear the charge or make pronouncement of guilt against the Appellant. That the evidence of the prosecution witnesses consist of contradiction, conflicts and inconsistencies. Also that the transaction was aborted by the complainant himself when he decided that he was no longer interested in travelling and/or in any electronics but preferred that his money be returned to him. That this is borne out by the evidence of the PW1 Samuel Onwuka.
That the evidence of the DW1 confirmed by the evidence of the PW1 to the effect that the Accused/Appellant had in furtherance of the agreement with him obtained several documents that will aid in his travel. That this was admitted by the PW1.
It was argued that PW2 the IPO never conducted any meaningful investigation of the complaint. Her evidence was clear that she never visited Cameroon where the money was given and where procurement of different documents took place including the Embassy that should have issued the visa.
That by reason of the above evidence and shoddy investigation conducted by the IPO, the prosecution did not prove its case beyond reasonable doubt. Counsel urged the Court to resolve the issue in favour of the Appellant.
ISSUE NO. 3
Whether the learned trial Judge was right in holding that the Appellant made a confessional statement.
It was submitted that going by the records before the Court there was no confessional statement made by the Appellant upon which the trial Court could hold that a confessional statement was made. Counsel referred to excerpt of the judgment of the lower Court at pages 77–78 of the record and Section 28 of the Evidence Act.
Counsel referred to the case Egbeyom V. State (2000) 4 NWLR (Pt. 654) 559; Ganiyu Gbadamosi V. State (1991) 6 NWLR (Pt. 196) at 182. That in his statement to the police, the Appellant never admitted he committed the offence.
Issue No. 4 raises the question whether the learned trial Judge was right in making the Order of restitution against the Appellant and in favour of Samuel Onwuka. Counsel referred to the judgment of the lower Court where it ordered as follows:
“restitution of all monies taken from PW1 is hereby ordered”.
Counsel referred to page 80 of the Record of Appeal where the application was made and Section 11 of the Advance Fee Fraud and Other Related Offence Act to the effect that before the order could be made there must be proof of the loss which has been sustained and the proof must be by the prosecution. It was argued that there was no clear acceptable proof of whatever loss upon which an order of restitution could be made. Further to this, it was argued that the Court did not make any clear cut order as to the amount for restitution. That the Order was based on the submission of prosecution which was wrong. Therefore there was no basis for the order of restitution.
ISSUE NO. 5
Is whether the learned trial Judge was right in its decision that the Appellant was fraudulent in his dealings with the complainant Samuel Onwuka.
It was submitted that the holding of the learned trial Judge that the Appellant’s dealing with the complainant was fraudulent which led to the conviction of the Appellant was not borne out of the record. That the Appellant travelling from Cameroon to his village at Abiriba which was the basis for the holding of the fraudulent act should not have been a reason for the holding. That relocation from one place to another without more could not in anyway be deemed to be fraudulent.
The Appellant’s Counsel urged the Court to allow the appeal.
RESPONDENT’S BRIEF
The Respondent formulated four issues in its Brief of Argument. They are couched as follows:
1. Whether, from the totality of the evidence in this suit at the trial Court, it could be rightly said that the Consent/fiat of the Attorney General of the Federation was not obtained before instituting this suit against the Appellant to deny or deprive the trial Court the necessary jurisdiction to entertain the suit.
2. Whether the trial Court was right in holding that the Appellant made a confessional statement.
3. Whether the lower Court was right in holding that the two counts of obtaining by false pretense and with intent to defraud, preferred against the Appellant were proved beyond reasonable doubt by the prosecution.
4. Whether the learned trial Judge was right in making an order of restitution against the Appellant and in favour of Samuel Onwuka.
In respect of issue No. 1, Counsel conceded that the offences for which the Appellant was charged are created by Federal law which could only be prosecuted by the Attorney General of the Federation in person or through officers of his department or by others upon the delegated authority of the Attorney General of the Federation. It was submitted that there was nothing on the record of proceedings of the trial Court to show that the requisite consent/fiat of the Attorney General of the Federation was not obtained before the Attorney General of Abia State filed the 2 counts information before the Abia State High Court against the Appellant.
It was equally submitted that the issue of the absence of the consent/fiat of the Attorney General of the Federation before the action was instituted by the Attorney General of Abia State was not raised at the lower Court. That issues were not joined in respect of it at the lower Court.
It was Respondent’s Counsel contention that under Section 108 (1) and (2) of the Evidence Act 2011 that there is a presumption in favour of the Attorney General of Abia State that the Consent/fiat of Attorney General of the Federation was obtained before the action was filed against the Appellant. That the onus lies on the Appellant who asserted the contrary that is, that the consent was not obtained to disprove the presumption that it was obtained. That he who assert must prove. Counsel cited the case Okeke V. State (2003) 15 NWLR (Pt. 842) 25 at 102; Torri V. National Park Service of Nigeria (2011) 13 NWLR (Pt. 1264) 365 on presumption of regularity of a Judicial act.
It was also argued that the judgment of the Court of Appeal delivered by Lokulo Sodipe, JCA could not be relied upon as an authority in this appeal as it has no citation and unreported.
Counsel urged the Court to resolve the issue in favour of the Respondent.
Issue No. 2.
It is whether the trial Court was right in holding that the Appellant made a confessional statement.
Counsel referred to Section 28 of the Evidence Act and the cases Olamolu V. State (2013) 2 NWLR (Pt. 1339) 580; Gbadamosi V. State (1991) 6 NWLR (Pt. 196) 182; Dele V. State (2011) 1 NWLR (Pt. 1229) 508 and State V. Salawu (2011) 8 NWLR (Pt. 1279) 580 on the definition of confession and confessional statement.
It was submitted that all the ingredients of a confessional statement as specifically provided for in Section 28 of the Evidence Act, 2011 and in a long line of cases were available in the Appellant’s extra Judicial statement. That the Appellant’s statement contain facts suggesting admission that he committed the crime. It was submitted that a confessional statement voluntarily made by an accused person, without duress, or compulsion or inducement suffices for the Court to convict for the crime charged referred to Adeyemi V. State (2011) 5 NWLR (Pt. 1239)1. Counsel urged the Court to hold that Exhibit ‘D’ the extra-judicial statement of the Appellant was a confessional statement upon which the trial Court was right to have convicted the Appellant.
The 3rd issue is whether the Court was right in holding that the two counts of obtaining by false pretense and with the intent to defraud preferred against the Appellant were proved beyond reasonable doubt by the prosecution.
It was submitted that the prosecution discharged the burden of proof placed on it and proved the ingredients of the two counts of false pretences preferred against the Appellant.
It was submitted that there were sufficient evidence in the record of proceedings of the lower Court showing that the Appellant committed the offence for which he was charged.
It was equally submitted that the two counts of false pretense were proved beyond reasonable doubt against the Appellant.
On issue No. 4, the question is whether the learned trial Judge was right in making an order of restitution against the Appellant in favour of Samuel Onwuka.
Counsel contended that the Appellant’s submission in respect of the grant of order of restitution in favour of the complainant Samuel Onwuka was grossly misconceived and erroneous. It was argued that Section 11 of the Act presupposes an action of the trial Court post-conviction that is after conviction of the accused. It was argued that Section 11 was complied with before the order of restitution was made. That is the decision by the trial Court to order restitution of the various sums of money lost to the Appellant by the victim – PW1 was within the discretionary post-conviction powers invested on the Court by Section 11 of the Advance Fee Fraud and Other Related Offences Act (supra).
Finally, Counsel urged this Court to affirm the judgment of the lower Court and dismiss the appeal.
I have considered the issues formulated by the parties to this appeal which issues are of the same similitude. However, this Court is inclined to adopt the four issues postulated by the Respondent for the purpose of determining the merit or otherwise of this appeal. The issues are recapitulated hereunder subject to necessary modification:
1. Whether from the information/charge placed before the lower Court it was mandatory for the Attorney General of Abia State to obtain the fiat/consent of the Attorney General of the Federation before filing the charge.
2. Whether the trial Court was right in holding that the Appellant made a confessional statement.
3. Whether the lower Court was right in holding that the Respondent established its case beyond reasonable doubt in respect of the two counts charge of obtaining by false pretense.
4. Whether the learned trial Judge was right in making an order of restitution against the Appellant and in favour of Samuel Onwuka the complainant.
The first issue deals with the question whether it was mandatory and/or necessary for the Attorney General of Abia State to obtain a fiat of the Attorney General of the Federation before preferring the charge against the Appellant. It was the contention of the Appellant’s Counsel that the offences for which the Appellant was charged are offences created by Federal legislation which could not be prosecuted by the Abia State Attorney General without the consent /fiat of the Attorney General of the Federation.
The Respondent’s Counsel conceded that the offence for which the Appellant was charged were offences created by a Federal law which can only be prosecuted by the Attorney General of the Federation in person or through officers of his department or by others upon the delegated authority of the Federal Attorney General. That there was nothing in the record of proceedings at the trial Court to show that the requisite consent/fiat of Attorney General of the Federation was not obtained before the Attorney General of Abia filed the information against the Appellant.
It is patently clear that the Appellant was charged under the Advanced Fee Fraud and Other Fraud Related Offences Act Cap. A6, Laws of the Federation of Nigeria 2004 applicable to Abia State. It is equally clear that the law under which the Appellant was charged is a Federal enactment, an Act of the National Assembly.
Section 174(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:
174(1) The Attorney General of the Federation shall have power:
(a) To institute and undertake criminal proceedings against any person before any Court of law in Nigeria, other than a Court – martial in respect of any offence created by or under any Act of the National Assembly.
(b) To take over and continue any such criminal proceedings that may have been instituted by any other authority or person; and
(c) To discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by him or any other authority or person.
Sub section 2 of Section 174 provides:
(2) The powers conferred upon the Attorney General of the Federation under Sub-section (1) of this section may be exercised by him in person or through officers of his department.
Further to the above Section 104 (1) and 2 of the Administration of Criminal Justice Act 2015 has the following provisions in relation to the power of the Attorney-General of the Federation: Section 104 states:
104. (1) The Attorney General of the Federation may prefer information in any Court in respect of any offence created by an Act of the National Assembly.
(2) The Attorney General of the Federation may authorize any person to exercise any or all the powers conferred on him under this section.
A community reading of the above provision crystal clearly reveals that it is the Attorney General of the Federation that is endowed with the power to institute or prefer actions in any Court in respect of the offences created by an Act of the National Assembly. The corollary is that no other person or authority can so do that is, prefer such action in respect of offences provided for under an Act of the National Assembly. However, both the Constitution and the Administration of Criminal Justice Act enable the Attorney General of the Federation to donate the power to prefer action or prosecute an offence in a Federal enactment to an officer in his department or any other person he may authorize to exercise any of such powers conferred on him.
Undoubtedly, the Advance Fee Fraud Act is one of those Federal enactments enacted by the Act of the National Assembly that is within the sole ambit of the Attorney General of the Federation to prefer information and prosecute, or delegate such power to any other person by way of fiat. In this appeal, it is the Appellant’s contention that the fiat/consent of the Attorney General of the Federation was not obtained before the institution and the prosecution of the charge at the lower Court by the Attorney General of Abia State, therefore, the lower Court had no jurisdiction to adjudicate in respect of the Information against the background of failure to obtain fiat.
It was the Respondent’s contention that the Appellant had the duty to prove that the fiat was not obtained by the prosecution that there is a presumption of regularity by virtue of Section 168 (1) and (2) of the Evidence Act 2011.
Whose duty is it to establish that a fiat exist or was obtained? Is the onus on the Appellant who asserted the negative that no fiat was obtained by the Respondent. Is it the Respondent (the prosecution) to prove that a fiat was obtained in it is case, that is asserting the positive?
In the opinion of this Court, the burden is on the party that assert the positive. This is against the backdrop of Section 136 (1) of the Evidence Act 2011 which provides that:
“The burden of proof as to any fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of the fact shall lie on any particular person but the burden may in the course of a case be shifted from one side to the other”.
In the case of Fayemi V. Oni & Ors (2010) 17 NWLR (Pt. 1222) 326 at 357, (2010) 17 NWLR (Pt. 1222) 326 at 357 this Court held as follows:
“The burden of introducing evidence otherwise known as evidential burden squarely rests on the party who substantially asserts the positive before the evidence is adduced. Thereafter the burden of proof rests on the party who will fail if no further evidence is produced”.
Flowing from the provision of Section 136 (1) of the Evidence Act, 2011 and the decision in Fayemi V. Oni (supra), it is obvious that the evidential burden is on the Respondent who asserted the positive that the prosecution obtained the fiat of the Attorney General of the Federation prior to the institution of the charge at the lower Court. Discharging this burden is not just by mere assertion that the fiat was obtained evidence must be produced to discharge the onus. The evidential burden was not discharged by the Respondent.
In other words, no fiat was obtained by the prosecution from the Attorney General of the Federation prior to the filing of the charge/information.
There is no doubt under Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, the trial Court in the instant case has jurisdiction to adjudicate in respect of the offence. However, the condition precedent to adjudication must have been satisfied, that is the Attorney General of the Federation must have granted a fiat to the prosecution. No fiat was obtained. The absence of a fiat questions the jurisdiction of the lower Court to entertain the criminal action and render the prosecution impotent to prosecute. Nothing to show that the Attorney General of the Federation delegated his powers to the Attorney General of Abia State.
Further to the above I refer to the decision of my learned brother Lokulo-Sodipe JCA in the case decided at the Owerri Judicial Division of the Court of Appeal, in CA/OW/240C/2015 Ephraim Ike Okafor V. State delivered on 5th February 2018. This Court held as follows:
“Having regard to all that has been said hereinbefore regarding the prosecutorial powers of the A.G, Federation vis-a-vis that of the A.G of a State under the amended 1999 Constitution, it becomes obvious in my considered view, that in as much as the A-G Abia is by law not an officer in the department of the A-G Federation and as the Advance Fee Fraud and other Related Fraud Offences Act cannot be said to be an Abia State Law (even though it is in operation and can be enforced in the State), the A-G Abia cannot in his own right properly or validly institute by himself or through an officer of his department, criminal proceeding under the aforementioned Act. He requires a fiat in my considered view. The offence under the Advance Fee Fraud and other Related Offences act preferred against the Appellant in count 1 in the information and in respect of which the lower Court found the Appellant guilty and sentenced him to 10 years imprisonment, therefore was invalid in law in as much as it was preferred by the wrong person or authority who/which had no express or implied power to have laid a charge under the Advance Fee Fraud and other Related Offences Act and the trial of the Appellant in respect of the count, I cannot but say amount to nothing more than a nullity”.
In Anyebe V. State (1986)1 NWLR (Pt. 14) 39 at 43 the accused was prosecuted for the offence of possessing a double-barreled short gun without a valid license contrary to Section 4 of the Firearm Act 1958, as amended by the Firearms (Amendment) Decree No. 31 1966. The Firearm Act, as amended is deemed to be an Act of the National Assembly, therefore the offence contained in it is a Federal offence. The Attorney General of Benue State initiated a criminal proceeding against the accused for the offence of being in possession of firearms without a valid licence.
On appeal against conviction, a unanimous Supreme Court held that the offence, being a Federal offence could only be prosecuted by the Federal Attorney General. The State Attorney has no power to prosecute the offence, save where there has been an express delegation from the Federal Attorney General to the State Attorney General. Thus the appeal was allowed.
Applying the above decisions for the case on hand, it is unequivocal that a State Attorney General cannot prosecute in respect of offences contained in a Federal enactment such as the one in hand without the authorization or consent or fiat of the Attorney General of the Federation. Prosecution short of the delegation of the Attorney General of the Federation is an exercise in futility. A nullity. The action of the Respondent at the lower Court fails within the ambit of action prosecuted by the State Attorney General without the authority of the Attorney General of the Federation. It is indeed a nullity. An exercise in futility.
Consequently, issue No. 1 is resolved in favour of the Appellant.
The 2nd issue is whether the trial Court was right in holding that the Appellant made a confessional statement. It was Appellant Counsel’s argument that the Appellant never made confessional statement to the police and never admitted in his statement he committed any offence.
Was the statement made by the Appellant to the police on 10/7/2012 a confessional one? I have gone through the statement of the Appellant to the police. Therein, the Appellant admitted the transaction between him and the complainant Samuel Onwuka in respect of the attempt he made to obtain a visa for him (Onwuka). The statement does not appear to be a confession. The Appellant never admitted he was being fraudulent in his dealing with the complainant. That he made attempts to obtain the visa but could not succeed due to extra monetary demand made by the Japanese Embassy before the visa could be issued. That he had refunded part of the money to the said Samuel Onwuka. That he had once obtained visa for Onwuka’s brother.
Section 28 of the Evidence Act 2011 defines:
“Confession” as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime”.
In Egbeyom V. State (2000) 4 NWLR (Pt. 654) at 559, it was held:
“A confession is an extra judicial statement made by an accused person to the police containing assertion of admission showing that he participated in the commission of the offence for which he stands accused.” Niki Tobi, JCA (as he then was) in Ganiyu Gbadamosi V. State (1991) 6 NWLR (Pt. 196) at 182 stated thus:
“Because of the importance attached to confessional statement in the administration of our criminal process, a trial Judge must be very sure and satisfied that a statement is really a confessional statement and not a caricature of it.”
To constitute a confession, a statement must admit or acknowledge that the maker thereof committed the offence for which he was charged. It must, in so doing, be clear, precise and unequivocal. See Gbadamosi V. State (supra).
In the opinion of this Court, the statement of the Appellant to the police is not clear, imprecise and equivocal. It does not admit the offence which the Appellant was alleged to have committed. Arising therefore, this Court holds that the Appellant never made a confessional statement to the police. The trial Court erred when it held that the Appellant made a confession. Issue No. 2 is hereby resolved in favour of the Appellant.
ISSUE THREE is whether the lower Court was right in holding that the Respondent proved its case beyond reasonable doubt in respect of the two counts charge of obtaining by false pretense. The Appellant’s Counsel submitted that the prosecution did not prove the charge against the Appellant beyond reasonable doubt to warrant his conviction.
Counsel referred to the evidence of the PW1 – Samuel Onwuka. He testified that he wanted to travel. He made his intention known to his in-law who connected him to the Appellant for assistance in that respect. He contacted the Appellant who told him (PW1) he (Appellant) will pay N300,000 and remit the sum of $20,000 dollars to Japan before they would be issued.
That he gave N300,000 to the Appellant in Nigeria and travelled to Cameroon to give the sum of 16,000 dollars. He (Appellant) started preparing the visa for Japan. He was still processing it when in December he (Appellant) told him (PW1) that some Japanese people had gone on holidays and that he (PW1) – Onwuka should return in January 2016. He told the Appellant he would not go back to Nigeria and was no longer interested in going to Japan. That the Appellant should refund the sum of sixteen thousand dollars. The Appellant told him he had already remitted the money to his business partners. That if he requested for a refund, the foreigners will not give him sixteen thousand dollars but Eleven thousand dollars. He agreed with the Appellant for the eleven thousand dollars.
The PW2 was Nwango Benneth the IPO he admitted that he did not visit Cameroon where the whole transaction took place he did not visit the Japanese Embassy in Cameroon to confirm the story of the interview he attended for visa by PW1.
Section 1(1) of the Advanced Fee Fraud and Other Related Offences Act (supra) under which the Appellant was charged and convicted provides:
(1) “Notwithstanding anything contained in any other enactment or law, any person who by any false pretense, and with intend to defraud.
(a) Obtain from any other person, in Nigeria or in any other country, for himself or any other person, or
(b) Induces any other person, in Nigeria or in any other country, deliver to any person property, whether or not the property is obtained of its delivery is induced through the medium of contract induced by the false pretense, commits an offence under this Act”.
From the facts placed before the lower Court, it is evidentially clear that the Appellant admitted being in a position to procure Japanese visa for the PW1 for a fee of N300,000. Evidence was also led to the effect that the visa was not obtained. According to the Appellant, the visa was not issued because the PW1- Samuel Onwuka failed to pay the additional sum required by the Japan Embassy to facilitate the issuance of the visa. It is to be noted that the Appellant did not admit that sixteen thousand Dollars was given to him for shipment. The statement of the Appellant to the police did not reflect this.
The question demanding an answer is whether there is element of fraud or misrepresentation in the transaction between the Appellant and the said Samuel Onwuka over the procurement of visa. Was there any element of obtaining by false pretenses in the whole transaction?
Obtaining by false pretenses means “knowingly obtaining another persons property by means of a misrepresentation of fact with intent to defraud”. See Bryan A. Garner A Dictionary of Modern Legal Usage – Second Edition page 348.
Niki Tobi JSC in Dr. Edwin Onwudiwe V. FRN 26 NSCQR 257 at 306 held that for the offence of obtaining by false pretences to be committed the prosecution must prove that the accused had an intention to be fraudulent and the thing is capable of being stolen.
In order to succeed in respect of the offence of obtaining by false pretense, the prosecution must prove the following constituent elements:-
(a) The making of the pretence
(b) That the money was obtained thereby
(c) With intent to defraud
(d) That the pretence was false to the knowledge of the accused.
In Section 419 of the Criminal Code the words “intend to defraud” means an intent to deceive in such a manner as to expose any person to loss, or the risk of loss.
It was held inR V. Furling Empire Digest page 1006 that “an intent to defraud means an intent to deceive in such a manner as to expose any person to loss of the risk of loss.” Again in R V. Newton and Bennet, 9 Crim. App.R. 146 the Court of Appeal in England approved the definition “deceive and fraud” given by Bucklay J in Re: London Globe and Finance Corporation Ltd (1903) 1. Ch. 728 where he said “to deceive is to induce a man to believe that a thing is true which is false and which the person practicing the deceit is to deprive by deceit; it is by deceit to induce a man to act to his injury”.
There is no doubt in the appeal under consideration, there was a representation by the Appellant to the effect that he would assist the complaint – Onwuka to obtain a Japanese visa. He got the sum of N300,000 from Onwuka to this effect.
The visa was not obtained. The complainant testified that he knew the Appellant through his brother-in-law. This is in tandem with the evidence of the Appellant that he knew the complainant through his brother whom he had previously assisted to obtain a visa. It is quite revealing that the Appellant and the PW1 (complainant) came in contact with each other through a relation of the complainant. This Court will therefore not believe that the Appellant made a representation to the complainant with the intention to defraud him and to make him to part with his money. Having assisted the relation of the complainant to obtain visa previously, I do not think the representation made by the Appellant over the issue of visa amount to a fraudulent act nor was it made to induce the complainant to part with his money. This Court does not believe the Appellant made a false pretence to induce him – the complainant to part with his property – the money said to have been given to the Appellant for the procurement of visa.
Furthermore, no evidence was led to the effect that the pretence was false to the knowledge of the Appellant – the accused or the lower Court. I do not think the Appellant had the intention to defraud the complainant – Onwuka due to the failure to obtain the visa. No evidence was led by the prosecution that the Appellant made a representation which was false or falsely represented as an existing fact, which was not an existing fact and as a result obtained the complainant’s money.
A holistic consideration of the evidence of both the prosecution and Appellant evidence does not reveal false pretences or fraudulence made with the intent to defraud or induce the complainant to part with his money on the account of procuring visa for him.
In conclusion, the charge of obtaining by false pretences was not proved beyond reasonable doubt by the prosecution. The conviction of the Appellant cannot be sustained in view of this conclusion. The third issue is accordingly resolved in favour of the Appellant.
The fourth issue is whether the learned trial Judge was right in making an order of restitution in favour of Samuel Onwuka the complainant. In arguing this issue, the Appellant’s Counsel referred to Section 11 of the Advance Fee Fraud Act to the effect that before the Order could be made by the Court, there must be proof of the loss which has been sustained and the proof must be by the prosecutor. It was argued that there was no clear proof of whatever loss upon which an Order of Restitution could be made. In response, the Respondent’s Counsel argued that Section 11 of the Act was complied with before the Order of Restitution was made and that the PW1- victim of the alleged offence was within the discretionary post-conviction powers invested on the Court by Section 11 of the Act.
Section 11 of the Advance Fee Fraud and Other Fraud Related Offences Act provides:
11 (i) “In addition to any other penalty prescribed under this Act, the High Court shall order a person convicted of an offence under this Act to make restitution to the victim of the false pretence or fraud by directing that person.
(a) Where the property involved is money to pay to the victim an equivalent to the loss sustained by the victim; in any other case – (i) to return the property to the victim or to a person by him,; or (ii) to pay an amount equal to the value of the property, where the return of the property is impossible or impracticable.
(2) An Order of restitution may be enforced by the victim or by the victim or the prosecutor on behalf of the victim in the same manner as a judgment in a civil action.
It is quite obvious from Section 11 aforesaid that the High Court is empowered to grant an Order of Restitution in favour of the victim of the offence upon the conviction of the offender. The lower Court convicted the Appellant of the offence of obtaining by false pretences to the tune of N300,000: belonging to the complainant – Samuel Onwuka. Order of Restitution is a post-conviction power that is exercisable by the lower Court.
The restitution Order made by the trial Court pursuant to this Section of Law is clearly not without basis. The law empowers the Court to grant the order of restitution in favour of the victim of the offence upon the conviction of the offender. That being so, restitution can be ordered after as was done in the case. The trial Court could not have awarded restitution before deciding the guilt of the accused person because that would have been premature. The restitution is clearly in addition to any penalty the Court may award as was done in the case by the trial Judge. The trial Court does not have to investigate further or rely on whether the Appellant has money in his account before restitution can be ordered under Section 11. Having found the accused guilty of the offence, it is no longer necessary to prove any loss by the prosecution. Conviction is suffice to prove or establish a loss by the victim of the offence as in the case in the lower Court. In any case, the Appellant admitted that he received the sum of N300,000 from the complainant to obtain visa of Japan in which he was unsuccessful.
The lower Court having convicted the Appellant was endowed with necessary powers under Section 11 of the Advance Fee Fraud Act to Order restitution. Now the big question: Can this order of restitution stand should the decision of the trial Court be set aside by this Court?
Revisiting issue No.4, this Court holds that the lower Court was right when it granted the order of restitution upon the conviction of the Appellant. An Order granted pursuant to the provision of Section 11 of the Advance Fee Fraud Act (supra), having convicted the Appellant. An Order that stands if the conviction stands.
In conclusion, issue 1, 2 and 3 are resolved in favour of the Appellant. The corollary of this is that the conviction of and the sentence of the Appellant cannot be sustained. They are subject to being set aside including the order made by reason of the conviction of the Appellant.
Arising from the foregoing, this appeal succeeds. The judgment of the lower is accordingly set aside. The conviction and sentence are quashed. Consequentially, the Order of Restitution made by the lower Court is set aside. The Appellant is discharged and acquitted.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Samuel Ademola Bola, JCA.
The reasoning and conclusion reached therein are agreeable to me. Therefore, I adopt it as mine; and in consequence, I too allow the appeal.
I abide by the consequential orders made In the lead judgment.
IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading the draft of the lead judgment delivered by a learned brother Samuel Ademola Bola, JCA. I am in agreement with my brother in his reasoning and conclusion.
I only need to add that Section 104 (1) and (2) of the Administration of the Criminal Justice Act, 2015 empowers only the Attorney-General of the Federation to prefer charges in respect of any offence created by an Act of National Assembly. The Section states:
“104 (1) The Attorney General of the Federation may prefer information in any Court in respect of any offence created by an Act of the National Assembly.
(2) The Attorney General of the Federation may authorize any person to exercise any or all the powers conferred on him under the section”.
In the instant case, it was nowhere shown that the Respondent obtained a fiat of the Hon. Attorney General to prosecute the offence in question and the lack of the fiat robs the trial Court of the jurisdiction to hear the case.
It is for this reason and the fuller reasons stated in the lead judgment of my learned brother that I too allow the appeal. The judgment of the lower Court is hereby set aside. The Appellant is hereby discharged.
Appearances:
O. I. ORAKWE For Appellant(s)
No Counsel For Respondent(s)
