MADUAGWU v. FRN
(2020)LCN/14265(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, June 22, 2020
CA/LAG/CR/1290/2019
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
LAWRENCE MADUAGWU APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
DEFINITION OF “FALSE PRETENCE”
“False pretence” is defined in Section 20 of the AFF Act to mean — “A representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” Halsbury’s Laws of England (Fourth Edition) pages 430 — 432 paragraph 567 states aptly that – ” ‘deception’ means any deception, whether deliberate or reckless, by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.
The deception must be the effective cause of obtaining the property or a pecuniary advantage and must operate on the mind of the person to whom it is directed.
The deception must precede obtaining the property but the inducement need not be proved by direct evidence if the facts are such that the alleged deception would have been the only reason why the accused obtained property belonging to another
For these purposes, a person is to be treated as obtaining property if he obtains ownership, possession or control of it. The deception must be the effective cause of the obtaining and must operate on the mind of the person to whom it is directed.” PER IKYEGH, J.C.A.
JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment): The appeal is from a decision of the High Court of Justice, Lagos State, (the Court below) by which it convicted and sentenced the appellant to concurrent terms of 7 and 3 years in prison, respectively, for the offences of false pretence and stealing contrary to Sections 1 (2) and (3) of the Advance Fee Fraud and Other Related Offences Act (AFF) No. 14 of 2006 and stealing contrary to Section 285(1) of the Criminal Law of Lagos State, 2011, (Criminal Law) respectively.
The gist of the respondent’s case was that the appellant, the alter ego of Midas Laboratories Ltd. (Midas), was at all material times an importer of chemical products from the Peoples Republic of China through PMC Industries Ltd (“PMC”) and Tombo Industries, a subsidiary of PMC (“Tombo”). PMC, Highest Chemical Limited (“Highest”) and Tombo were at all material times suppliers of the said chemical products. The appellant representing Midas received three consignments of chemical products from PMC. Highest supplied one consignment which was paid by Midas. Two out of the three consignments received from PMC were paid by Midas.
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The remaining consignment was not paid as and when due. Payment was not forth-coming.
Upon failure of Midas to pay for the goods shipped by PMC under the third consignment on the due date, PMC caused a petition to be written against the appellant, in his personal capacity, to the Economic and Financial Crimes Commission (EFCC). Acting on the petition, the EFCC arrested the appellant and froze his bank accounts. The EFCC eventually arraigned the appellant at the Court below where he was tried, convicted and sentenced as charged.
The appellant’s case agreed with the respondent on the shipment and receipt by Midas of the consignments of chemical products. The appellant’s divergence were that the third consignment not paid for was substandard in that it dripped liquid. Hence it could not be marketed in due time and had to be eventually sold at knock-down price at a time the foreign exchange rate had soared from N 155 per United States Dollars (USD) to N460 per USD, which had accounted for non payment of the consignment. The appellant then hinged his defence on breach of contract occasioned by the appellant’s alleged indebtedness arising from the
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business relationship Midas had with PMC.
The Court below believed and accepted the version of the respondent and reject the appellant’s defence to convict him as charged. The appellant was dissatisfied with the decision of the Court below. He challenged it in a notice of appeal with eight (8) grounds of appeal filed on 23.10.19 vide pages 259 — 266 of the record of appeal (the record).
The appellant filed a brief of argument on 14.11.19. The appellant noted in the brief that there were four transactions involving Midas and Highest and PMC out of which the appellant had paid for the first three transactions leaving unpaid the third transaction with PMC; that the appellant had maintained in his defence in page 159 of the record that the goods supplied under the third transaction with PMC were defective; and that the evidence was corroborated by the testimony of DW3 contained in page 179 of the record.
The appellant continued that had the Court below considered the said defence, it would have come to the conclusion that the relationship between the parties was essentially contractual in nature; and that the remedy available to PMC was an
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action to recover the money owed under the contract and damages for breach of the commercial transaction, not the criminal charge of obtaining by false pretence or stealing upon which the appellant was tried, convicted and sentenced to various terms of imprisonment.
Proceeding from the above submission the appellant advocated that had the Court below carried out its primary duty of dispassionate assessment of the evidence, it would not have made erroneous findings to the effect that the appellant admitted that Midas did not carry out laboratory test on the disputed goods contrary to the evidence of the appellant, as the DW1, that he carried out laboratory test on the goods vide page 174 lines 10-11 of the record.
It was further argued that, in any event, it was not the business of the Court below exercising criminal jurisdiction to dwell on rejection of goods as well as proof of defective goods which may ground civil liability; consequently, the appellant argued that the Court below was wrong to have convicted the appellant because he could not prove that a quarter of the goods were bad when the burden of proof should have been on the respondent to
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establish the guilt of the appellant beyond reasonable doubt under Sections 135 — 140 of the Evidence Act, 2011 (Evidence Act) read with the cases of Ibeziako v. C.O.P. (1963) 1 ALL N.L.R. 61, Suberu v. State (2010) 8 NWLR (pt. 1197) 586.
The appellant referred to the evidence of PW1 contained in page 88 of the record as well as the evidence of PW2 contained in page 91 thereof coupled with the evidence of PW3 contained in page 96 of the record as well as the evidence of PW4 contained in page 97 thereof and the evidence of PW5 contained in page 105 of the record to contend that the said pieces of evidence confirmed that the case against the appellant was rooted in voluntary business transaction or indebtedness; and that the appellant did not deny the indebtedness.
The appellant further contended that the remedy open to the PW2 and PW5 was civil action, not criminal action, upon which the appellant concluded on the issue by urging that since the Court below was not dispassionate in the evaluation of the evidence and thus arrived at erroneous decision that the appellant was criminally liable on the aforestated facts, the Court should evaluate
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the evidence and arrive at the right decision that the case was civil in nature and allow the appeal on this issue and set aside the conviction and sentence of the appellant citing in support the cases of Al-Mustapha v. State (2013) LPELR — 20995 (CA), Onisaodu v. Elewuju (2006) LPELR – 2687 (SC), Nwodo v. C.O.P. (1972) 1 NMLR 205, Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 97, Anubalu v. State (2019) LPELR – 48088, Diamond Bank v. Opara (2018) LPELR – 43907 (SC), Anogwie v. Odom (2016) LPELR – 40214 (CA).
The appellant contended that having regard to the evidence in the record that the demand for the unpaid had their origin in a series of events/transactions in which the appellant also requested and had goods supplied to him under the first and second transactions voluntarily entered into by the parties vide page 96 of the record and confirmed by the PW1 in page 87 of the record as well as the evidence of PW4 in page 97 of the record plus Exhibit 1A — C attached to the petition to the EFCC and another document evidencing that it was a business transaction, the vital element of “false pretence”, was lacking in the evidence against the
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appellant.
It was further contended by the appellant that the transaction was made in the ordinary course of business vide Section 167 of the Evidence Act without the appellant having foreknowledge that events would turn out unfavourably to render it unable for Midas to pay for the goods.
Consequently, the appellant argued that the Court below speculated and came to a perverse decision that if not for the personal effort or pressure by the PW1, the appellant would not have even paid for the third consignment when the PW1 had testified in page 87 of the record that upon confronting the appellant in his office the latter told him that he was believing in God to pay the money, therefore the perverse findings upon which the Court below concluded that the offence of obtaining by false pretence was established against the appellant should be set aside vide the cases of Enukora v. FRN (2018) LPELR – 43822 (SC), Ikpa v. state (2017) LPELR – 42590 (SC), Darlinton v. FRN (2018) LPELR – 43850 (CA), Onwudiwe v. FRN (2006) 10 NWLR (pt. 988) 382 at 431 – 432, Alake v. State (1991) 7 NWLR (pt. 205) 567, Odiawa v. FRN (2008) ALL FWLR (pt. 439) 436, Ojukwu v. FRN
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(2019) LPELR – 4694, Apugo v. FRN (2017) 8 NWLR (pt. 1568) 416, Oshun v. DPP (1965) NMLR (Vol. 1) 357 at 358, Aguba v. FRN (2014) LPELR – 23211 (CA), Ede v. FRN (2001) 1 NWLR (pt. 695) 802, Ijuoka v. COP (1976) NSCC (Vol. 10) 285 at 289, FRN v. Ojo (2018) I-PELR – 45541 (CA), Ahmed v. The State (1999) 7 NWLR (pt. 612) 641 at 672, Enugu State Civil Service Commission v. Geofrey (2006) LPELR – 7638 (CA), Irolo v. Uka (2002) LPELR – 3335 (SC), Siesmograph Ltd. v. Ogbeni (1976) 4 SC 85, Akpabio v. State (1994) 7 NWLR (pt. 359) 635 at 669 – 670, Arije v. FRN (2013) LPELR – 22125 (CA), George v. FRN (2013) LPELR – 21895.
The appellant also contended that the totality of the evidence adduced, particularly the evidence of PW1 and PW5, did not disclose that the appellant made a mis-statement as to an existing fact that was false and false to his knowledge to constitute intent to defraud as one of the important ingredients of the offence of obtaining by false pretence to warrant the “perverse” finding of intent to defraud made by the Court below which should be set aside vide Gayus v. FRN (2017) LPELR – 43023 (CA), Ijuako v. COP (supra) at 289, George v. FRN
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(supra), Nwosu v. State (1986) 4 NWLR (pt. 36) 348 at 359, Ibeziako v. COP (supra), Suberu v. State (supra), Onwudiwe v. FRN (supra) at 431 F, Abiodun v. FRN (2009) 7 NWLR (pt. 1141) 489 at 509.
The appellant contended that since there was no evidence controverting that some of the goods were physically lying unsold at the appellant’s warehouse in Port-Harcourt vide the evidence of PW1 in page 87 of the record, as well as the evidence of PW2 in page 89 and the evidence of PW3 in page 95 of the record the Court below should not have ordered the appellant to make full restitution of the sum of $179,000 as there was also nothing in the record to show that it was impossible and impracticable to make full restitution of the 500 bags of calcium chloride to PMC vide the cases of Ibe v. lbhaze (2016) LPELR — 41556 (CA), Isah v. The State (2017) LPELR – 43472 (SC), Ola v. State (2018) LPELR – 44983 (SC) and Section 11 of the Advanced Fee Fraud (AFF) Act.
The appellant contended that Section 285(1) of the Criminal Law of Lagos State 2011 (Criminal Law) does not create the offence of stealing or any other offence, therefore the Court below was
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wrong to convict the appellant of a non-existing offence under the said section of the Criminal Law vide Section 36 (12) of the 1999 Constitution and the cases of Asake v. Nigerian Army Council (2007) 1 NWLR (pt. 1015) 408 at 424 — 425, Ifegwu v. FRN (2001) 13 NWLR 103 at 131, Aoko v. Fagbemi (1961) 2 ALL N.L.R. 400, Udokuy v. Onugha (1963) 2 ALL N.L.R. 107, Paulson v. The State (2011) LPELR – 4875 (CA), Hembe v. FRN (2014) LPELR – 22705 (CA), Nwosu v. State (supra).
The appellant argued, in the alternative, that since title in the goods under the transaction that brought about the criminal prosecution had passed to Midas, the Court below could not have convicted the appellant of stealing what was in his possession.
It was further argued that with the evidence that the appellant was indebted to PMC over a commercial transaction upon which PMC sent commercial invoice to the appellant for the payment of the goods coupled with Exhibits 1A — C, the LPO, there could have been no fraudulent conversion to ground the offence of stealing vide Sections 16 and 17 of the Sale of Goods Law Cap. 51, Laws of Lagos State, 2015,
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Halsbury’s Laws of England, Fourth Edition, vol. Il paragraph 1261, Adejobi v. State (2011) 12 NWLR (pt. 1261) 347 at 377, Chianugo v. State (2002) 2 NWLR (pt. 750) 225 at 235 — 236, Onagoruwa v. State (supra), Udoh v. State (2017) LPELR – 40254 (CA), Victor v. The State (2009) LPELR – 8151 (CA), Yongo v. COP (1990) 5 NWLR (pt. 148) 103, Clerk v. The State (1989) 4 NWLR (pt. 115) 264, COP v. Ude (2010) LPELR – 8599 (CA), Onagoruwa v. State (supra) at 97; upon which the appellant concluded by urging that the appeal should be allowed and the decision of the Court below set aside and an order of discharge and acquittal be entered for the appellant.
The respondent filed its own brief of argument on 31.01.20, but it was deemed as properly filed on 27.05.20. The respondent argued in the brief that sufficiency of evidence and its proper evaluation by the Court below to the effect that the appellant who claimed to have customers who were willing to buy the 500 metric tons of calcium chloride worth $179,000 turned out to have no customers evidenced that the appellant had deceived PW1 to part with the goods; it was further argued that though the appellant claimed the goods
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were bad, he admitted he never carried out any laboratory test himself, nor did the appellant provide any evidence to support the assertion; therefore, the respondent submitted that the Court below was right to hold that the case was proved beyond reasonable doubt and that the said findings which have not be shown to be perverse should not be disturbed vide Nsofor v. State (2004) 18 NWLR (pt. 905) 292, Akinlolu v. State (2015) LPELR – 25986 (SC), Sabi v. State (2011) 14 NWLR (pt. 1268) 421, lwunze v. FRN (2013) 1 NWLR (pt. 1324) 119, Njoku v. State (2013) 2 NWLR (pt. 1339) 548, Osuagwu v. State (2013) 5 NWLR (pt. 347) 360, Ajayi v. State (2013) 9 NWLR (pt. 1360) 589, Amuneke v. State (1992) NWLR (pt. 217) 347, Nkebisi v. State (2010) 5 NWLR (pt. 1188) 471, Amala v. State (2004) 12 NWLR (pt. 888) 520, Mufutau Bakare v. The State (1987) 1 SC 1 at 32, Okere v. The State (2001) 2 NWLR (pt. 697) 397 at 415 – 416, Nwaturuocha v. The State (2011) LPELR – 8119 (SC), Yongo v. COP (1992) 8 NWLR (pt. 257) 36, Reg. v. Aspinall (1) 2 QBD 48.
The respondent also argued that the element of the offence of obtaining goods by false pretence were established by the
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evidence of PW1 and PW5 in pages 86 — 87 of the record read together with Exhibits 2, 3; 4 and 5 to the effect that PMC was in fact misled by the false representation made by the appellant that he had more customers who were willing to buy the calcium chloride worth $179,000 when in fact he had not paid for the second shipment; and that upon the appellant’s request that he should be allowed to use the money he was supposed to deposit to clear the goods in question which upon selling he would use the proceeds thereof to pay for all the goods induced PMC to act on the representation to part with the goods without the appellant fulfilling his promise.
The respondent further argued that the appellant converted the proceeds of sale of the goods in issue to his personal use and had admitted under cross-examination that he received the goods from PMC and had not returned or paid for the goods he claimed were bad without providing evidence of laboratory result of the test laboratory he claimed was carried out on the goods and the pictures of the damaged goods, or evidence of the mail he claimed he had sent to PMC, that the goods were bad.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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Consequently, it was contended by the respondent that the appellant had the intention of obtaining the goods from PMC by false pretence right from when he made the representation to PMC to the knowledge of the appellant that the representation was false thus the appellant intended to defraud PMC thereby; therefore, the respondent argued that the Court below was right to convict the appellant on the count of obtaining the goods by false pretence.
The respondent argued that the elements of the offence of stealing under Section 383 of the Criminal Code Law of Lagos State 2003 (Criminal Law) read with the cases of Oshinye v. COP (1960) 5 SC 105, Chianugo v. State (2002) 2 NWLR (pt. 750) 325, Adejobi and Anor. v The state (2011) LPELR- 97 (SC) to the effect that the 500 metric tons of calcium chloride worth $179,000, property of PMC, was capable of being stolen as its ownership and dishonest or fraudulent taking or conversion of it by the appellant were established by the evidence adduced at the Court below particularly the evidence of PW1 that when he visited the appellant’s warehouse he discovered that 95% of the goods had been sold without the appellant
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paying for them vide page 7 of the record and the evidence in pages 174 — 175 thereof to the effect that the goods belonged to PMC represented by PW1 and PW5 who demanded for the proceeds of the sale on several occasions but the appellant refused to pay which proved ownership of the goods by PMC and that the property which was movable was capable of being stolen.
The respondent referred to Section 278 (2) of the Criminal Law and the cases of Onwudiwe v. FRN (2006) 4 SC (pt. 11) 70, Oyebanji v. State (2015) ALL FWLR (pt. 800) 1182, Ajiboye v. State (1994) 8 NWLR (pt. 364) 587 at 602, State v. Taiwo (1982) 1 N.C.R. 312 at 319, Nwankwo v. FRN (no year supplied) 4 NWLR (pt. 2003) 1 at 35 following Alake v. FRN (supra) to contend that contrary to the appellant’s contention that it was a business transaction, the evidence of PW 1, PW5 and the Exhibits in the case as well as the admission of the appellant proved that though the transaction started as a contract, the fraudulent conduct of the appellant turned it into a crime as it often happens in most economic and financial crimes arising from transactions that had the semblance of contractual
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relationship, therefore the conviction of the appellant for stealing should not be disturbed.
The respondent argued with respect to the order of restitution made by the Court below in its judgment contained in page 258 of the record to the effect that the appellant should make full restitution of the sum of $179,000 to PMC that the said order of restitution was appropriate having regard to Section 297(1) of the Administration of Criminal Justice Act (ACJL) 2011 which is not a punishment but a consequential order provision vide Ebuka v. The State (2014) LPELR – 23491 (CA), Nwude v. FRN (2016) 5 NWLR (pt. 1506) 471.
The respondent relied on the case of Olatunbosun v. State (2013) LPELR 20939 (SC) to contend that even if the Court below applied Section 285 of the Criminal Law 2011, both Sections 278 and 285 under which the appellant was charged as the offence of stealing charged is known to law and that based on these submissions, the appeal should be dismissed and the conviction of the appellant as well as the consequential order of restitution be upheld.
The appellant filed a reply brief on 28.02.20, which was deemed as properly filed on
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27.05.20, it was pointed out in the reply brief that there was evidence that the appellant had customers who had bought the goods on three previous occasions and that the PW 1, PW2, PW3 and PW5 had confirmed that the case against the appellant was that which ought to be voluntary business transaction or indebtedness which the appellant did not deny and that the PW1 and PW5 never testified that they were misled, therefore the appellant urged that by shutting its eyes to these pieces of evidence the decision of the Court below was perverse vide Irolo v. Uka (2002) LPELR – 335 (SC).
The reply brief relied on Sections 16 and 17 of the Sale of Goods Law to contend that title to, property in, and ownership of goods in an unconditional contract for sale of goods passed to the buyer when the contract was made, irrespective of the time of payment, therefore since title in the goods in question transaction had passed to the appellant, the Court below was wrong to convict the appellant of stealing the goods that lawfully belonged to the appellant.
The reply brief invited the Court to take judicial notice of the Criminal Law of Lagos State as revised in 2015
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as valid wherein Section 285 thereof did not create any offence vide Section 122 (1), (2) (a) of the Evidence Act and the cases of Military Governor of Oyo State v. Adekunle (2005) 3 NWLR (pt. 912) 294, Mobil Producing Nig. United and Anor. v. Udo (2008) LPELR – 8440, APC v. INEC (2014) LPELR – 24036 (SC); upon which the appellant concluded that the appeal should be allowed and the decision of the Court below be set aside and the appellant be discharged and acquitted.
The plea of the appellant was taken on 28.02.18 vide pages 66 — 67 of the record. Objection to the charge was not taken immediately after charge was read to the appellant. Nor did the appellant raise it in the final addresses at the Court below. The objection was raised for the first time on appeal. Objection to a charge should be taken after the charge is read and before plea is taken. The objection was therefore belatedly raised vide Section 167 of the Criminal Procedure Act stipulating that the objection, if any, to the charge or any formal defect in the charge should be taken immediately after the charge is read to the defendant vide the case of Ankpegher v. State (2018) 11 NWLR (pt. 1630) 249 at 262
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to the effect that such objection be so raised as provided by Section 167 of the Criminal Procedure Act.
The final written address of the appellant which is contained in pages 183 — 215 of the record did not challenge the charge in any manner whatsoever. Nor did the further address in reply to the respondent’s written address contained in pages 236 — 239 of the record canvass anything on the defect or invalidity of the charge for allegedly using a wrong section (definition section) of the law on the count of stealing. Oral adoption of the written address contained in page 240 of the record did not ventilate the issue of defect in the charge relating to the count of stealing.
Once the defendant failed to take the objection to the charge immediately after the charge is read to him, the only opportunity left for the defendant was to raise the objection to the charge before judgment in the case was delivered by the Court below maintain Section 396 (2) of the Administration of Criminal Justice Act (ACJA) 2015 or its counterpart in Section 396(2) of the Administration of Criminal Justice Law (ACJL) 2015 of Lagos State
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read with the case of Destra Investments Ltd. v. F.R.N. (2018) 8 NWLR (pt. 1621) 335 at 342 – 343 and 345 to the effect that the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.
Section 396(2) of the ACJA or ACJL liberally extended the latitude for the defendant to raise such objection at any time after plea is taken up to the time before judgment is delivered in the case by the trial Court was not utilised by the appellant at the Court below.
It can be seen (supra) that the defendant did not utilise any of the opportunities (supra) to raise the objection to the validity of the charge or information. The objection to the validity of the charge containing the count of stealing which was raised at the appellate stage of the proceedings is therefore belated and should meet its grief on that score.
Further, page 65 of the record indicated that the appellant was charged in the 2nd count for the offence of stealing contrary to
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Section 285(1) of the Criminal Law of Lagos State 2011, the punishment section thereof, and was convicted under the same 285 of the said Criminal Law of Lagos State vide page 258 of the record containing the tail-piece of the judgment of the Court below; consequently, the contention of the appellant that the count of stealing upon which he was convicted was laid under the definition section of the said Law is untenable.
In any event, the appellant by fully defending the charge at the Court below was not shown to have been misled or suffered any miscarriage of justice even if the count of stealing was placed under the definition section of the law and/or the wrong section of the law, as the offence of stealing contained in count 2 of the charge sheet is known to law vide Section 278 of the Criminal Law which defines the offence of stealing and Section 285 thereof which prescribes the punishment for the offence of stealing. Support for the above can be found in the Supreme Court cases of Egunjobi v. F.R.N. (2013) 3 NWLR (pt. 1342) 534 at 579 and Oyen v. F.R.N. (2019) 11 NWLR (pt. 1683) 333 at 354 – 355, relying on the cases of Adenike v. State (2015) 7 NWLR (pt.
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1458) 237, Olatunbosun v. State (2013) 17 NWLR (pt. 1382) 167 and Falobi v. Falobi (1976) LPELR – 1236 (SC) to the effect that once the facts upon which the defendant was convicted are known to law, the fact that the defendant was charged and convicted under a wrong law or wrong section of the law, will not lead to his acquittal.
PW1 stated that the goods were supplied and delivered in December, 2013. The contract stipulated per the bill of lading that payment of $179,000 was to be made by the appellant within 90 days of receipt of the goods. Appellant assured PMC that he would pay as soon as the goods were cleared.
The PW5 testified in part of his examination-in-chief in pages 103 — 104 of the record (unedited) on the issue that — “After the first shipment of 500 metric tons arrayed in Port-Harcourt, he called me after it that there were so many customers interested in our goods and so many customers interested in our goods and told me to ship another 500 metric tonnes costing $179,000 to him.
At this time, I did not know he was deceiving me. After making sales, he refused to pay me for the 1st and 2nd Shipments. I called him
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several times pleading for payment. I decided to go to his office and after much plea he paid for the 1st shipment promising to pay for the 2nd shipment. He has since 2013 been giving me series of excuses for failing to pay till today.
Due to his deceit, my Chinese Company has been in a mess. I have lost my job and my family has abandoned the thinking I am liar and fraudster, my bank account has been frozen all because of the fraud of the Defendant. My health too has been adversely affected. I pled for justice (weeping)
LPO was handled by my business partner Mr. Ohio with the commercial invoice sent from China to Nigeria. These are Exhibit 1b and 1c, The Defendant has not returned the goods and has not paid for the goods.”
The PW5 answered under cross-examination that all he knew was that the appellant cheated PMC and defrauded it of the 500 metric tons of calcium chloride. The PW5 concluded under cross-examination in page 105 of the record that the appellant had given different reasons why he had not paid PMC the $179,000.
The appellant admitted under cross-examination that – “When we sold the goods that brought me to Court, we have
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not remitted the money to the supplier………………
All the goods have been disposed off.” (My emphasis)
The DW3, who is the appellant’s biological son and auxiliary staff of Midas at the Port-Harcourt office, answered under cross-examination in page 181 of the record that — “Yes, all the goods have been sold.
Yes, I confirm that the 50 metric tons have not been paid for by Midas to PMC”
The DW3 answered under cross-examination that all the goods were sold. Even the goods sold were not accounted for when time was of the essence of the contract which was to be done within 90 days upon receipt of the goods in Dec. 2013 but was never done as the payment for the goods or part thereof was over-due for over one year before the case went to Court.
The goods were received by the appellant in December, 2013. It was on the representation the appellant made to PMC that he had customers who would buy the goods and pay the $179,000 to PMC within 90 days that induced PMC to supply the goods to the appellant. There is evidence on both sides of the divide that the appellant sold the goods or most of the goods.
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There is consensus evidence that it was for the consignment in dispute that the appellant defaulted in paying.
Whether the appellant had sold the goods at a give-away price or at a loss as maintained by the appellant; or the appellant had sold the goods at fair price as thought by the respondent, the bottom-line is that the appellant did not make any payment to PMC. The appellant lamely or blandly stated that God will provide the money for him to pay PMC for the goods. There was no indication at all from the appellant when and how he was to pay for the goods. Not even the proceeds from the alleged give-away sale was paid to PMC.
Obtaining property by false pretence through the medium of a contract could be a criminal offence vide Section 1(1) (c) of the AFF Act which provides in that wise thus —
“1(1) (b) Notwithstanding anything contained in any other enactment or law, any person who by false pretence, and with intent to defraud — obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act;”
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Section 1(1) (c) of AFF Act therefore criminalises contracts if induced by false pretence with intent to defraud. See also the decision of the Court (Owoade, Uwa and Barka J.J.C.A.) in the case of Rowaye v. F.R.N. (2018) 18 NWLR (pt. 1650) 21 at 79 where it was held inter alia that — “The law is that Advance Fee Fraud can be rooted or achieved through a contract. Section 1(1) (c) of the Advanced Fee Fraud and Other Fraud Related Offence Act, 2006, made it a criminal offence to obtain by false pretences through a contract or some other numerous ways.”
The Court is enjoined by the doctrine of precedent or stare-decisis to be bound by its own decision(s) unless distinguishable on the facts by the Court or shown to have been made per-incuriam vide Honeywell Flour Mills Plc v. Ecobank (Nig.) Ltd. (2019) 2 NWLR (pt. 1655) 35 at 51 relying on the case of Usman v. Umaru (1992) 7 NWLR (pt. 254) 377.
The purpose of Section 1 (1)(b) of the AFF Act is therefore to penalise those who hide behind the smokescreen of business transactions to perpetrate fraud by deception.
“False pretence” is defined in Section 20 of the AFF Act to mean — “A
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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.” Halsbury’s Laws of England (Fourth Edition) pages 430 — 432 paragraph 567 states aptly that – ” ‘deception’ means any deception, whether deliberate or reckless, by words or conduct as to fact or as to law, including a deception as to the present intentions of the person using the deception or any other person.
The deception must be the effective cause of obtaining the property or a pecuniary advantage and must operate on the mind of the person to whom it is directed.
The deception must precede obtaining the property but the inducement need not be proved by direct evidence if the facts are such that the alleged deception would have been the only reason why the accused obtained property belonging to another
For these purposes, a person is to be treated as obtaining property if he obtains ownership, possession or control of it. The deception must be the effective
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cause of the obtaining and must operate on the mind of the person to whom it is directed.”
The essential elements of the offence of obtaining property by false pretence are thus the false pretence, the obtaining of the property thereby and the intent to defraud.
Granted the goods were substandard and unfavourable market forces caused by inflationary trend made the appellant to sell the goods at a ‘give- away’ price, the appellant should have none-the-less paid to PMC whatever proceeds he had realised from the ‘give-away’ price he had sold the goods with explanation for the shortfall to eliminate the belief or inclination that the appellant intended to defraud PMC by deception. The appellant never did so.
Whether the goods had defects or were substandard had nothing to do with excuse from criminal liability as the delivery or supply of the goods was unconditional and the appellant had no option to return the goods to PMC but to take them as they were and sue for civil remedy for any defect in the good, if so advised, vide Imana v. Robinson (1979) 3 — 4 S.C. 1 at 20.
Circumstantial evidence or circumstances from which to gauge
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the state of mind of the defendant at the time the transaction was done as shown by chain of events and facts leading to the commission of the offence can provide a clue to the intent to defraud by the defendant at the time of the transaction vide Aweto v. F.R.N. (2018) 8 NWLR (pt. 1622) 527 at 541 – 542.
The conduct of the appellant from hindsight or in retrospect accordingly supplied the inference that he had pre-meditated not to pay for the goods at the time he induced PMC to supply or deliver the goods to Midas and had only used the medium of contract to mask his deception of PMC to part with the said goods. Going by the case of Alli v. Police 20 NLR 107 the contract by bank transaction made the PMC, the other side, to believe at the material time that it was a genuine transaction which turned out to be nothing but a trap intended to defraud PMC, the Chinese exporter.
The intent to defraud in this case thus manifested from the intransigence/tenacity with which the appellant clung to his premeditated frame of mind not to pay for the goods, lamely or blandly stating that ‘the lord shall provide’, without any indication when and how he would pay
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for the goods. It would have been otherwise had the appellant by words or conduct shown the willingness or intention to pay for the goods with whatever amount the proceeds of sale thereof had yielded.
A panoramic view of these pieces of evidence disclosed that the appellant had conceived the intention not to pay for the goods at the time he induced PMC to supply or deliver the said goods to Midas represented by the appellant which made PMC part with the goods. The obtaining or delivery of the goods through the medium of a contract induced by the false pretence made at the material time by the appellant made the representation false with intent to defraud and thus constituted the offence of obtaining the property by false pretence through the medium of a contract.
In other words, the appellant obtained the goods on a representation to PMC as to the present fact that he would pay for the goods within 90 days per the bill of lading which was an existing fact which induced PMC to part with the goods and the representation turned out to be deception with intent to defraud PMC of $179,000 vide Rex v. Odio (1942 8 W.A.C.A. 156 at 159 following the English
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case of R.V. Alexandra 26 Cr. App: Rep. 116.
Midas is an artificial body. The appellant was at all material times its directing mind. Behind the veil of incorporation of Midas is the appellant, its alter ego. The appellant as the human agency behind Midas was therefore responsible for the consequences of obtaining the goods by false pretence vide Oyebanji v. State (2015) 14 NWLR (pt. 1479) 270, Rowaye v. F.R.N. (supra).
The events that played out (supra) and/or unfolded/unraveled themselves on the state of the evidence (supra), make it hard to fault the conviction and sentence of the appellant for the offence of obtaining the goods in question by false pretence. The appeal on the conviction and sentence of the appellant for the offence of obtaining goods by false pretence, accordingly, lacks merit.
The property in the goods passed to the appellant by the contract and his taking delivery of the goods which were indeed indisputably delivered to the appellant vide Brawal Shipping (Nigeria) Ltd. v. Metropolitan General Ins. Co. Ltd. (2000) 6 S.C.N.J. 508 at 531. It appears there was no express or implied term in the contract for the appellant
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upon receipt of the goods to reject them on ground of defect in the goods. The appellant was, therefore, not entitled by the terms of the contract to return the goods for any defect in them. It was an unconditional sale. PMC had no lien on the goods as the contract did not indicate that it was a conditional sale.
The appellant could only sue for damages for the defect. That was the remedy open to the appellant. The appellant therefore could not have stolen what he was not expected to return in specie to PMC. The appellant should not have been convicted of stealing the goods in the circumstances.
Thus, in the case of Akosa v. C.O.P. (1950) 13 WACA 43 at 44 the Court held that – “The appellant, as I have already said, was charged and convicted of stealing, but in the opinion of this Court the charge should have been one of obtaining by false pretences. “If”, said Parke. B, “a person through the fraudulent representations of another delivers to him a chattel, intending to pass the property in it, the latter cannot be indicted for larceny but only for obtaining the chattel under false pretences” (Powell v. Hoyland 6 Ex. 67 at
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70………………. This being so, this Court substitutes for the verdict “guilty of stealing” of the Court below, a verdict of guilty of obtaining money by false pretences”.
Accordingly, the conviction and sentence of the appellant on the count of stealing when he was also convicted on the count of obtaining the same property by false pretence is suspect and fatal and should not have been made by the Court below.
There is evidence (supra) that the goods were disposed of by the appellant, so it was impracticable and/or impossible to order for their forfeiture or return to PMC in specie. The order made by the Court below for forfeiture of the $179,000 was, accordingly, the appropriate order to make in the circumstances. There is therefore no substance in the argument on the order of forfeiture. I endorse the said order of forfeiture accordingly.
In the result, the appeal succeeds in part. I would allow it on the count of stealing and hereby quash the conviction and sentence of 3 years imprisonment imposed by the Court below on the appellant on the count of stealing. However, the appeal on the count of obtaining
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property by false pretence fails and is hereby dismissed and the conviction and sentence of the appellant for the offence of obtaining goods by false pretence is, accordingly, affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I am in entire agreement with, and do not desire to add to, the reasons and conclusions expressed by my learned brother, JOSEPH SHAGBAOR IKYEGH, J.C.A., in the leading judgment just delivered. For those same reasons I concur in holding that the appeal succeeds in part. I join in allowing the appeal in part on the same terms as set out in the leading judgment.
EBIOWEI TOBI, J.C.A.: I have been afforded the privilege of reading in draft the leading judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, J.C.A. and I agree with his reasoning and the conclusion reached in this appeal. On my part, I only wish to say one or two things with respect to what false pretence obtains. In the Supreme Court’s case of Onwudiwe vs. FRN (2016) LPELR-2715 (SC), the offence of obtaining by false pretence was held to mean: “I move to the offence of false pretences. It means knowingly obtaining another person’s property by means of a
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misrepresentation of fact with intent to defraud. See Bryan A. Gamer, A Dictionary of Modem Legal Usage, Second Edition; page 348. Section 419 of the Criminal Code provides for the offence of obtaining by false pretences. The Section provides in part: “Any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any Other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years.”
Also, this Court in Anubalu vs. State (2019) LPELR-48088 (CA) held pretence to be ” … a reckless or deliberate representation by word or conduct which the person knows to be false or does not believe to be true.”. As stated by my learned brother, the Appellant from the outset has premeditated in his mind not to pay for the goods when he made the representation to PMC that he should supply a second batch of the 500 metric tons of calcium chloride amounting to $79,000 as there were so many customers who were interested in goods. It was on this representation that PMC acted on that induced it to part with
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its goods. The premeditated plan of the Appellant to induce PMC to part with its goods came to the fore when even after the Appellant has sold the goods, he refused to remit the monies due to PMC but rather held on to it despite several demand.
Taking the side of my learned brother, I do not agree with the Appellant’s argument that the transaction that occurred between himself and PMC is purely civil as obtaining property by false pretence through the medium of a contract could be a criminal offence.
In view of the foregoing and in the light of the fuller reasons contained in the leading judgment of my learned brother, JOSEPH SHAGBAOR IKYEGH, J.C.A., I, too, find that this appeal succeeds in part, with respect to the count of stealing and fails with respect to the count of obtaining property by false pretence.
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Appearances:
Mr. F. Onuobia with him, Mr. L. Ijaodola For Appellant(s)
Mr. A.B.C. Ozioko with him, Mr. S.O. Daji For Respondent(s)