MUNIR v. FRN (2020)

MUNIR v. FRN

(2020)LCN/13981(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/87/2009

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Obande Festus Ogbuinya Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

OGUNDIMU MUNIR APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE CRIMINAL OFFENCE OF FORGERY

In ACB PLC v NDOMA –EGBA (2000) LPELR – 9139 (CA), the Court held;
“Forgery is a criminal offence. The onus is on the party who alleged to establish the forgery and this he must do beyond reasonable doubt. Where a party denies making a document which he is alleged to have executed or signed or thumb-printed, such denial is tantamount to saying that the document is a forgery or a fake. In such a situation, the burden of proof of the forgery rests on the party who alleges since forgery is a crime, the onus of proof on him who alleges is proof beyond reasonable doubt; Ikoku v. Oli (1962) 1 SCNLR 307; Adelaja v. Alade (1999) 6 NWLR (Pt.608) 544 at 557 to 558.”
per EDOZIE, J.S.C (P. 10, PARAS. A – C). PER OBASEKI – ADEJUMO, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

In my view, the prosecution had successfully established beyond reasonable doubt that he procured or forged receipts, remembering that beyond reasonable doubt is not beyond any shadow of doubt.
In SEGUN v STATE (2015) LPELR – 45647 (CA), this Court held on the Standard of proof in criminal cases; whether proof beyond reasonable doubt means proof beyond all shadow of doubt thus;
“It is correct to state that the commission of a crime by a person must be proved beyond reasonable doubt. Section 138(1) of the Evidence Act.

However, it is also the law that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. See Francis Odili v. The State (1977) 4 SC 1 @ 9; Alonge v. Police (1959) 4 FSC 203. “The question is whether the prosecution proved at the trial, the commission of crime for which the Respondents were charged, beyond reasonable doubt. Section 138(1) of the Evidence Act LFN Cap 14 2004, stipulates: “138(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.” The standard of proof of commission of crime in civil cases is the same as in criminal trial. The proof must be beyond reasonable doubt. See Famuroti v. Agbeke (1991) 5 NWLR (Pt. 189) pg. 1 @ 13. Lord Denning J (as he then was) in the case of Miller v. Minister of Pensions (1947) 2 ALL ER 372 stated: “It need not reach Certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt.” In the Nigerian case of Bakare v. State (1987) 1 NWLR (Pt. 52) 597; Oputa, JSC, explained the requirement of proof beyond reasonable doubt thus: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in the adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities, but it does admit high degree of cogency, consistency with an equal high degree of probability.”
per DONGBAN – MENSEM, J.C.A (PP. 20 – 21, PARAS B-F). PER OBASEKI – ADEJUMO, J.C.A.

WHETHER OR NOT SENTIMENTS HAS A PLACE IN LAW

Sentiments has no place in law jurisprudence, My learned brother OGAKWU, JCA in the case of POATSON GRAPHIC ARTS TRADE LTD & ANOR v NDIC (2017) LPELR – 42567 (CA) on “Whether sympathy and sentiments have a role in the administration of justice’’ held thus;
“The justice administered in a Court is not abstract justice conceived by the judex. It is justice according to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations: KALU vs. FRN (2016) LPELR (40108) 1 (SC) and HUEBANER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC). PER OBASEKI – ADEJUMO, J.C.A.

DEFINITION OF FRAUD

In OJUKWU v FRN (2019) LPELR – 46494 (CA) this Court held thus;
“Section 1(1) of the Advance Fee Fraud Act, 2006 provides as follows: 1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud a. Obtains from any other person, in Nigeria or any other country for himself or any other person; b. Induces any other person in Nigeria or in any other country, to deliver to any person; or c. Obtains any property; whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under the Act. 2. A person who by false pretence and with intent to defraud, induces any other person in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act. 3. A person who commits an offence under Sub Section (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine. By Sub Sections (1) and (2) of Section 1 above the prosecution to succeed in the charge must prove and establish the two basic elements of the offence (1) the False pretence and (2) Intent to defraud. Section 20 of the Act defines False Pretence as follows: “False pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law and which the person making it knows to be false or does not believe it to be true.” “Intent to defraud” is not defined in the Act. Black’s Law Dictionary, 9th Ed. described the word “fraud’ also termed “intentional fraud” to mean a misrepresentation made recklessly without belief in its truth and intended to induce another person to act. In the case of IKPA V. STATE (2017) LPELR 42590 (SC) cited by learned counsel for the Appellant, Augie JSC described the term fraudulent misrepresentation or representation to mean: “a false statement that is known to be false or is made recklessly without knowing or caring whether it is true or false and that is intended to induce a party to detrimentally rely on it.” See also AWOBOTU v STATE (1976) LPELR-649 (SC), where Obaseki JSC on “intent to defraud” observed: “In Welham v The Director of Public Prosecutions 1960 Cr App R125, approved in the Queen v Abuah (1961) 1 All N.L.R. by the Supreme Court, Lord Tucker in his judgment at p. 155 said of intent to defraud as follows:- “Put shortly ‘with intent to defraud’ means with intent to practice fraud on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in anyway by the fraud, that is enough. At this point, it becomes possible to point the contrast in the statute between intent to deceive and intent to defraud. ‘To deceive’ here conveys the element of deceit, which induces a state of mind without the element of fraud which induces a cause of action or inaction.” In ONWUDIWE V. FRN (2006) ALL FWLR (PT.319) 774 @ 812 TO 813 G – F, Niki Tobi JSC (of blessed memory) observed: “Indeed, the law is settled, that the fundamental ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows: (a) that there was a pretence; (b) that the pretence emanated from the accused person; (c) that the pretence was false; (d) that the accused person knew of the falsity of the pretence, did not believe its truth; (e) that there was an intention to defraud; (f) that the property or thing is capable of being stolen; (g) that the accused person induced the owner to transfer his whole interest in the property.” See also ODIAWA V. FRN (2008) ALL FWLR (PT.439) 436; FRN V. HELEN BANKE LAOYE (2007-2011) ECLR VOL. 2 @ 69, cited by learned counsel for the Respondent. The following are consequently the ingredients which the Prosecution must prove to secure a conviction. i. That there was a pretence ii. Pretence emanated from the Defendant iii. Pretence was false iv. Accused person was aware of the falsity of the pretence v. Intention to defraud vi. Accused person induced the owner to transfer his whole interest in the property.”
per IYIZOBA, J.C.A (PP. 8-12, PARAS. F-E). PER OBASEKI – ADEJUMO, J.C.A.

ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A. (Delivering the Leading Judgment): This appeal follows from the decision of the High Court of Lagos State Coram; OBADINA, J., delivered on 21st April, 2008 in favour of the Respondent upon an 11 count information dated 30th January, 2007 for offences of obtaining money by false pretence, forgery, uttering false document and false declaration on oath contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act No 13 of 1995 (as amended no 62 of 1999), Sections 467, 468 and 192 of the Criminal Code (Cap C17) Vol 2 Laws of Lagos State, 2003.

The lower Court found the Appellant guilty on counts 2, 3, 4, 5, 6, 7, 8 & 9 of the counts; convicted and sentenced him to 3 years imprisonment each, the said counts were to run concurrently.

Dissatisfied with the conviction, he filed a notice of appeal dated 24th April, 2008 on 6 grounds, the Appellant is currently on bail.

The Appellant in its brief of argument of 19th November, 2009 formulated 3 issues by Onisafo Ifogha Esq of De Remedium Chambers, thus;
a) Whether having regard to the available evidence adduce before

the lower Court, the prosecution proved the offence of forgery in counts in counts 2, 4, 6 and 8 of the information beyond reasonable doubt.
b) Whether having regard to the available evidence adduced before the lower Court, the prosecution proved the offence of uttering false document in counts 3, 5, 7 & 9 of the Information beyond all reasonable doubt.
c) Whether the circumstantial evidence adduced by the prosecution and relied upon by the lower Court was cogent and compelling enough to justify the lower court’s conviction of accused/Appellant’s brief on 19/5/11 deemed on 19/11/18 on counts 2-9 of the information.

The Respondent on the other hand in his brief of 19th May, 2011 deemed 19th November, 2018 adopted issues 1 & 2 of the Appellant’s with slight modifications and added one more issue which was formulated by Aliyu M. Yusuf, Esq of the Economic and Financial Crime Commission (EFCC);
1. Whether the Respondent proved counts 2, 4, 6 and 8 of the information beyond reasonable doubt against the Appellant at the lowest Court as required by law (from ground 2).
2. Whether the Respondent proved counts 3, 5, 7 and 9 of the information beyond reasonable doubt against the Appellant at the lower Court as required by law (count 2)
The Respondent also formulated issues for Cross – appeal;

Whether the lower Court was right in discharging and acquitting the Appellant on count 1 of obtaining money under false pretence having found him guilty of forgery of the letter of allocation Exhibit P11 which he used in obtaining the said sum of N1.5 Million from the victim pw2 (ground 1 and 2 of notice of appeal).

As a fundamental issue it appears that issues 1 & 2 of the parties were formulated from ground two of the Appellant’s notice of appeal, its trite that no two issue can be formulated from the same ground of appeal, it amounts to proliferation of grounds of appeal.
In SOCIETY BIC S.A. & ORS v CHARZIN INDUSTRIES LTD (2014) LPELR – 22256 (SC), the apex Court held thus on the effect of framing two issues from one ground of appeal;
“It is an established principle of law that the number of grounds of appeal should on no account be less than the issues for determination and framing two issues from one ground of appeal is a violation of the said

principle. See Agu v. Ikewibe (1991) 3 NWLR (Pt. 180) 385. A ground of appeal should not be split to raise two issues. See also A-G Bendel State v. Aideyan (1989) 4 NWLR (Pt. 118) 646; Ugo v. Obiekwe & Anor (1989) 1 NWLR (Pt. 99) 566; Adelaja v. Fanoiki (1990) 2 NWLR (Pt.131) 137. The two issues ought to have been ignored or struck out as incompetent as it is not the duty of the Court to make a choice for the Appellant between the two issues allegedly framed from one ground of appeal.”
per NGWUTA, J.S.C (PP. 30-31, PARAS. E-A).

In the Appellant’s brief at page 6, he amended the grounds to read ground 4, therefore the issue of proliferation of issues from one ground does not arise.
Therefore, I shall consider the issues on its merit.

APPELLANT’S SUBMISSIONS
The Appellant contend that the lower Court erred in law when it agreed with the prosecution counsel that since the allegation is that the accused person paid no money to the Lagos state government and he is asserting that he did, the onus shifted to him to substantiate his assertion. The lower Court relied on the evidence that 4 plots in the same scam were traced to

him and he failed to adduce evidence on how he acquired each of these properties, evidence of other jobs done apart from his employment that made him have money to acquire them that these facts still do not prove conclusive evidence that Appellant was the perpetrator, he relied on IKO v THE STATE (2001) 6 MJSC 1 PP. 38; OGIDI v STATE (2005) 5 MJSC 155; AMALA v STATE (2004) 11 MJSC 147; ALMU v STATE (2009) 4MJSC (PT. 11) 147 PP 177; MUSA v STATE (2009) 7 MJSC (PT. 1) 52; AROGUNDADE v STATE (2009) 2 MJSC (PT. 1) and Section 36 (5) of the 1999 Constitution as amended.

Appellant referred to Section 465 of Criminal Code Law; that all ingredients must be proved beyond reasonable doubt. He referred to AKPA v STATE (2008) 7 MJSC 77 PP. 91.

He further submitted that it was Barrister Yinka Ige that drew up the deed and not him, and he did not draw up the treasury receipts, letter of allocation and the deed of assignment, therefore, he cannot be found criminally liable for false terms therein.

Appellant urged the Court to quash the conviction and sentence in count 2, 4, 6 & 8 having not been proved beyond reasonable doubt.

On issue 2, the Appellant complained on conviction on 3, 5, 7 & 9 of information beyond all reasonable doubt. He referred to Section 468 of the Criminal Code and emphasised knowingly and fraudulently.

That Exhibit D1 exonerated him and that the proper weight was not accorded the document due to failure to subpoena the maker who is now a judge of the Lagos State High Court in line with Section 91(1) and (2) of the Evidence Act. That the lower court erred in this regard because it was certified in line with Section 93 & 97(1) e of the Evidence Act, he relied on EDJEKPO v OSIA (2007) 5 MJSC 77. The lower Court ought to have accorded weight to Exhibit D6 based on judicial notice of adequate training given to the staff of the Ministry of Justice, the Appellant did not know about the revocation of the land allocation because of treasury receipts, hence the Appellant was discharged on count 1.

Thirdly, the Counsel submitted that the conviction of Appellant can be based on confessional evidence, circumstantial evidence, and evidence of eye witness to the commission of offence, he relied on EMEKA v THE STATE (2001) 5 MJSC 1 PP. 12; NIGERIAN NAVY v LAMBERT (2007) 11 MJSC 1 PP. 10.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

That there was no case or scheme of fraud against either the complaint and or the Lagos State Government.
He relied on EBENEHI v STATE (2009) 2-3 MJSC 138; AMALA v STATE (2004)11 MJSC 147; OGIDI v STATE (2005) 5 MJSC 155; ADEKUNLE v STATE (2006) 10 MJSC 107 P121; ORJI v STATE (2008) 6 MJSC 169 -197.

That where there are two interpretations of circumstantial evidence then there is no proof beyond reasonable doubt, therefore, the Appellant cannot be found guilty as the circumstantial evidence is not cogent and compelling enough to justify the judgment.

He submitted in conclusion that the Appellate Court will interfere when appraisal of facts is on a wrong premise, he relied on EDJEKPO v OSIA (SUPRA).

RESPONDENT’S SUBMISSION
The Respondent in response referred to the counts in issue and evidence adduced by prosecution; Pw2, Pw3, Pw5 & Pw6 which were not discredited under Cross – examination, the prosecution established that the fundamental requirement for allocation of Block 72 plot 16, Isheri North residential scheme in favour of the Appellant is that he must have paid for the plot to the Lagos state Government Treasury, and in this case, the Appellant procured forged receipt to show that he paid and subsequently presented the receipts among other documents to obtain money from the victim in this case.

That it was further proved that the Treasury receipts No 474952 and 474956 presented were false. Pw5 and Pw6 testified to this effect, Exhibit P7 report from Lagos State Government (State Treasury Office to the EFCC) at page 152 – 153 was clear. Exhibit P9 was response to inquiry from Lands Bureau that the letter of allocation was erroneously made to him on the basis that payments were genuine.

Respondent further submitted that the Appellant could not produce the lady he paid cash of N 545,000 at the accounts department.
He relied on NIGERIAN AIR FORCE v OBIOSA (2003) 4 NWLR (PT. 810) 233 at 233 at 276; NIGERIAN AIRFORCE v JAMES (2002) 18 NWLR (PT. 798) 295 AT 322; ALAKE v STATE (1991)7 NWLR (PT. 205) 567; OMEGA BANK NIGERIA v OBC LTD (2005) 1 SC (PT. 1) 49 AT 74; OKONKWO v STATE (1998) 8 NWLR (PT. 561) 210; ABADOM v STATE (1997) 1 NWLR (PT 479)1; OSONDU v FRN (2000) 12 NWLR (PT 602) 483.

Respondent further submitted that the prosecution discharged its onus of proof.

He relied on EMEKA v STATE (2001) NWLR (PT. 734) 667 AT PAR G – H to the effect that the evidence of Pw1, 2, 3, 5 & 6 were uncontradicted and sufficient circumstantial evidence MILITARY GOVT OF WESTERN STATE v AFOLABI LANIBA & ANOR (1974) 10 SC 227 AT 233; NATHANIEL NASAMU v STATE (1979) 6-7 SC 153 161; STATE v NAFIU RABIU (1980) 1 NCR 47; R v TAYLOR & ORS (1928) 21 CR. APP R AT 21. All to the point that the document was used as an intermediate step in the scheme of fraud and was presented and uttered by the Appellant in order to gain advantage against the victim.

In issue 2 on Counts 3, 5, 7 & 9 of the information which deals with uttering and forgery of documents, he stated that the essential elements are that the document or writing is false and it was uttered knowingly and fraudulently, he relied on ALAKE v STATE; OSONDU v FRN. The Appellant positively identified Exhibit P12 and 14 as the receipts he got which was found to be fake, this was corroborated by Pw1, Pw3 and Pw4 which have not been rebutted.

In reply to submission of Appellant on the no weight accorded Exhibits D1, the Respondent urged this Court to discountenanced

the submission as it does not arise from the record of proceedings he referred to pages 238 and 239 of the record and relied on UNITED NIGERIAN CO LTD v UNIVERSAL COMMERCIAL AND INDUSTRIAL CO LTD (1999) 3 NWLR (PT 593) that admissibility differs from weight, he further cited YAKUBU v OMAIBOJIE (1998) 7 NWLR (PT 539) 708 AT 719; OKONKWO v STATE (1998) 8NWLR (PT. 561) 210 ABADOM v STATE SUPRA.

Respondent submitted that the Appellant failed to prove the facts, that is; documents that he obtained a loan from CTSS, he did not present any documents, this fact was missing in the Defence to the EFCC and extra judicial statements of P1, P2, P3 and P4 which were admitted without objection from the Appellants.

Respondent submitted that it’s defence to the four – allocations procured with forged receipts were procured by his wife as in Exhibit P29, he failed to call his wife to testify to this assertion, he stated that this fact was within his personal knowledge and onus was on him to prove. He further submitted that Exhibit P11 was prepare by Lands Bureau based on false representation of the Applicant and instructed his lawyer to produce it.

On the possibility of a syndicate of fraudulent officials operating in the Lands bureau, Respondent submits that there is no evidence of payment into the bank, he cited Exhibit P20;WAKALA v STATE (1991) 8 NWLR (PT 211) 552 AT 562 PAR A.B. and MANGAI v STATE (1993) 3 NWLR (PT 279) 108 AT 119 PAR B- C. Respondent posit that he who has a special defence has the evidential burden on him.

The Appellant submitted that Pw1’s evidence did not show by forensic examination that the receipts were forged and the booklet from which the receipts came was not produced.

He submitted that no concrete investigation as to veracity of the Appellant’s defence that he was a victim of fraud carried out in the Lands Bureau. That in Exhibit P. 21 the learned trial judge need not state the Section of the law relied on that the content of Exhibit D1 created doubt of guilt of Appellant.

RESOLUTION
Having read the issues on both sides of the parties its observed that they are similar except for semantics, they deal with the same counts complained about. For purposes of this appeal, I shall adopt the Appellant’s issues, but resolve them together.

The contents of the counts dwelt on the offence of forgery in respect 2, 4, 6 and 8.

It is on record that the Appellant is a senior accountant in the services of Lagos state Government and had provided receipts of payments to the Lands bureau before the letter of allocation was issued, it was a pre-condition for its issuance. The property was sold to the victim, Fashola Shamsideen who discovered that the said allocation was cancelled due to queries on the receipts, upon verification it was discovered that the receipts were not traceable and were scammed receipts thereby tending to forgery of Government Treasury receipts; NO 474952 and NO 474956, the Appellant gave instructions to his lawyer, Mr. Yinka Ige to prepare a deed of assignment with false particulars.

These were the evidence adduced by the prosecution which were unchallenged and uncontradicted. Pw2, Pw3, Pw5 and Pw6 which were the victims; I.P.O, Director of Finance, Treasury office and Scheme officer of Isheri North Residential Scheme respectively supported with Exhibits to the points, see pages 105 – 106 of the record.

Most incisive of all is Exhibit P7 report from the state Treasury office to the EFCC reflected at page 152 -153 of the records, and Exhibit PW8 which was reproduced in the judgment at page 232 of the record which proved the counts and the burden shifted to the Appellant to discharge, but the Appellant failed to call both the person he paid the cash of N545,000 to in the office of accounts department. In EGBUNA v AGHA (2015) LPELR – 25881 (CA), the Court held on the question – Whether an accused has a duty to adduce evidence in support of facts that are strictly within his knowledge thus;
“The Appellant admitted in paragraph 15 of his counter affidavit that O.J. NWOKEOCHA was once in his law firm but has since left to set up his own practice. The Appellant failed to state the date NWOKEOCHA left his law firm. That fact is within the exclusive knowledge of the Appellant. By virtue of Section 140 of the Evidence Act, when a fact is within the exclusive knowledge of a person, the burden is on that person to prove that fact. In law the burden is on the Appellant to prove that when NWOKEOCHA was representing the Respondent at the Magistrate Court, he was no longer in his law firm.”
per BOLAJI – YUSUFF, J.C.A (P. 10, PARAS. A – D).

See further the Apex Court’s decision in YAKUBU v STATE (2014) LPELR – 22401 (SC);
“Although the prosecution has the burden of establishing its case against the accused person beyond reasonable doubt and the accused has no duty to prove his innocence, he nonetheless has a duty to adduce evidence in support of facts that are strictly within his knowledge. See Section 140 of the Evidence Act, 2011 (as amended).”
per KEKERE – EKUN, J.S.C (PP. 14 – 15, PARAS. G – B).
The Appellant was duty bound to discharge the burden of proving; 1. How the receipts were procured 2. Show that they were not forged. The burden herein is different from that of the burden in Section 138 of Evidence Act, as in the list of cases cited by the Appellant, they are not applicable.

From the evidence adduced, it was the Appellant that supplied the facts with which the deed of assignment was prepared therefore, he takes responsibility for the deed if based on wrong premise and based on fictious Treasury receipts.

Appellant suggested the existence of a cabal in charge of issuing false receipt, it behoves on him to prove the existence of same haven worked in the accounting department of Lagos State, he could not name or trace the lady he paid to therefore the defence does not exonerate him, it is an afterthought. Moreover, I have perused the exhibits made at the EFCC, he did not mention this fact.

Appellant argued that the burden of proof of forgery has not been discharged.
In ACB PLC v NDOMA –EGBA (2000) LPELR – 9139 (CA), the Court held;
“Forgery is a criminal offence. The onus is on the party who alleged to establish the forgery and this he must do beyond reasonable doubt. Where a party denies making a document which he is alleged to have executed or signed or thumb-printed, such denial is tantamount to saying that the document is a forgery or a fake. In such a situation, the burden of proof of the forgery rests on the party who alleges since forgery is a crime, the onus of proof on him who alleges is proof beyond reasonable doubt; Ikoku v. Oli (1962) 1 SCNLR 307; Adelaja v. Alade (1999) 6 NWLR (Pt.608) 544 at 557 to 558.”
per EDOZIE, J.S.C (P. 10, PARAS. A – C).

The receipts were found to be fake, since the Appellant produced same for a transaction, it behoves on him to prove them to be genuine as well as the Deed of assignment as he who has knowledge of same, this he has failed to do. Therefore, the prosecution proved the counts and the lower Court rightly in my view convicted and sentenced the Appellant.

On the offence of uttering false document in count 3, 5, 7 and 9 of the information, stems from Section 468 of the Criminal code which clearly defines it as knowingly and fraudulently uttering a false document or writing or a counterfeit seal, the key word is knowingly here.

The evidence on record adduced show that the Appellant was involved in 4 out of 170 plots allocation and these were in the name of his children, and one other person. He could not satisfy the court how he came about payment of 4 plots having stated vigorously that he was only a civil servant without more. He omitted to add that he took a loan from CTSS but failed to tender loan details or mention same anywhere else, see page 10 of additional record. It was a case of fake treasury receipts issued, for which they were revoked but this was after he had sold to the victim. This was extracted during Cross – examination, see page 7 of additional record. That the Appellant was not aware of the revocation is not the bone of contention but whether he was aware of the presentation of false treasury receipts used for the allocation, therefore, Exhibits D1 is neither here nor there in this case, more so that it does not bear his name nor refers to him nor his petition.

The offence was fake treasury receipts, signing a deed of assignment and all documents pertaining to the land were the testimonies of PW1, 3 and 4 together with Exhibits P12 and 13 which he got after payment which was later found to be fake. This has been proved beyond reasonable doubt, all the evidence points to him and he holds the key as to where this came from.
I resolve issue 1 and 2 in favour of Respondent.

On the whole analysis in the above issues 1 & 2 thereof, I am of the view that circumstantial evidence linked the Appellant to the exhibits; fake receipts, I agree with the lower Court’s judgment especially reliance being placed on the case of OSONDU v FRN (SUPRA) that; “where a document was used as an intermediate step in the scheme of fraud then if it is shown that such a document was false and presented in order to gain advantage, an irresistible inference exist that the accused forged the document with his own hands or procured someone to commit the forger.’’

The evidence was such that no other person committed the fraud.
I resolve this issue in favour of Respondent.
On the whole, the appeal lacks merit and it is dismissed.
The judgment of the High Court of Lagos State Coram; OBADINA, J., delivered on 21st April, 2008 is affirmed.

CROSS – APPEAL
The Cross – Appellant filed a notice of Cross – appeal on 9th May, 2008 and a Cross – Appellant brief embodied in the Respondent brief at pages 19 – 25. Wherein the Respondent/Cross – Appellant formulated a sole issue;
“Whether the lower Court was right in discharging and acquitting the Appellant on count 1 of obtaining money under false pretence having found him guilty of forgery of the letter of allocation Exhibit p11 which he used in obtaining the sum of N1.5 Million from the victim – PW2 in view of the overwhelming evidence adduced. (grounds 1 and 2 of the Notice of Cross – Appeal)

The Cross – Respondent’s brief is filed on 23rd March, 2012 deemed on 19th October, 2018 and formulated a sole issue for determination;
“whether the lower Court was right in finding the Appellant/Cross – Respondent not guilty of the offence of receiving money by false pretences.’’

The Cross – Appellant complained about the discharge and acquittal of the Cross – Respondent on the offence of obtaining the sum of N 1, 500,000 by false pretences.

The lower Court after finding him guilty for forgery and uttering refused to convict him for obtaining money under false pretences because of contributing lapses of the land bureau and the fact that the Appellant had fully repaid the N1.5m he collected from PW2, the victim, see page 232 of the judgment.

Cross – Appellant contended that the reason is not in line with the position of the law, and that contributory negligence does not apply herein as to absorb him from liability, he relied on ALAKE v STATE (1991) 7 NWLR (PT. 205) 567 AT 592 on elements of offence of obtaining by false pretences to be proved and must be proved and that this has been proved/established step by step by the prosecution by unchallenged evidence. Therefore, there was no reason for not upholding count 1 even though he said he had returned the said sum.

The Cross – Respondent on the contrary submitted that the burden of proof is on the prosecution and relied on IKO v THE STATE (2001) 6 MJSC 1 PP. 38; ALMU v STATE (2009) 4 MJSC (PT. 11) 147 PP171; ALAKE v STATE (1991) 7 NWLR (PT. 205) 567 PP. 591 To the effect that where doubt exist same must be resolved in favour of the accused person.

He submitted that the prosecution failed to prove the ingredients of the offence of receiving money by false pretence, because of the presence of an indemnity clause in the deed of assignment which covers a defect in title and can be invoked by the complainant. He referred to the testimony of PW1, and search by the bank of the complainant that he was duly registered as the owner, and therefore submitted that there was no intention to defraud the complainant and had refunded the money before the charge was filed.

RESOLUTION
Upon perusal of both issues, I find that they are the same, save for semantics. I shall adopt the Cross – Respondent which is directly on the point.

It is not disputed that the lower Court found the Cross – Respondent guilty of forgery of the letter of allocation and that he obtained a value for it.

From the overwhelming evidence before the Court, the Cross – Respondent from the start set out to obtain not only the allocation under this appeal but the 4 allocations through fictions method thus exploiting the system. It was such that once the receipts were submitted the allocation was issued and not verified for audit purposes until later.

No rebuttal of the fact that the receipts did not bear any name nor what it was for, it was not a traceable name of a cashier/accounts who produced same. The Cross – Respondent was an accountant in the system, in employment of Lagos state, he was therefore without doubt familiar with payment and traceable receipts, what more there was nothing showing even if he paid cash, the source of this funds, see page 234 of records. Which would be 545, 000 x 4 this exceeds N2Million and must be traceable. The Cross – Respondent did not rebut the evidence that he procured these receipts which were to be used in future in local government settings in 2002 for a transaction in year 2000 in the Land bureau. There was evidence that the said money even though receipts were produced never reached the coffers of the Lagos state government.

The burden at this stage shifted to the Cross – Appellant, who insisted that he paid cash to a lady and was issued receipts the next day. There was no evidence to show how he paid for the money, if it left his account and if it was loan papers of such or if his wife did the transaction. Other names affected by the fake receipts are that of his family. To my mind, this is a serious charge that all hands must be on deck to rebut the overwhelming evidence on record, but all adduced was feeble.

reasonable doubt thus: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in the adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities, but it does admit high degree of cogency, consistency with an equal high degree of probability.”
per DONGBAN – MENSEM, J.C.A (PP. 20 – 21, PARAS B-F).

The Cross – Respondent’s counsel stands on a faulty premise when he says the money was returned and the Cross – Respondent was the original allottee. This is beside the point, he collected money on the premise that it was legally allocated to him. From the onset it was a design to deceive and pass off like all was well (legally allocated) till the fiction’s receipts were discovered and allocation revoked. Even the land officials

were fooled, and believed a lie, all processes built on it were also part of the false pretences. The design of the act was meant to be iron cast but due to untraceable funds, during verification the design became an obvious defect. Therefore, returning the money does not absolved the Cross – Respondent from the act.

I disagree that the fact that the window was left open and the burglar who came in through the window was caught at the end, should not be held liable because the owner of the house forgot to close the widow properly. This is the scenario here and I find the submission of the Cross – Respondent absurd. Contributory negligence has no place in this appeal, neither is the pleading defence of mistake and innocent victim doctrine will not avail him.

to law. The law is trite that sympathy and sentiments have no place in the administration of justice. A Court of law does not base its decision on sympathy or sentiments. The situation in which the Appellants find themselves in is unfortunate, but sentiments command no place in judicial deliberations: KALU vs. FRN (2016) LPELR (40108) 1 (SC) and HUEBANER vs. AERONAUTICAL INDUSTRIAL ENGINEERING & PROJECT MANAGEMENT LTD (2017) LPELR (42078) 1 at 58 (SC). There is nothing discriminatory in the application of Section 44 of the NDIC Act, the said provision which provides that the limitation law will not apply to an action to recover debt owed to a failed or failing bank cannot be extended to the Appellants in respect of the causes of action in their counterclaims. It is justice according to law. The circumstances of the NIGERIA PORTS AUTHORITY case relied upon by the Appellants are totally different from the instant case. In the said case, the rationale for the decision of the Apex Court is that since the Nigeria Ports Authority had cast the first stone by going to Court, they had waived their right to insisting that they be given pre-action notice before they

can be sued on the counterclaim since they were already in Court with the defendant, whom they had dragged to Court. It is not a comparable situation in this matter. As already stated, the provisions of Section 44 of the NDIC Act inures in favour of the Respondent and they cannot be said to have waived their right in respect of the Appellants having failed to bring the action in respect of the causes of action in their counterclaims when the main action was filed. Facts are the fountainhead of the Law and the ratio decidendi in a case is not to be pulled out of context and given general application: ADEGOKE MOTORS vs. ADESANYA (1989) 5 SC 41 at 130 and APC vs. INEC (2014) 11 SC 36 at 216. I am therefore unable to agree with the Appellants that their right to freedom from discrimination was breached by the lower Court allowing the Respondent’s counterclaim to proceed while dismissing their counterclaims. Put simply, the Appellants were indolent in pursing the causes of action in their counterclaims, which causes of action, I iterate, had accrued as at 1998 when the main action was commenced, but they chose not to pursue the same. Equity aids the vigilant, not the indolent.”
(PP. 46 – 48, PARA. C).

Therefore, in the consideration of Count 1, I have read the evidence on record and found stare decisis of decisions on this angle illuminating.
In OJUKWU v FRN (2019) LPELR – 46494 (CA) this Court held thus;
“Section 1(1) of the Advance Fee Fraud Act, 2006 provides as follows: 1(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud a. Obtains from any other person, in Nigeria or any other country for himself or any other person; b. Induces any other person in Nigeria or in any other country, to deliver to any person; or c. Obtains any property; whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under the Act. 2. A person who by false pretence and with intent to defraud, induces any other person in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.

A person who commits an offence under Sub Section (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine. By Sub Sections (1) and (2) of Section 1 above the prosecution to succeed in the charge must prove and establish the two basic elements of the offence (1) the False pretence and (2) Intent to defraud. Section 20 of the Act defines False Pretence as follows: “False pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law and which the person making it knows to be false or does not believe it to be true.” “Intent to defraud” is not defined in the Act. Black’s Law Dictionary, 9th Ed. described the word “fraud’ also termed “intentional fraud” to mean a misrepresentation made recklessly without belief in its truth and intended to induce another person to act. In the case of IKPA V. STATE (2017) LPELR 42590 (SC) cited by learned counsel for the Appellant, Augie JSC described the term fraudulent misrepresentation or

representation to mean: “a false statement that is known to be false or is made recklessly without knowing or caring whether it is true or false and that is intended to induce a party to detrimentally rely on it.” See also AWOBOTU v STATE (1976) LPELR-649 (SC), where Obaseki JSC on “intent to defraud” observed: “In Welham v The Director of Public Prosecutions 1960 Cr App R125, approved in the Queen v Abuah (1961) 1 All N.L.R. by the Supreme Court, Lord Tucker in his judgment at p. 155 said of intent to defraud as follows:- “Put shortly ‘with intent to defraud’ means with intent to practice fraud on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in anyway by the fraud, that is enough. At this point, it becomes possible to point the contrast in the statute between intent to deceive and intent to defraud. ‘To deceive’ here conveys the element of deceit, which induces a state of mind without the element of fraud which induces a cause of action or inaction.” In ONWUDIWE V. FRN (2006) ALL FWLR (PT.319) 774 @ 812 TO 813 G – F, Niki Tobi JSC (of blessed memory) observed: “Indeed, the law is settled,

that the fundamental ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows: (a) that there was a pretence; (b) that the pretence emanated from the accused person; (c) that the pretence was false; (d) that the accused person knew of the falsity of the pretence, did not believe its truth; (e) that there was an intention to defraud; (f) that the property or thing is capable of being stolen; (g) that the accused person induced the owner to transfer his whole interest in the property.” See also ODIAWA V. FRN (2008) ALL FWLR (PT.439) 436; FRN V. HELEN BANKE LAOYE (2007-2011) ECLR VOL. 2 @ 69, cited by learned counsel for the Respondent. The following are consequently the ingredients which the Prosecution must prove to secure a conviction. i. That there was a pretence ii. Pretence emanated from the Defendant iii. Pretence was false iv. Accused person was aware of the falsity of the pretence v. Intention to defraud vi. Accused person induced the owner to transfer his whole interest in the property.”
per IYIZOBA, J.C.A (PP. 8-12, PARAS. F-E)

Therefore, I am convinced that the elements of receiving money by false pretence was established and proved when the complainant had paid and all documents had been handed over to him, including the said receipts, even a deed of assignment was prepared as passing title to him.
Furthermore, it was in the process of paying for the extra land and the new town authority demanded to see the letter with which payment was made and originals and the Cross – Respondent had none to show, all this was before revocation, at that stage he had known that there was no such documentation having been issued an allocation based on falsehood.
I further agree with the lower Court when she held that the Cross – Respondent was part of the scam leading to allocations based on fake receipts.
I therefore must agree that the lower Court erred at page 231 of the judgement when holding on untenable reasons in law upon which the Cross – Respondent was not found guilty on count 1.
I hereby find him guilty on count 1 and convict him accordingly. I sentence him to 10 years which also would run consecutively with other counts.

The appeal has merits and is allowed. The judgment of Lagos State High Court as per counts 1 discharging and acquitting the Cross – Respondent is reversed and now varied to hold the Cross – Respondent guilty on count 1 and hereby convict and sentence him accordingly.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree

OBANDE FESTUS OGBUINYA, J.C.A.: I had read, in advance, the leading judgment delivered by my learned brother; Abimbola Osarugue Obaseki-Adejumo, JCA. I agree with it. I too allow the appeal. I abide by the consequential orders decreed in it.

Appearances:

O. IFOGA
For Appellant(s)

RESPONDENT NOT REPRESENTED For Respondent(s)

LawCareNigeria

admin

YOU MAY HAVE MISSED

NATIONAL INDUSTRIAL COURT OF NIGERIA (FILING OF APPLICATIONS/MOTIONS IN TRADE UNION MATTERS AND MARKING OF EXHIBITS) PRACTICE DIRECTIONS (NO. 1), 2022

HIGH COURT OF RIVERS STATE (CIVIL PROCEDURE RULES), 2023

HIGH COURT OF OYO STATE (CIVIL PROCEDURE) RULES, 2022

COURT OF APPEAL RULES, 2021

admin

Related Story

YOU MAY HAVE MISSED