OBIAKOR v. FRN
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, May 14, 2021
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
CHIKE OBIAKOR APPELANT(S)
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Lagos State, delivered on the 9th day of January, 2019, presided over by S. S. Ogunsanya, J, (hereafter referred to as the trial Court). The Appellant and his company CNC Industries Ltd were arraigned before the trial Court on a three count charge of stealing, obtaining money by false pretence and issuance of a dishonoured cheque.
The Appellant pleaded not guilty to the charges. The Respondent called four (4) witnesses while the Appellant gave evidence in defence of the Defendants. At the close of the trial, in the judgment of the trial Court, the defendants were discharged and acquitted of the dishonoured cheque but found guilty on counts one and two of the charge for stealing and obtaining by false pretence respectively.
The Appellant who was dissatisfied with the judgment of the lower Court in respect of counts one and two, appealed to this Court by his notice of appeal filed on 20th March, 2020, pages 413 – 417 of the records of appeal.
The background facts are that the Appellant as the MD/CEO of the CNC Industries Ltd was charged as the 1st defendant at the lower Court, was in the business of importation of suitcases from China and selling them in Nigeria. The Complainant (PW2) is a Chinese businessman and business associate of the Appellant who manufactures suitcases in China and ships them to Nigeria for sale. The Appellant made out that he and the PW2 engaged in successful business transactions before and after the transaction which gave rise to the charge against the Appellant.
The business relationship was said to have started in 2009 when the PW2 manufactured suitcases in China and shipped them to the Appellant in Nigeria who would sell them before remitting the money to the PW2. The Appellant and the PW2 were said to have been engaged in four business transactions running into thousands of dollars.
It was made out by the Appellant that sometime in 2011, the PW2 manufactured suitcases worth about $460,000.00 (Four Hundred and Sixty Thousand Dollars) and shipped same to the Appellant who was to sell and remit the proceeds of sale to the PW2. On arrival, the suitcases were found to be substandard in quality and the Appellant was unable to sell the product as expected but was able to sell some and remitted about $240,000.00 (Two Hundred and Forty Thousand Dollars) to the PW2 leaving a balance of about $222,633.00 (Two Hundred and Twenty Two Thousand, Six Hundred and Thirty Three Dollars). The Appellant alleged that the suitcases were poorly finished which made some of the Appellant’s customers return some of the suitcases supplied while some did not pay. The Appellant made out that the unsold suitcases were left in his warehouse. It was contended that the inability of the Appellant to pay the outstanding sum of $222,633 on the transaction led to the dispute between the Appellant and the PW2. The Appellant made out that after the incident, he met up with the PW2 in London and China to resolve the problem and they both agreed to continue doing business together. Thereafter, the PW2 manufactured another set of suitcases with thread finishing which he supplied to the Appellant who sold them and remitted the money to the PW2. On the outstanding transaction, the parties had agreed that the PW2 would ship another set of suitcases of the agreed quality to the Appellant for sale and the Appellant would use the profit to offset the outstanding liability which arose from the unsold defective suitcases. Due to the Appellant’s failure to pay the outstanding balance, the PW2 involved the PW1 another business associate in the same line of business and gave him the bill of lading for the new consignment for the Appellant with instruction to release the goods to the Appellant upon payment for the goods so as not to increase his indebtedness. After several correspondences between the Appellant and the PW2, also meeting with the PW1, the Appellant gave a postdated cheque of N35,000,000.00, the naira equivalent (at the time) of the outstanding $222,633 in favour of the company of the PW1 as a guarantee to pay the sum owed the PW2 upon the sale of the new consignment but, when the PW1 presented the cheque, it was rejected because the amount was above the N10,000,000.00 acceptable by law. The PW1 was advised to return the cheque to the owner for re-issuance in smaller acceptable amounts.
Sometime in July, 2012, the PW2 and the PW3 visited the Appellant’s warehouse and found that many of the unsold suitcases from the transaction in question were there. The Appellant was surprised that the PW1 and PW2 petitioned against him to the Economic and Financial Crimes Commission (EFCC) for his failure to pay the outstanding sum of $222,633 on the transaction in question. The Appellant was arrested by the EFCC and charged to Court.
From the Appellant’s notice of appeal, the following four (4) issues were formulated for the determination of the appeal thus:
1. “Whether in the circumstances of this case, the failure or inability of the Appellant to pay the outstanding balance of $222,633 from a business transaction valued at $460,000 to the complainant (PW2) amounted to alleged breach of contract or criminal offence known to any written law in Nigeria. (Ground 1 of the Notice of Appeal).
2. Whether the prosecution proved beyond reasonable doubt, the offence of stealing $222,633 property belonging to the complainant (PW2) against the Appellant – (Grounds 2 and 3 of the notice of appeal).
3. Whether the prosecution proved beyond reasonable doubt, the offence of obtaining the amount of $222,633 or suitcases valued $222,633 by false pretense from the complainant (PW2) against the Appellant. (Grounds 4 and 5 of the notice of appeal).
4. Whether the lower Court was right to have ordered the Respondent to recover the said sum of $222,633 from the property of the Appellant.” (Ground 6 of the notice of appeal).
The Respondent on her part formulated a sole issue for the determination of the appeal thus:
“Whether the learned trial judge was right in holding that the Respondent proved the case of stealing, obtaining goods by false pretence against the Appellant beyond reasonable doubt in view of the evidence adduce (sic) before the Court.” (Distilled from 1 – 6 of the notice of appeal).
When the appeal came up for hearing, the learned senior counsel to the Appellant, Lawal Pedro, (SAN) who settled the Appellant’s brief of argument filed on 1/9/2020 was served with the hearing notice but, he did not attend Court and no reason was given for his absence. The Respondent’s motion to regularize her brief of argument filed on 8/1/2021 was taken and granted, the Appellant’s brief of argument was deemed argued pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2016.
In arguing his first issue, it was submitted that there is overwhelming evidence before the Court that what existed between the Appellant and the PW2 (complainant – Davis Jin Guoshi) was a business relationship to the extent that after the transaction that led to the present case, the parties engaged in other successful transactions, reference was made to the evidence of the PW2 and the PW3 (the investigating officer) to the effect that the dispute arose from a genuine commercial transaction, pages 256 – 257 and pages 278 – 279 of the printed records of appeal. It was argued that the evidence of the PW1 under cross-examination corroborated that of the PW2 and PW3 to the effect that what took place between the Appellant and the PW2 was purely a business transaction where the Appellant did not fully pay for the suitcases shipped to him. It was submitted that this borders on breach of contract and that the judgment of the lower Court convicting the Appellant for the various offences is not only perverse but a breach of Section 36 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It was submitted that the PW1, PW2 and PW3 admitted that the Appellant had made effort with the PW2 to resolve the contractual dispute, reference was made to the evidence of the PW2, pages 259 – 261 of the printed records of appeal to the effect that the transaction between the Appellant and the PW2 and the Appellant’s inability to pay the balance of the value of the suitcases shipped to his company for sale is not a criminal offence but, a breach of contract. See GEORGE vs. F.R.N. (2013) LPELR – 21895 SC. It was submitted that any conduct that is to be sanctioned must be expressly stated in a written Law as a criminal offence. See NGGILARI vs. STATE (2017) LPELR – 22985 (CA). Also, that law enforcement agents are not institutions for recovery of debts. See KURE vs. COP (2020) 9 NWLR (PT. 1729) 296 at 307, DIAMOND BANK PLC vs. OPARA (2018) 7 NWLR (PT. 1617) 114, PARAS. B-C and KOPEK CONSTRUCTING LIMITED vs. EKISOLA (2010) 3 NWLR (PT. 1182) PAGE 618 at 660. It was concluded on this issue that the conviction of the Appellant for an act that does not amount to a criminal offence created by any written law is erroneous and perverse.
Alternatively, should the Court hold that the conduct of the Appellant constituted the alleged offences charged, the learned counsel submitted that the ingredients of the offences charged at the lower Court were not proved beyond reasonable doubt as argued under issues two and three which are on evaluation of evidence.
In arguing his issue two, it was submitted that for the Court to convict a defendant charged with stealing, the prosecution must prove all the ingredients of the offence beyond reasonable doubt. See SECTION 135 OF THE EVIDENCE ACT, 2011, ANI vs. STATE (2000) 6 SCNJ 98 at 107 and STATE vs. AJAYI (2016) LPELR – 40663 (SC). The definition of stealing was given as in Section 280 of the Criminal Law of Lagos State, 2011 and Black’s Law Dictionary, 8th Edition at page 1453 and the case of ADEJOBI vs. STATE (2011) LPELR – 97 (SC). It was submitted that for the offence of stealing, “taking” or a “conversion” must be proved by cogent and compelling evidence against an accused person charged with the offence of stealing. It was submitted that there was no evidence that the Appellant took the sum of $222,633 or any amount from the PW2.
It was argued that the suit cases were taken with the consent of the PW2 pursuant to the business transactions between the parties as it was in the previous transactions between them. See SMART vs. STATE (1974) LPELR – 3076 (SC). It was re-argued that there was no evidence that the Appellant converted any money belonging to the PW2 or suitcases valued at $222,633 for his use. Further, that there was uncontroverted evidence that the consignment was defective, even though the Appellant was able to pay for some of the consignment. It was argued that the Appellant did not steal any money and did not steal any suitcases. The Respondent was said to have failed to discharge the burden of proof of the alleged offences. See ONAGORUWA vs. STATE (1993) LPELR – 43436 (CA).
In arguing issue three, it was conceded that a person not found liable for an offence of stealing, could be found guilty of the offence of obtaining by false pretence, it is immaterial that the thing obtained or its delivery is through the medium of a contract induced by the false pretence, Section 1 of the Advanced Fee Fraud and Other Related Offences Act. The Learned counsel adopted his argument under issue two as to whether the Appellant obtained the alleged amount of $222,633 from the PW2. The ingredients for the proof of obtaining by false pretences were outlined while reliance was placed on the case of STATE vs. CHIEF AJULUCHUKWU & ANOR (2010) LPELR – 5028, BELLO vs. F.R.N. (2018) LPELR – 43688 (CA). It was submitted that no specific false pretence was alleged in the charge and it was not proved. See ONWUDIWE vs. F.R.N. (2006) LPELR – 2715 (SC). It was submitted that all the evidence adduced by the Respondent’s witnesses relate to events post-delivery of the suitcases. Further, that the evidence of the PW1, PW2 and PW3 were in respect of the failed promises made by the Appellant to pay the balance of the consignment of the suitcases, the intermediary role played by the PW1 and the postdated cheque issued to the PW1’s company on behalf of the PW2 were events that took place after the contract had been entered into and after the consignment in question had been shipped and arrived in Nigeria. It was argued that the Respondent did not prove fraudulent intent against the Appellant at the trial Court in respect of the balance of the payment for the suitcases or any money due to the PW2, reference was made to Exhibit ‘9’, email correspondences between the Appellant and the PW2. We were urged to believe the Appellant’s defence that it was his inability to sell the defective goods that made it impossible for the payment of the balance to be made. It was concluded on this issue that none of the ingredients for the offences charged was proved.
On the fourth issue, it was submitted that there is no doubt that the lower Court possessed the power to make an order of restitution by Law, by virtue of Section 11 of the Advance Fee Fraud Act of 2006. It was submitted that, the trial Court was wrong to have made the order that the Respondent should recover the sum of $222,633 from the Appellant’s property when there was no evidence that the Appellant had sold the whole consignment of suitcases and used the proceed to acquire his property. The learned counsel also adopted his argument under issues two and three above. It was argued that the trial Court did not ascertain the exact quantity and cost of the remaining suitcases the Appellant sold and failed to remit to the PW2. It was submitted that, there is unchallenged evidence that the Appellant had paid over $200,000.00 to the PW2 from the consignment of suitcases and had given out to customers suitcases worth about $200,000.00 (Two Hundred Thousand Dollars) which were yet to be paid for, the PW2 was aware of this, reference was made to the testimony of the PW2 under cross-examination, page 259, paragraphs 14 – 24 of the records of appeal.
Further, that there is no evidence that the money of the PW2 was stolen and used to acquire any property. It was concluded that the trial Court was wrong to have ordered that EFCC should recover the unpaid balance from the Appellant’s property. We were urged to set aside the restitution order, while reliance was placed on ADIJEH vs. C.P. NASARAWA STATE (2018) LPELR – 4453.
On the part of the Respondent, the learned counsel B.O.A. Sonoiki Esq., adopted and relied on the Respondent’s brief of argument filed on 8/1/2021, deemed properly filed and served on 14/1/2021 as his argument in the appeal, in urging us to dismiss the appeal and affirm the judgment of the trial Court.
In arguing his sole issue, it was submitted that the standard of proof in criminal cases is proof beyond reasonable doubt and not proof beyond any shadow of doubt. See NSOFOR vs. STATE (2004) 18 NWLR (PT. 905) 292 at 305, AKINLOLU vs. STATE (2015) LPELR – 25986 (SC), SABI vs. STATE (2011) 14 NWLR (PT. 1268) 421, IWUNZE vs. F.R.N. (2013) 1 NWLR (PT. 1324) 119 amongst others. It was submitted that an appellate Court does not interfere with the evaluation of evidence placed before the trial Court except where it is shown that there has been a miscarriage of justice. See AMUNEKE vs. STATE (1992) NWLR (PT. 217) at PAGE 347, PARAS. C-D. Further, that the Respondent through the PW1 – PW4 and the evidence of the DW1 established that the Appellant collected goods from the PW2 but failed to remit all the proceeds of the sold products to the PW2 but claimed that the goods were substandard and he could not sell them, the evidence of the PW3 was referred to page 278, line 4 of the printed records of appeal. It was argued that this Court ought not to interfere with the exclusive function of the trial Court. See NKEBISI vs. STATE (2010) 5 NWLR (PT. 1188) 471 SC; AMALA vs. STATE (2004) 12 NWLR (PT. 888) at 520. It was contended that the Respondent established the ingredients of the offences charged, while reliance was placed on MUFUTAU BAKARE vs. THE STATE (1987) 3 SC 1 at 32, OKERE vs. THE STATE (2001) 2 NWLR (PT. 697) 397 at 415 – 416, PARAS. H-A, NWATURUOCHA vs. THE STATE (2011) LPELR – 8119 (SC) and YONGO vs. COP (1992) 8 NWLR (PT. 257) 36.
On the ingredients to be proved for the offence of stealing, reliance was placed on Section 383 of the Criminal Code Law of Lagos State, 2003 which is similar to Section 278 (2) of the Criminal Law of Lagos State, 2011. See OSHINYE vs. COMMISSIONER OF POLICE (1960) 5 SC PAGE 105, CHIANUGO vs. STATE (2002) 2 NWLR (PT. 750) PAGE 325 and ADEJOBI & ANOR. vs. THE STATE (2011) LPELR – 97 (SC). The ingredients were given as follows:
1. The thing stolen must be capable of being stolen.
2. There must be ownership of the thing stolen.
3. There was a dishonest (fraudulent) taking or conversion.
On ownership, it was submitted that the Appellant did not deny that he received goods from the PW2 worth $222,633.00 which he has not paid for but made out that the goods were faulty/substandard and is still indebted to the PW2 till date. The suitcases were argued to be capable of being stolen, valued at $222,633.00 which were delivered to the Appellant. While relying on Section 278 (2) of the Criminal Law of Lagos State, 2011, it was argued that from the onset, the Appellant intended to defraud the PW2 and failed to pay up for the goods sold up till date which shows that the Appellant never intended to pay the PW2, thereby dishonestly converted or took the suitcases without remitting the value to the PW2. See ONWUDIWE vs. FRN (2006) 4 SC (PT. 11) 70, AJIBOYE vs. STATE (1994) 8 NWLR (PT. 364), 587 at 602. It was submitted that where money or goods is given for a particular purpose, if it is not used or returned, amounts to stealing as in the present case. See STATE vs. TAIWO (1982) 1 N.C.R. 312 at 319 and NWANKWO vs. FRN (2003) 4 NWLR (PT. 809) 1, 35, PARAS. C-E. Further, that the fact that the Appellant had paid part of the money did not change the Appellant’s case of stealing and obtaining by false pretence. It was re-argued that whether the Appellant sold the goods at a fair price or not, the fact remains that he did not make any payment to the PW2. It was the contention of the learned counsel to the Respondent that obtaining property by false pretence through the medium of contract is a criminal offence vide Section 1 (1)(c) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 14 of 2006. See ROWAYE vs. FRN (2018) 18 NWLR (PT. 1650) 21 at 79 and defined in ROLLS IN REG. vs. ASPINALL (1) 2 QBD 48. The learned counsel gave the essential elements of the offence as obtaining by false pretence itself, obtaining of the property and the intent to defraud. It was submitted that the option left for the Appellant if the goods were defective or substandard was to have sought a civil remedy. See IMANA vs. ROBINSON (1979) 3 – 4 SC at 20. It was argued that the Appellant intended to defraud the PW2. See AWETO vs. FRN (2018) 8 NWLR (PT. 1622) 527 at 541 – 542. Further, that the actions of the Appellant inferred that he had pre-meditated not to pay for the goods at the time he induced the PW2 to supply/deliver the goods to his company and had used the medium of contract to deceive the PW2 to part with the goods. It was submitted that the Appellant issuing a cheque that could not be honoured made the PW2 believe it was a genuine transaction and released the goods. See REX vs. ODIO (1942) 8 W.A.C.A. 15 at 159 and RV ALEXANDRA 26 CR. APP. REP. 116.
With reference to Section 297 (1) of the Administration of Criminal Justice Act (ACJA) 2011, it was argued that it is not a punishment section. See EBUKA vs. THE STATE (2014) LPELR – 23491 (CA) where the Court ordered a return of the property acquired by the ill-gotten money to the victim even though the accused person was discharged and acquitted of the offences with which he was charged. It was argued that the order by the lower Court concerning the property of the Appellant is to ensure restitution in favour of the PW2. It was concluded that our Courts have held that no one should be allowed to keep the proceeds of crime. See EBUKA vs. STATE (2014) LPELR – 23491 (CA) and NWUDE vs. FRN (2016) 5 NWLR (PT 1506) P. 471. We were urged to uphold the conviction of the Appellant.
I have examined the issues formulated by the parties, the Appellant’s three issues cover the Respondent’s sole issue. I would utilize the Appellant’s four issues in the determination of the appeal. In respect of issue one, the evidence of the PW2 (the complainant Davis Jin Guoshi) shows that he had a business relationship with the Appellant over the years, despite the incomplete payment that gave rise to the present case, the PW2 still continued his business with the Appellant. The question that arises is whether the dispute between the Appellant and the PW2 arose from a genuine commercial transaction with no fraudulent intent or misrepresentation of facts or outright stealing tainted with fraudulent intent, to obtain by false pretence? From the evidence of the PW2, pages 246 – 266, particularly at pages 256 – 257 of the printed records of appeal, the PW2 gave evidence to the effect that the transaction that led to the present appeal was not their first one, the first one was the supply of PPE Plastic Injections which the Appellant paid for, sent by the PW2 from China. There was a second and third transactions of shipments of suitcases, the Appellant paid fully for the 2nd transaction. The third shipment, six (6) containers of sixteen (16) per set were the faulted sub-standard suitcases to the Appellant, which the Appellant through several communications between the parties explained that some were returned, some collected but unpaid for by his customers while some were still in his warehouse unsold. The PW3 (Daniel Danladi), a staff of the Economic and Financial Crimes Commission (EFCC) in Lagos at pages 278 – 279 of the printed records, under cross-examination testified in line with the evidence of the PW2 to the effect that the Appellant and the PW2 had several business transactions between them before the one that led to the present case in which the Appellant paid fully. With the present transaction, the Appellant had paid the sum of $240,000.00 (Two Hundred and Forty Thousand Dollars) leaving unpaid the sum of $222,633.00 (Two Hundred and Twenty Two Thousand Six Hundred and Thirty Three Dollars) but, with the promise to pay when his customers pay up for goods collected, on sale of the goods left in the warehouse and proceeds of subsequent sales from other transactions.
The PW1 (His Royal Majesty Igwe Austin Ozoemere Nwankwo) a traditional Ruler, Awka Anambra State who mediated between the PW2 and the Appellant had a business relationship with the PW2 and also a friend to the Appellant, testified in line with the PW2 and PW3 to the effect that the Appellant and the PW2 were business associates, he confirmed that the Appellant paid fully for two previous transactions, paid partly for the transaction that led to this case and had made several promises to pay for the unsold goods. It is on record that the dispute arose from a genuine commercial transaction where the Appellant had not fully paid for suitcases shipped to him from China by his business partner the PW2, the transaction no doubt borders on breach of contract. The Respondent’s witnesses, the PW1, PW2 and PW3 gave account of promises and efforts made by the Appellant to pay the outstanding balance on the transaction that led to the case at the trial Court, culminating in this appeal. The PW2 gave evidence of how a meeting was arranged in London with the Appellant to resolve how the outstanding balance could be paid, they also met up in China for the same purpose and agreed that the PW2 should improve on the quality to be supplied in the subsequent transactions to avoid delay in sale of the products, both parties continued doing business despite the short payment with the goods already supplied, specifically the PW2 supplied suitcases with thread finishing as agreed, as opposed to paper finishing of the faulted products. The thread finished products were supplied without any dispute, see the evidence of the PW2 at pages 259 – 261 of the printed records of appeal, the products were supplied, received and paid for by the Appellant (after the faulted supply that had not been fully paid for). If the Appellant had intended to steal the suitcases (or the monetary equivalent) or to defraud the Appellant, he would not have met up with the PW2 in London and China to discuss how to pay off the outstanding debt, he would have absconded. Also, the PW2 continued doing business with the Appellant after the supply that had not been fully paid for. The PW2 also agreed and knew that the Appellant had complained to him about the poor quality of the goods which were returned by some of his customers, while some were still in his warehouse unsold. I will hereunder reproduce part of the evidence of the PW2 under cross-examination at pages 259 – 260 of the printed records of appeal. The evidence went thus:
Q. “After you sent him this sets of 9 and 16 you had misunderstanding about the balance and payment and he told you that he could not sell, people were owing him, did he tell you that, that customers he gave the product to in the market to sell are owing him over 200 Thousand dollars, did he tell you that?
Q. Okay when you came to Nigeria and he told you that did you ask him to take you to the marketers, the people with the products?
Q. Now when this problem started he came to you, two of you met in London, right?
Q. Now let me ask you. He is owing a lot of money for the sets of 9 and 16, you met in London now after the problem started for the sets of 9 and 16, he came to China to meet you?
Q. Now someone who is owing you huge sum of money, why did you agree to ship another sets of containers of products to him?
A. Because he told me the people did not like this that market has changed.
Q. Mr. Davis after he met you in China for you to produce new set of bags the container you sent to him was one?
Q. He paid you 45 Thousand Dollars for that containers (sic) and later paid 10 Thousand Dollars for that one container (sic) you sent?
Further at pages 262 – 264, the evidence went thus:
Q. “Please take a look at this bag, is this the last set of bag you sent to him?
THE COURT: The sample of the suitcase is admitted by the Court and marked Exhibit D2.
THE DEFENDING COUNSEL: There is a cheque for 2 Million Naira, was that money paid?
THE WITNESS: yeah. I remember.
Q. Then he later paid you the 10 Thousand Dollars?
Q. The first time you met the Defendant you did transaction first time of 190 Thousand Dollars, he paid and the second and he paid and all that, when you met him did you think he was a fraudster? Because in your petition, you said he was a fraudster.
THE WITNESS: What is a fraudster?
THE DEFENDING COUNSEL: 419
THE WITNESS: I don’t think so he is a 419.
THE DEFENDING COUNSEL: Thank you for been (sic) honest.”
(Underlining mine for emphasis).
From the evidence adduced and the proceedings at the trial Court, the crux of the matter is the Appellant’s inability/failure to pay the balance of the value of the suitcases shipped to his company for sale, which is at the worst a breach of contract and not a criminal offence. It is clear that after the default in payment for the particular supply that gave rise to the present case, the Appellant after his meetings in London and China respectively continued to do business with the Appellant. The PW2 also admitted that the Appellant is not a fraudster and that he had promised to pay his outstanding balance from subsequent supplies. If truly the PW2 believed the Appellant intended to steal the suitcases or to defraud him of the monetary equivalent, he would not have continued dealing with the Appellant when the previous supply had not been fully paid for.
Further, Section 36 (8) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that any act or omission which did not constitute a criminal offence at the time it took place cannot be guilty of a criminal offence. In the present case, failure to pay up the balance for the supply of goods in a business transaction, which the Appellant clearly promised to pay in due course, not denied by the PW2, the act of the Appellant cannot constitute the criminal offences of stealing and obtaining by false pretence for which the Appellant stood trial and was convicted for. See GEORGE vs. FRN (2013) LPELR – 21895 SC.
It has been stressed by the Apex Court over the years in a plethora of cases that Law enforcement agents ought not to be used to recover debts. A case of indebtedness cannot properly translate into a case of stealing and obtaining by false pretence. Since it is a clear case of indebtedness, the EFCC, a law enforcement agent is not a debt recovery agency and has no business to dabble into assisting a business partner in a contractual dispute to recover money owed to him, which is a purely civil transaction. No doubt, the EFCC can detect crime, investigate and prosecute. When the PW2 wrote to EFCC, the agency ought to have advised him as to the right action to take to recover the money the Appellant owed him, not criminal prosecution. Section 6 (b) of the EFCC Act, 2004 stated clearly the extent of the powers to be exercised by the EFCC as follows:
6. The commission shall be responsible for –
(b) “the investigation of all financial crimes including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, etc.”
The function of the EFCC is to receive complaints in the specified areas, prevent and or fight the commission of financial crimes in Nigeria pursuant to the above subsection of the Act. It does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts between parties or civil transactions as has happened in the present case, to recover debt arising from a business transaction. As a word of caution, the security agents should focus on their statutory functions for which they were set up for investigating, preventing and prosecuting crimes.
In DIAMOND BANK PLC. vs. OPARA & ORS. (2018) (SUPRA), his Lordship Bage, JSC, in a similar situation cautioned the EFCC thus:
“What is even more disturbing in recent times is the way and manner the Police and some other security agencies, rather than focus squarely on their statutory functions of investigation, preventing and prosecuting crimes, allow themselves to be used by overzealous and/or unscrupulous characters for the recovery of debts arising from simple contracts, loans or purely civil transactions.”
I would add that the security agencies such as the Respondent ought to guard their integrity and powers jealously so as not to erode the confidence the general public has in them. The EFCC is not a debt recovery agency and should resist being used as one.
A debt exists when a certain sum of money is owing from one person (the debtor) to another (the creditor), it denotes the obligation of the debtor to pay and the creditor has a right to enforce payment but, not in the present manner of alleging stealing and obtaining by false pretence where the elements of these two offences were not in existence.
Further, the trial Court ought to have examined the nature of the transaction between the parties. The PW2’s remedy was in a civil action where he could have claimed damages for breach of contract if proved or specific performance, it could be within a specific period thus limiting the time to pay. See A.G. ADAMAWA STATE & ORS. vs. A.G. FEDERATION (2014) LPELR – 23221 (SC) P. 43, PARAS. A-C in which the Apex Court defined what a debt is. The Respondent has a right to recover the money owed him by the Appellant but not in the manner of the Appellant standing trial for criminal offences, convicted and sentenced to a prison term over a debt. See NIPOST vs. INSIGHT ENGINEERING CO. LTD (2006) LPELR – 8240 (CA) PP. 22 – 23, PARAS. C-D.
I hold that the conduct of the Appellant is not a criminal offence created by any written law as rightly argued by the learned counsel to the Appellant, the Appellant’s conviction is erroneous and cannot stand. Issue one (1) is resolved in favour of the Appellant.
Having held that the Appellant was wrongly tried and convicted, the appeal should end here but, for whatever it is worth, I would resolve issues two, three and four in the alternative should I be wrong in the resolution of issue one. I will therefore resolve issue 2 – 4 on the merits. Under issue two, it is trite that in every criminal trial, the prosecution is required to prove its case beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and the cases of ORISA vs. STATE (2018) LPELR (SC) P. 44, PARAS. C-E, NWANKWOALA vs. FRN (2018) LPELR – 43891 (SC) P. 15, PARAS. B-E; PP. 32 – 33, PARAS. F-C and MBACHU vs. STATE (2018) LPELR – 45163 (SC) PP. 3 – 4, PARAS. C-A. It is not proof beyond all shadow of doubt. To achieve this, the prosecution is required to prove all the necessary ingredients of the offence(s) charged through evidence. The burden of proof is always on the prosecution to prove the guilt of the accused and not the accused person to prove his innocence which is presumed until the contrary is proved. The Appellant was charged and convicted for stealing the sum of $222,633 belonging to the PW2. Section 280 of the Criminal Law of Lagos State defined what stealing is under that law. The main element is under Subsection 2(a) which provides as follows:<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
“A person deemed to dishonestly take or convert the property of another if he does so with:
(a) Intent to permanently deprive the owner of the property.”
From the above provision, the key words to prove in the offence of stealing is the “taking” or “fraudulent conversion”. As rightly argued by the learned counsel to the Appellant essential ingredients to prove are: the taking or conversion of the property that is capable of being stolen and it must belong to another. There was no evidence at the trial Court that the Appellant took the sum of $222,633 from the PW2 (the complainant), it is in evidence that the suitcases supplied to the Appellant were valued at $460,000, part of which the Appellant had paid leaving a balance of $222,633. The suitcases were supplied with the consent of the PW2 from a business transaction between the parties, a business which the parties continued after the short payment of the particular transaction that led to the present appeal. There is nothing to show that the Appellant stole the amount of money for which he was convicted. The Appellant did not fraudulently or dishonestly take any money belonging to the PW2 without his knowledge or consent, to qualify for stealing, there was no conversion proved. While resolving issue one, the delay in the payment of the outstanding amount was explained, the defective supply (low quality) made it impossible to sell off all the goods, some were still in the Appellant’s warehouse, while some customers had not paid for the suitcases supplied by the Appellant’s company. I earlier recapped the evidence of the PW2 and that of the PW3 to the effect that some of the unsold suitcases were in the warehouse of the Appellant and the fact that some of the Appellant’s customers had not paid for the suitcases supplied to them. The Respondent did not controvert these facts, this can be clearly seen in Exhibit 19 (the investigation report) and Exhibit 9 (copies of email correspondences between the PW2 and the Appellant) who had a cordial business relationship. There was no trace of fraud on the part of the Appellant. In CHYFRANK NIGERIA vs. F.R.N. (2019) LPELR – 46401 (SC) PP. 12 – 16, PARAS. B-D and 20 – 21, PARAS. E-F, his Lordship Nweze, JSC outlined the ingredients to be proved for a conviction for stealing as follows:
(i) “That the thing stolen is capable of being stolen;
(ii) That the accused person has the intention of permanently depriving the owner of the things stolen;
(iii) That he was dishonest and
(iv) That he had unlawfully appropriated the thing stolen to his own use.”
See OYEBANJI vs. STATE (2015) LPELR – 24751 (SC) 16 – 17; MOHAMMED vs. THE STATE (2000) FWLR (PT. 30) 2623, 2626; AJIBOYE vs. F.R.N. (2018) LPELR – 44468 (SC) PP. 59 – 60, PARAS. D-C and AYENI vs. STATE (2016) LPELR – 40105 (SC) PP. 25 – 26, PARAS. F-B. It is on record from the evidence adduced at the trial Court that the sum of $222,633 allegedly stolen by the Appellant was not physically available, the money was not given to or taken away by the Appellant. The unsold suitcases were in the warehouse and some with the customers, which the Respondent did not dispute. The money which was not in existence is not capable of being stolen by the Appellant or anybody else. Failure to pay a debt cannot amount to stealing. The trial Court had no basis to have convicted the Appellant for stealing the sum of $222,633 belonging to the PW2. The second issue is resolved in the favour of the Appellant.
In respect of issue three, I have held under issue two, that no money was obtained by the Appellant from the PW2. There is no dispute that the Appellant is indebted to the PW2 in respect of suitcases supplied to him by the PW2. To prove that the Appellant obtained the sum of $222,633 (the value of the remaining suitcases) by false pretence, the prosecution needed to have proved the following essential ingredients:
(a) A pretence was made by the accused person;
(b) The pretence was false;
(c) The accused knew the pretence to be false or did not believe it to be true;
(d) That there was an intention to defraud;
(e) The thing must be capable of being stolen;
(f) The pretence operated on the mind of the person from whom the property was obtained, and
(g) Some property must have been obtained as a result of the pretence.
See IKPA vs. STATE (2017) LPELR – 42590 (SC) PP. 44 – 45, PARAS. E-B, F.R.N. vs. AMAH & ANOR (2015) LPELR – 24563 (CA) PP. 25 – 26, PARA. A, ALAKE vs. THE STATE (1991) 7 NWLR (PT. 205) 567 at 591, EDE & ANOR. vs. F.R.N. (2000) LPELR – 5549 (CA) PP. 11 – 13, PARAS. D-B and ONYEKUMNARU vs. FRN (2018) LPELR – 46040 (CA) PP. 35 – 38, PARAS. E-B. While resolving issue one, I had reviewed the evidence of the PW2 to the effect that he had a business relationship with the Appellant and continued doing business with him even after the transaction that was not fully paid for. I had held under issue two that the money said to have been stolen was not physically in existence, therefore incapable of being stolen.
Further, none of the ingredients to prove obtaining property by false pretences was proved against the Appellant by the evidence adduced at the trial Court. The Appellant did not deny the transaction with the PW2 and the fact that he owed him some payments for the goods supplied, he explained the reason why he had not paid up and pleaded for time to pay following subsequent transactions from where he would raise money to pay for the previous goods. The Appellant paid for subsequent transactions where the goods were not faulted.
The PW3 gave evidence admitting that he saw the unsold suitcases in the Appellant’s warehouse. The Appellant also made it clear that he could not sell the suitcases because of the substandard quality, due to poor finishing which the PW2 corrected in the subsequent supply that was sold off and paid for by the Appellant. All these go to show that the Appellant had no intention to defraud the PW2. As rightly submitted by the learned counsel to the Appellant, if the PW2 believed that the Appellant intended to defraud him, he would not have entered into another transaction of supplying another set of suitcases which the Appellant paid for while the Appellant was still owing on the previous supply. Further, under cross-examination (earlier reproduced under issue one), when the PW2 was asked if the Appellant was a fraudster, he answered in the negative and stated that all he wanted was for him to pay the money he owed him, pages 263 – 264 of the printed records of appeal. The evidence adduced at the trial Court shows clearly that the Appellant was consistent that his inability to pay fully for the suitcases was because the goods were substandard, some remained unsold in his warehouse and some of the customers had not paid for the suitcases supplied to them. The PW2 acknowledged the Appellant’s complaint and sent a better quality in the following transaction, which the Appellant sold off and paid for the supply without any complainant. I hold that the essential elements to prove obtaining by false pretence was not proved at the trial Court to warrant the conviction of the Appellant at the lower Court. The third issue is resolved in favour of the Appellant.
In respect of the issue four, having held that the offences of stealing and obtaining by false pretence were not proved against the Appellant at the trial Court, the order of the trial Court that the $222,633 be recovered from the property of the Appellant cannot stand, the said order would only be feasible if the Appellant was rightly convicted of the offences charged at the trial Court, pursuant to Section 11 of the Advance Fee Fraud and Other Related Offences Act, 2006. The above Section provides for restitution by a convict of an offence under the Act. See NNAMUCHI vs. STATE (2015) LPELR – (CA) PP. 32 – 33, PARAS. F-D. The essence of Section 11 of the Act is to restore to a person something that has been stolen or lost, payment for the loss apart from any other penalty that may have already been imposed on the convict. See NWUDE vs. FRN & ORS. (2015) LPELR – 25858 (CA) PP. 30 – 35, PARAS. B-D, BRILA ENERGY LIMITED vs. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43926 (CA) PP. 143 – 147, PARAS. A-E and LAWAL vs. EFCC & ANOR (2020) LPELR – 49590 (CA) 40 – 56, PARAS. E-D. The fourth issue is resolved in favour of the Appellant. In consequence, the order of the trial Court that the sum of $222,633 (Two Hundred and Twenty-Two Thousand, Six Hundred and Thirty Three Dollars) be recovered from the property of the Appellant and paid to the PW2 (Mr. Jin Guoshi) is hereby set aside.
In the final analysis, the appeal succeeds on issue one alone, it is hereby allowed. On the other hand, after considering issues two, three and four on the merits in the alternative, I also allow the appeal for being meritorious. The judgment of the learned trial judge in Charge No. ID/1017C/2014, delivered on 9th January, 2019 is hereby set aside in its entirety. The conviction and sentence of the Appellant is set aside.
The Appellant is hereby discharged and acquitted.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother CHIDI NWAOMA UWA JCA. I fully agree with the reasoning and conclusion therein. I also resolve all the issues identified by the appellant in his favor.
It is significant to note that the objective of the lawmakers in creating a body known as EFCC is highly laudable. In the pursuit of the said objective, EFCC should focus and concentrate on cases where the criminal intent or fraudulent intent of the culprit is glaring. It is the identification and location of the criminal intent that should kick start the body into action. If there is no criminal or fraudulent intent, EFCC would have vacated the place of their assignment, trespassed into foreign land without visa and gone on illegal frolic. The commission of EFCC is activated when there is fraudulent intent or criminal intent in a transaction.
In the instant appeal, the EFCC turned itself into a civil Court. This is wrong. Such an illegal action would rob the EFCC of its integrity and cause the public to take it as an agent of oppression or an instrument willing to be used to settle scores. This should not be allowed to happen.
I also allow this appeal for the above reasons and abide by the consequential orders in the lead judgment.
JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the judgment delivered by my learned brother, Chidi Nwaoma Uwa, JCA. I am in complete agreement with his Lordship that the appeal is meritorious and accordingly allowed.
On a proper review of the evidence before the trial Court there is completely no element of crime in the conduct of the Appellant in the transaction that led to his trial and conviction. The sum of $222,633.00 (two hundred and twenty-two thousand six hundred and thirty-three dollars) on which account the Appellant was tried and convicted was the balance of unpaid proceeds of the goods supplied by the Pw2 to the Appellant for sale. The evidence on record is undisputed that the goods which accounted for the said sum could not be sold for a number of reasons:- (i) That some of the buyers had not yet paid for what was supplied to them, (ii) Some of the goods could not be sold due to their bad quality, and as testified to by Pw3, those goods were found in the ware house of the Appellant. In confirmation of this fact, there was a further transaction between the Appellant and Pw2 in which the quality of the goods were improved upon and sold and the proceeds paid to Pw2 without complaint.
Against the background of these pieces of evidence and undisputed facts, the offence of theft could therefore not be proved. His Lordship’s resolution of issue one cannot therefore be faulted.
His Lordship’s resolutions of issues two, three and four are also unassailable.
It is for these reasons and the fuller deft reasoning contained in the lead judgment that I too allow the appeal and in consequence discharge and acquit the Appellant.
Appellant’s counsel absent. For Appellant(s)
B.O.A. Sonoiki Esq. For Respondent(s)