ONYENWE OJUKWU v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12582(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of January, 2019
CA/E/95C/2017
RATIO
CRIMINAL LAW: INGREDIENTS TO PROVE OBTAINING BY FALSE PRETENCE
“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 CHINWE EUGENIA IYIZOBA, J.C.A.
COURT AND PROCEDURE: POWER TO MAKE ORDER OF RESTITUTION
“In view of these judicial authorities, it is not in doubt that where there is a proper conviction for obtaining property by false pretences, the lower Court is clothed with the requisite powers to make an order of restitution. Contrary to the contention of the Appellant, it is not only money that is contemplated by Section 11 of the Advance Fee Fraud and Other Related Offences Act, 2006. Section 11(1) (a) (ii) recognizes the monetary value of the property.” PER CHINWE EUGENIA IYIZOBA, J.C.A.
JUSTICES
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria
Between
ONYENWE OJUKWU Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Anambra State Idemili Judicial Division, Ogidi delivered on the 14th day of July 2017 Coram Ozoh J. convicting and sentencing the Appellant to a total of 9 years imprisonment for issuing a dud cheque and for obtaining goods by false pretences. A three-count charge was preferred against the Appellant as follows:
COUNT ONE
STATEMENT OF OFFENCE:
Issuance of dud cheque contrary to Section 1 (1) (a) of the Dishonoured Cheques (Offences) Act, Cap D11 Laws of the Federation, 2004 punishable under Section 1 (1) (b) (i) of the same Act.
PARTICULARS OF OFFENCE:
Onyenwe Ojukwu, sometime in December at Ogidi, Anambra State within the jurisdiction of the High Court of Anambra State did issue an EcoBank Cheque number 47298369 dated 6th December, 2012 for the sum of N2,000,000.00 (Two Million Naira Only) to Odilamma Enterprises which when presented for payment within three months was dishonoured on the ground that the account on which the cheque was drawn did not contain sufficient funds and thereby committed an offence.
COUNT TWO
STATEMENT OF OFFENCE:
Issuance of dud cheque contrary to Section 1 (1) (a) of the Dishonoured Cheques(Offences) Act, Cap D11 Laws of the Federation, 2004 punishable under Section 1 (1) (b) (i) of the same Act.
PARTICULARS OF OFFENCE:
Onyenwe Ojukwu, sometime in December at Ogidi, Anambra State within the jurisdiction of the High Court of Anambra State did issue a Eco Bank Cheque number 041927029 dated 14th December, 2012 for the sum of N4,950,000.00 (Four Million Nine hundred and fifty thousand Naira Only) to Odilamma Enterprises which when presented for payment within three months was dishonoured on the ground that the account on which the cheque was drawn did not contain sufficient funds and thereby committed an offence.
COUNT THREE
STATEMENT OF OFFENCE:
Obtaining goods under false pretence contrary to Section 2 of the Advance Fee Fraud and Other Related Offences Act (2006), and punishable under Section 1(3) of the same Act.
PARTICULARS OF OFFENCE:
Onyenwe Ojukwu, sometime in November 2012 at Ogidi, within the jurisdiction of the High Court of Anambra State with, intent to defraud, induced one Messrs Odilamma Enterprises to deliver to you granulated sugar worth Four Million, Nine Hundred and Fifty thousand Naira (N4,950,000.00) by false pretences.
In proof of their case, the Prosecution called five witnesses and tendered 11 Exhibits. The Appellant testified for himself and called no other witness. At the end of the trial, the Appellant was discharged on count two and convicted on Counts one and three and sentenced to two years imprisonment on count one, and seven years on count three.
Dissatisfied with the judgment, the Appellant appealed to this Court by a Notice of Appeal dated the 16th day of August 2017 and filed the same day containing three grounds of appeal out of which the appellant formulated the following issues for determination:
I. Whether from the evidence of parties before the trial Court, the learned trial Court was right in holding that the prosecution successfully proved the basic ingredients of the offence in count III of the charge and accordingly entitled to judgment convicting the appellant to an imprisonment term of 7 years.
II. Whether having regards to Section 11(1) (a) of the Advance Fee Fraud and other Related Offences Act 2006, the learned trial Court was right in ordering the appellant to in addition to his conviction, pay to Odilanma Enterprises the sum of N3,900,000.00 being the outstanding balance of debt owed for 600 bags of granulated sugar supplied to the appellant which the appellant could not fully pay for and which gave rise to the institution of this case.
III. Whether the trial Court was right in holding that the prosecution has successfully proved the basic ingredients of the offence alleged in count I of the charge and consequently entitled to judgment convicting the appellant to 2 years term of imprisonment.
The Respondent on its part formulated two issues for determination as follows:
1. Whether the Respondent proved counts 1 and 3 against the Appellant beyond all reasonable doubts as to warrant conviction and sentence?
2. Whether the lower Court was right in making an order of restitution against the Appellant in favour of the nominal complainant?
I shall adopt the three issues formulated by the Appellant in the determination of this appeal.
ISSUE ONE
I. Whether from the evidence of parties before the trial Court, the learned trial Court was right in holding that the prosecution successfully proved the basic ingredients of the offence in count III of the charge and accordingly entitled to judgment convicting the appellant to an imprisonment term of 7 years.
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant on issue one submitted that by the combined effect of Sections 135 – 139 of the Evidence Act 2011, the burden of proof in criminal matters lies on the prosecution and the standard of proof required is proof beyond all reasonable doubt. Counsel quoted Section 1(1) of the Advance Fee Fraud and Other Related Offences Act, 2006 and submitted that Section 1 Subsections (1) and (2) of the Act presupposes that the prosecution in order to succeed in a charge under the Section must prove and establish the two basic elements of the offence (1) the false pretence and (2) the intent to defraud. Counsel referred to the definition of ‘false pretence’ in Section 20 of the Act and ‘fraudulent intent’ Black’s Law Dictionary, ninth edition and submitted that, there is nowhere in the evidence of parties before the trial Court where it was shown that the Appellant made false representations to Odilanma Enterprises which worked in their mind and induced the supply or delivery of 600 bags of granulated sugar to the Appellant.
Counsel argued that there was no false representation or pretence in the initial transaction or conversation between the parties which induced the supply made to the Appellant on credit; and that the only issue between the parties is that the Appellant failed to fully pay for the goods as promised. He opined that the Appellant cannot be guilty of obtaining goods by false pretence as the basic ingredients of the offence were not established. Counsel set out part of the testimony of PW2, the owner of Odilanma Enterprises to support the fact that there was no transaction or false representations by the Appellant to Odilanma Enterprises or PW2 which can be interpreted to mean fraud or false pretence. Counsel submitted that the evidence before the trial Court shows that the Appellant is not a pretender and did not misrepresent facts as he genuinely deals on bakery materials and owns a shop at the Bakery Materials International Market, Ogidi where the transaction between the parties took place.
Learned counsel citing the cases of BAKARE V. STATE (1987) 3 SCNJ 1; OKHUAROBO V. EGHAREVBA AIGBE (2002) FWLR (PT. 116) 869; OREKPAN & ORS. V. STATE (1991) 11 SCNJ 68; ADEOTI & ORS V. STATE (2009) 8 ACLR 231 submitted that where the trial Court failed to draw the correct inferences and conclusions from the evidence adduced by the parties or deliberately shuts its eyes to defects in the prosecution’s case which are capable of tilting the imaginary scale of justice in favour of the Appellant, that the Appeal Court can intervene and do the right thing. Counsel submitted that the Appellant’s default or inability to fully pay for the goods supplied to him on credit as promised does not automatically translate into a criminal offence of obtaining goods by false pretence as contemplated under the Act. He submitted that the remedy available to the complainant in the circumstances was a civil suit rather than criminal prosecution. Counsel urged the Court to resolve issue 1 in favour of the Appellant.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent on this issue quoted the relevant Sections of the Advance Fee Fraud Act, 2006, the definition of False Pretence in Section 20 of the same Act, the case of FRN V. HELEN BANKE LAOYE (2007-2011) ECLR VOL. 2 @ 69 which set out the ingredients of the offence and submitted that from the evidence of PW1 and PW2, it was clear that goods were supplied to the Appellant on the pretence that he would pay in 10 days. The false pretence, counsel argued resulted from his failure to pay as promised when his two cheques were returned due to lack of funds. Learned counsel for the Respondent submitted:
‘Counsel cannot argue that there is no false pretence because Defendant/Appellant promised to pay within 10 days of the delivery of the goods to him. Based on that promise, the goods were delivered to him and he issued a cheque of N4,950,000.00 to back up his claim. He failed to pay within the said 10 days. The N4, 950,000.00 cheque was also returned unpaid. Therein lies the false pretence.’
RESOLUTION OF ISSUE ONE:
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 Subsection (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 Subsections (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.
Count three and its particulars read thus:
Obtaining goods under false pretence contrary to Section 2 of the Advance Fee Fraud and Other Related Offences Act (2006), and punishable under Section 1(3) of the same Act.
Onyenwe Ojukwu, sometime in November 2012 at Ogidi, within the jurisdiction of the High Court of Anambra State with, intent to defraud, induced one Messr Odilamma Enterprises to deliver to you granulated sugar worth Four Million, Nine Hundred and Fifty thousand Naira (N4,950,000.00) by false pretences.
The question now is whether the prosecution or the Respondent succeeded in establishing the ingredients of the above count. Learned counsel for the Appellant had submitted that in the evidence of the parties before the trial Court it was not shown that the Appellant made false representations to Odilanma Enterprises which worked in their mind and induced the supply or delivery of 600 bags of granulated sugar. I agree with this submission. Indeed there was no interaction of any kind between the Appellant and Odilanma Enterprises before the supply of the sugar. The evidence disclosed that the idea of supplying sugar to the Appellant emanated from Okonkwo Chinonye PW1. PW2, Amechi Odilanma at page 157 of the Record testified thus:
I am a business man and I deal in baking material. I know him (Appellant) because of this case. I don’t know him before, sometime on 30th of November, 2012 the PW1 asked me to release a trailer load of sugar that he is going to give it to somebody. I asked him who is the person and he said that I may not know the person but he knows the person very well…
PW1 on his part testified at page 153 as follows:
I am a staff of Bua Sugar Refinery Ltd. I have been working with Bua Sugar Refinery Ltd since 2009 till date. I was formerly the Assistant Manager and presently I am the Regional Manager (East). I know the defendant. I know him as a dealer in sugar and bakery materials at Ogidi Market. Sometime around 30th November, 2012, I supplied him with trailer load of sugar (about 600 bags) worth N4, 950,000.00 (Four Million, Nine Hundred and Fifty Thousand Naira.
It is clear from the evidence of PW1 and PW2 above that no representation was made to Odilanma Enterprises or any other person by the Appellant before the supply of the sugar. PW1 for reasons best known to him and not disclosed in the evidence (apart from the claim of the Appellant in his statement to EFCC that PW1 who was his friend wanted to help revive his dwindling business) undertook to talk to Odilanma Enterprises to release the sugar to him (PW1) for supply to the Appellant on credit. The facts were clear to both PW1 and PW2 that the Appellant did not have the money to pay at the time of the supply. There was no false representation or pretence in the initial transaction or conversation between the parties which induced the supply made to the Appellant on credit. The evidence led is that the Appellant promised to pay for the sugar in ten days time and actually issued a post dated cheque of N4.95 million as collateral that he will pay for the sugar. There is no evidence to show that at the time he made the promise to pay in ten days time that he had no intention of paying for the sugar. None of the ingredients of the offence of obtaining goods by false pretence is present here. There was no evidence of any false pretence emanating from the Appellant. It is true that the Appellant did not keep his promise to pay for the sugar in days’ time.
The Respondent’s contention that the failure to pay within the ten days constituted the false pretence is misconceived. There is no evidence that it was the promise to pay in ten days that induced Odilanma Enterprises to part with the sugar and there was no evidence that at the time he promised to pay in ten days, the appellant fraudulently never intended to pay for the sugar. At page 157 of the Record, PW2 further testified:
‘I asked him when the person said he will pay when the sugar is released to him. He said that the person said he will pay in the next ten days after the supply. I called my agent in Lagos to release the sugar to PW1 for him to give to the person he is negotiating with’.
It is clear that the person PW1 negotiated with for the supply of the sugar to the Appellant is PW2, Amechi Odilanma and not Odilanma Enterprises. How then can the Appellant be charged with inducing one Messr Odilamma Enterprises to deliver to him granulated sugar worth N4, 950,000.00 by false pretences. From the evidence of PW1 and PW2 there was no transaction or false representations by the Appellant to Odilanma Enterprises. The evidence before the trial Court shows that the Appellant did not misrepresent facts. He deals on bakery materials and owns a shop at the Bakery Materials International Market, Ogidi where the transaction between the parties took place. Indeed apart from the payment of money into the account of Odilanma Enterprises, which was apparently directed by PW1, nothing happened between Odilanma Enterprises, a non juristic person and the Appellant to warrant the charge of obtaining by false pretence from the Enterprise preferred against the Appellant. No evidence was led by the prosecution regarding the nature of the negotiations between the Appellant and PW1 on the basis of which PW1 approached PW2 for the supply of the sugar to him for the Appellant. The business is actually between PW1 and the Appellant. The Appellant had nothing to do with PW2 or Odilanma Enterprises. The failure of the Appellant to pay in full for the goods supplied to him by PW1 is a matter between PW1 and the Appellant. I agree with learned counsel for the Appellant that the trial Court erred when it held at page 192 of the Record as follows:
‘There is evidence before me that the defendant induced PW1 to guarantee the supply of the trailer load of sugar valued at N4,950,000.00 by Odilanma Enterprises under false pretence that he will pay for same within 10 days when defendant knew he will not pay same. He sold the trailer load of sugar and he did not pay the PW2 as he represented that he will pay. The representation of the defendant worked in the minds of PW1 and PW2. Defendant made the representation to dupe PW1 and PW2. He issued Exhibits E and F knowing fully well that he has no funds to cover them. I am of the firm view that the prosecution has proved the ingredients of the offence in count III and I so hold. Defendant is therefore guilty of the offence in count iii.’
There was no evidence to support the above findings. I agree with learned counsel for the Appellant that the findings and conclusion are perverse as they were not based on credible evidence adduced at the trial. Absence of intention to defraud is further provided by the fact that on the return of the cheque of N2m, the Appellant paid into the account of Odilanma Enterprises the sum of N850, 000.00 towards liquidation of the debt. I agree with the Appellant that his inability to pay in full for the goods supplied to him on credit cannot translate into the criminal offence of obtaining goods by false pretences under the Act. I have no doubt whatsoever that the trial Court erred in holding that the prosecution proved the essential ingredients of the offence of obtaining by false pretences in count III and in convicting and sentencing the appellant to 7 years imprisonment. Issue one is resolved in favour of the Appellant and against the Respondent.
ISSUE TWO
Whether having regards to Section 11(1) (a) of the Advance Fee Fraud and other Related Offences Act 2006, the learned trial Court was right in ordering the appellant to in addition to his conviction, pay to Odilanma Enterprises the sum of N3,900,000.00 being the outstanding balance of debt owed for 600 bags of granulated sugar supplied to the appellant which the appellant could not fully pay for and which gave rise to the institution of this case.
Learned counsel for the Appellant on this issue set out the provisions of Section 11 of the Advance Fee Fraud and Other Related Offences Act 2006. Counsel submitted that the trial Court relying on the said Section 11 and the case of UZOKA V. FRN (2010) 2 NWLR (PT. 1177) @ 118 – 134 ordered the Appellant to pay to Odilanma Enterprises the sum of N3,900,000.00 (Three Million Nine Hundred Thousand Naira) being the outstanding balance of debt owed for the goods supplied to him on credit.
The contention of the Appellant is that the subject matter of the alleged fraud is ‘goods’ to wit; ‘600 bags of granulated sugar’ and not money. Counsel argued that since the substance of the alleged fraud is property (600 bags of granulated sugar) the concept of restitution cannot be invoked having regards to the fact that ‘money’ was not the subject matter of the fraud being alleged. He further submitted that the order for ‘restitution’ erroneously made by the trial Court against the Appellant in addition to his conviction for various terms of imprisonment is in contravention of the principle of double jeopardy as enshrined in Section 36(9) and (10) of the 1999 Constitution (as amended) which is a safeguard against double punishment and ordeal at the instance of the prosecution. He called in aid the cases of STATE V. DUKE & ANOR (2003) FWLR (PT. 171) 1654) @ 1686 CA AND ALHAJI UMAR V. GOVERNOR OF KANO STATE & ORS (2006) ALL FWLR (PT. 322) 1516 @ 1539, 40.
Counsel urged the Court to resolve issue two in favour of the appellant.
RESPONDENT’S ARGUMENTS:
After also setting out the provisions of Section 11 of the Advance Fee Fraud and Other Related Offences Act 2006, learned counsel for the Respondent submitted that the Appellant having been found guilty, convicted and sentenced appropriately, the justice of the case demanded that appropriate compensation be made to the injured victim and nominal complainant who testified as PW2. Counsel argued that having been found guilty of obtaining the total sum of N4,950,000.00 from PW2 by false pretence, it is only fair and just that PW2 be compensated and restituted.
Citing the cases of FRIDAY DAVID V. FRN (2018) LPELR 43677 (CA) AND SAHEED RAJI V. STATE (2012) LPELR 7968 (CA) counsel submitted that the lower Court is clothed with the requisite powers to make an order of restitution in this case and urged the Court to so hold.
RESOLUTION OF ISSUE TWO:
Section 11 of the Advance Fee Fraud and Other Related Offences Act 2006 provides as follows:
11(1) In addition to any other penalty prescribed under this Act, the High Court shall order a person convicted of an offence under this Act to make restitution to the victim of the false pretence or fraud by directing that person.
(a)Where the property involved is money, to pay to the victim an equivalent to the loss sustained by the victim; in any other case.
i. to return the property to the victim or to a person designated by him; or
ii. to pay an amount equal to the value of the property, where the return of the property is impossible or impracticable.
3. An order of restitution may be enforced by the victim or by the prosecutor on behalf of the victim in the same manner as a judgment in a civil action.
In the case of FRIDAY DAVID V. FRN (2018) LPELR 43677 (CA) cited by the Respondent, this Court held:
‘It seems to me that the essence of the order of restitution is not a punishment, it is rather to ensure social justice and to act as a deterrent by ensuring that a criminal is not allowed to enjoy the proceed of his crime in total disregard to the fate of the victim.’
In Saheed Raji v. State (2012) LPELR 7968 (CA), also cited by the Respondent, this Court held:
‘An intimate reading of the prescription of Section 11 of the Act clearly shows that it had donated extra plenitude of power to the lower Court to make an order of restitution, an act of giving back to a person something that was lost or stolen, or paying him money for the loss, apart from any other punishment or penalty it may have imposed on a convict. I have situated the said provision with the order of restitution made by the lower Court. It seems clear to me that the order is, wholly, in accord with the additional power allotted to it by the provision. In other words, the order fits squarely into the ambit of the provision. I am on the same wave length with the Respondent’s contention that the lower Court had no modicum of discretion in the matter because the provision deployed the word, ‘shall’ which, in the eyes of the law, imports compulsion and mandatory obligations.’
In view of these judicial authorities, it is not in doubt that where there is a proper conviction for obtaining property by false pretences, the lower Court is clothed with the requisite powers to make an order of restitution. Contrary to the contention of the Appellant, it is not only money that is contemplated by Section 11 of the Advance Fee Fraud and Other Related Offences Act, 2006. Section 11(1) (a) (ii) recognizes the monetary value of the property.
However, in the instant appeal, having held that the Appellant was wrongly convicted under Count three; obtaining goods by false pretences as the ingredients of the offence were not established, it follows that the order of restitution cannot stand. Issue two is resolved in favour of the Appellant and against the Respondent.
ISSUE THREE:
Whether the trial Court was right in holding that the prosecution has successfully proved the basic ingredients of the offence alleged in count 1 of the charge and consequently entitled to judgment convicting the appellant to 2 years term of imprisonment.
APPELLANT’S ARGUMENTS:
Learned counsel for the Appellant on issue three relying on the case of ABEKE V. STATE (2007) ALL FWLR (PT. 366) OR (2007) 9 NWLR (PT. 104) AT 411 submitted that there are basic ingredients which the prosecution must prove and establish in order to succeed in an offence of issuance of dud cheque under count 1. The ingredients are:
a. That the defendant obtained or induced the delivery of anything capable of being stolen to himself or any other person by means of a cheque.
b. That the defendant obtained credit for himself or any other person by means of a cheque.
c. That the cheque was dishonoured on presentation on account of lack of funds or insufficient funds in the account of the drawer in the bank on which the cheque was drawn.
d. That the cheque was presented not later than three months after its issue.
e. That the cheque was not countermanded by the drawer before its presentation.
f. That the drawer has no reasonable belief that he has sufficient money in the bank.
Counsel submitted that the evidence before the trial Court showed that Exhibit F the cheque of N2 million was presented to the bank in error by the Appellant’s younger brother Emeka Ojukwu who was unfortunately not investigated nor called as a witness by the Prosecution to deny the Appellant’s claim. Counsel submitted that the law is settled that it is the duty of the prosecution to establish beyond all reasonable doubt the guilt of the accused person and not for the accused to establish his innocence.
He opined that the prosecution having failed to investigate the Appellant’s claim regarding the presentation of Exhibit F cannot be said to have proved its case beyond all reasonable doubt. Counsel set out the provisions of Section 1(i) (a) & (b) of the Dishonoured Cheques Offences Act DII LFN 2004 and submitted that the prosecution need not only show that Exhibit F was issued, presented and dishonoured by the bank but must prove that the appellant obtained or induced the delivery of anything capable of being stolen either to himself or to any other person; or otherwise obtained credit for himself or any other person by means of the said cheque such that when presented for payment not later than three months after the date of the cheque, it was dishonoured on the grounds of insufficiency of funds.
Counsel submitted that it is not sufficient to establish the commission of the offence that a cheque is presented and dishonored by the bank on account of insufficiency of funds. He opined that the prosecution must further show that the accused induced delivery to himself or obtained credit from the complainant by means of the said cheque with intention to defraud such that when presented to the bank it was dishonored. Counsel submitted that the evidence led did not show that Exhibit F was the instrument used by the Appellant to obtain credit from Odilanma Enterprises as there was never any conversation ab initio between the Appellant and Odilanma enterprises prior to the supply of the 600 bags of sugar.
Counsel submitted that the trial Court in arriving at the decision that the prosecution has successfully proved the basic ingredients of the offence alleged in count 1 failed to consider the absence of the following material facts in the prosecution’s case:
i. That the appellant obtained or induced delivery of the 600 bags of granulated sugar supplied to him by means of the cheque of N2million to wit ‘Exhibit F’.
ii. That the appellant obtained credit for himself by means of the cheque of N2million to wit Exhibit F which was dishonoured.
iii. That the appellant did not countermand the cheque of N2million before it was presented to the bank. (Emeka Ojukwu having not been invited by the prosecution or called as a witness to testify)
iv. That the appellant had no reasonable belief that he had sufficient money in the bank.
Counsel urged the Court to resolve issue three in favour of the appellant; to allow the appeal and to set aside the judgment and conviction of the Appellant.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent on this issue submitted that the ingredients of the offence in count one, issuing dud cheque are as stated in BOLANLE ABEKE V. STATE (2007) ALL FWLR (PT. 366) and restated in HANNAH ABRAHAM V. FRN (2018) LPELR 44136 (CA) that;
i. The person obtains credit for himself or any other person by means of a cheque.
ii. The cheque was presented for payment within three months from the date of issuance.
iii. Upon presentation of the cheque, it was dishonoured on the grounds of insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn.
With respect to the first ingredient, counsel submitted that the Appellant obtained credit for himself when, PW1 supplied him 600 bags of sugar worth N4,950,000.00 belonging to PW2 and he promised to pay within 10 days.
On the second ingredient, counsel submitted that the cheque of N2,000,000.00 was dated 6th December, 2012 and was presented for payment within 3 months from the date of issue.
The cheque was returned unpaid owing to insufficient funds as testified to by PW3 and PW5; thereby satisfying the third ingredient. Counsel urged us to affirm the conviction of the appellant in count I and to resolve this issue in favour of the Respondent.
RESOLUTION OF ISSUE THREE:
The offence the Appellant was convicted of in count I of the amended information is issuance of dud cheque contrary to Section 1(1) (a) of the Dishonoured cheques (Offences) Act Cap DII Laws of the Federation 2004 and punishable under Section 1 (1) (b) (i) of the same Act. The relevant parts of the Act provide as follows:
(1) Any person who-
(a) obtains or induces the delivery of anything capable of being stolen either to himself or to any other person; or
(b) obtains credit for himself or any other person, by means of a cheque that, when presented for payment not later than three months after the date of the cheque, is dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn, shall be guilty of an offence and on conviction shall- (i) in the case of an individual be sentenced to imprisonment for two years, without the option of a fine; and (ii) in the case of a body corporate, be sentenced to a fine of not less than N5,000.
(2) For the purposes of Subsection (1) of this Section-
(a) the reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property;
(b) a person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shall be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into, the manner in which the obligation would be settled was not specified.
(3) A person shall not be guilty of an offence under this section if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in Subsection (1) of this Section.
The above provisions were considered by the Supreme Court in the case of ABEKE V. STATE (2007) ALL FWLR (PT. 366) OR (2007) 9 NWLR (PT. 104) AT 411 where Onnoghen JSC (as he then was) in his contribution observed:
‘From the above, the duty on the prosecution is to prove:-
(a) That appellant obtained credit by herself
(b) That the cheque was presented within three months of the date thereon: and
(c) That on presentation the cheque was dishonoured on the ground that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn.”
Therefore to succeed, the Prosecution must prove:
1. That the Appellant obtained delivery of anything capable of being stolen to himself by means of a cheque.
The Appellant herein obtained delivery to himself by PW1 of 600 bags of granulated sugar property of Odilanma Enterprises promising to pay for the goods in 10 days. To that end he issued and paid into the account of Odilanma Enterprises a cheque of N2m towards liquidation of the debt. The Appellant clearly obtained delivery of the bags of sugar which are capable of being stolen by means of the cheque issued in part payment. Appellant?s contention that the prosecution must prove a direct link between him and Odilanma Enterprises for the supply of the goods resulting in the issue of the N2m cheque is with respect misconceived. It is also a misconception to talk about proof of intention to defraud as there is no such requirement in the law. I am of the firm view that the above first element of the offence is satisfied.
2. That the cheque was presented within three months of the date thereon:
From the evidence adduced at the trial Court, the cheque of N2m was dated 6th December 2012 and was presented for payment on 7/12/12, clearly within three months of the date thereon. In one of the Appellant?s statements to EFCC on 26/4/13, he stated:
‘Sometime in December 2013 before I traveled to Lagos to source some money to make part payment of the money I am owing the complainant, I wrote a cheque dated 6th December, 2012 for the sum of Two Million Naira (2,000,000.00) only and gave it to my brother to present to them on the said date’
Appellant’s evidence in chief as DW1 that he did not put any date on the cheque and that he told PW1 to call him before putting in the cheque for payment is an afterthought. The learned trial Judge was right when he concluded thus:
“It is then beyond question that Defendant issued the cheque for N2,000 000.00 to Odilanma Enterprises, dated same and paid same into the account of Odilanma Enterprises knowing fully well that he has no sufficient funds to cover same. It is also beyond question that the said cheque was issued as part payment for the trailer load of granulated sugar delivered to the Defendant. The said cheque was returned unpaid and was presented on 7/12/12 when it was issued on the 6/12/12.”
The second element of the offence was satisfied.
3. That on presentation the cheque was dishonoured on the ground that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn.
There is abundant proof from the evidence led that the cheque of N2M was dishonoured because there was insufficient funds standing to the credit of the Appellant when the cheque was presented to the knowledge of the Appellant. PW3, one Edith Eze, a staff of the Appellant’s bank. Ecobank Nig Ltd testified and tendered the Statement of account of the Appellant Exhibit B covering the relevant period which showed that the Appellant did not have the funds to cover the cheque of N2m. In the Appellant’s statements to EFCC on 26/4/13, he stated:
I called my brother Emeka Ojukwu at about 12.00 pm not to present the cheque in the bank but to my greatest surprise before my call, my brother had already presented the cheque before my call and it was returned because there was no money in my account.
Again in his evidence in chief at the trial at page 177 of the Record, the appellant somersaulted from his statement to EFCC claiming that an undated cheque was given to PW1 who was instructed to clear with him before presenting the cheque for payment. It is now evident from the submissions of counsel in this appeal that it was all fabricated to escape justice.
The Appellant tried to hide under the trite law that the burden lies on the prosecution to prove its case beyond all reasonable doubt; he thought that having raised the point that the cheque of N2 million was presented to the bank in error by his younger brother Emeka Ojukwu, the burden lay on the prosecution to debunk the claim by investigating the claim and calling as a witness the said Emeka Ojukwu. The appellant and his learned counsel forgot that the obligation on the prosecution is to prove beyond reasonable doubt the ingredients of the charge (1) that the Appellant obtained delivery to himself of something capable of being stolen by means of a cheque; (2) that the cheque was presented within three months of the date thereon, (3) That on presentation the cheque was dishonoured on the ground that there was no sufficient funds or insufficient funds standing to the credit of the drawer of the cheque in the bank on which the cheque was drawn; to the knowledge of the drawer.
If there is anything to remove the case of the Appellant from any of these already established facts, the evidential burden is on him to adduce such facts and to establish them to the satisfaction of the Court before the evidential burden could again shift to the prosecution. The Appellant failed to do this. Besides his claim was already completely undermined by his evidence at the trial that the undated cheque was given to PW1 who presented it for payment without clearance from him. The Appellant failed to adduce any iota of evidence that when he issued the cheque he had reasonable grounds for believing that it would be honoured if presented for payment. His argument that he was expecting payment from some of his customers was not even raised in his evidence in chief. There really was no saving grace for the Appellant on this Count. The learned trial judge was right in convicting him on Count 1. Issue 3 is resolved in favour of the Respondent and against the Appellant.
In the final result, this appeal succeeds in part and is allowed in part. The judgment of the High Court of Anambra State Idemili Judicial Division in Charge No HID/58C/2013 delivered on 14/7/17 convicting the Appellant on count 1 issuing dud cheque contrary to Section 1(1) (a) of the Dishonoured Cheques (Offences) Act Cap D11 Laws the Federation 2004 and sentencing him to 2 years imprisonment is affirmed. The conviction of the Appellant on count 3 obtaining goods under false pretence contrary to Section 2 of the Advance Fee Fraud and Other Related Offences Act (2006), and sentencing him to 7 years imprisonment as well as the order to pay to Odilanma Enterprises the sum of N3,900 000.00 for the sugar supplied to him are hereby set aside. The Appellant is discharged and acquitted on count 3.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I had the privilege of reading in draft the lead judgment of my learned brother, CHINWE EUGENIA IYIZOBA, JCA. I agree with his lordship’s reasoning and conclusion that the appeal succeeds in respect of count three (3). The appeal fails in respect of count 1.
The appellant could have waited until he returned from Lagos where he said he went to look for money to pay for the goods delivered to him before issuing a cheque for the sum of N2m Naira which was dishonored upon presentation for payment for lack of insufficient funds in his account. Having issued the cheque when he knew he had no money in his account, he has to face the consequence. The appeal fails in respect of count 1. I abide by the consequential orders made therein.
ABUBAKAR SADIQ UMAR, J.C.A.: I have had the privilege of reading Judgment prepared by my learned brother Chinwe Eugenia Iyizoba, JCA. I am in complete agreement with his Lordship’s conclusions in the appeal which I adopt as mine. I allow the appeal in part.
Appearances:
Leonard T. Adeh, Esq. with him, B.O. Anajeke, Esq.For Appellant(s)
M.A. Shehu, Esq. (Principal Detective Superintendent, EFCC)For Respondent(s)
