REV. VICTOR MUKORO v. FEDERAL REPUBLIC OF NIGERIA
(2015)LCN/7776(CA)
In The Court of Appeal of Nigeria
On Friday, the 6th day of February, 2015
CA/B/387C/2010
RATIO
CRIMINAL LAW; THE OFFENCE OF OBTAINING BY FALSE PRETENCE; THE PROVISION OF THE LAW ON THE OFFENCE OF OBTAINING BY FALSE PRETENCE
Now, Section 1 (1) (a) of the Act provides as follows:-
1. Notwithstanding anything contained in any other enactment of law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person in Nigeria or in any other county for himself or any other person….. commits an offence under this Act.”
False pretence is defined in Section 20 of the Act as:
” ‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
CRIMINAL LAW: THE OFFENCE OF OBTAINING BY FALSE PRETENCE; THE INGREDIENT THAT ARE REQUIRED TO BE PROVED TO ESTABLISH THE OFFENCE OF OBTAINING BY FALSE PRETENCE
Now, for the offence of obtaining by false pretences to be committed it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence. It is hornbook law that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretences are:
1. That there was a pretence.
2. That the pretence emanated from the accused person
3. That the pretence was false.
4. That the accused person knew of the falsity of the pretence or did not believe in its truth.
5. That there was an intention to defraud.
6. That the property or thing is capable of being stolen.
7. That the accused person induced the owner to transfer his whole interest in the property. See ALAKE vs. THE STATE (1991) 7 NWLR (PT 205) 567 at 591, ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 55 and ODIAWA vs. FRN (2008) ALL FWLR (PT.439) 436. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF A TRIAL COURT WHERE THE FINDINGS ARE NOT PERVERSE
It is trite law that where the findings made in a case are supported by the evidence believed by the trial court, an appellate Court will be loath to interfere with such findings unless they are evidently perverse: IGBI vs. THE STATE (2000) LPELR (1444) 1 at 15. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
PRACTICE AND PROCEDURE: CALLING OF WITNESSES; WHETHER THERE THE PROSECUTION IS EXPECTED TO CALL A HOST OF WITNESSES
The law seems to be settled beyond peradventure that there is no obligation on the prosecution to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter as to who to call. See ADAJE vs. THE STATE (1979) 6-9 SC 18 at 28. If the Appellant considered the PW1’s husband a vital witness, then he should have called him. The Appellant should not expect the prosecution to call him when nothing stopped the Appellant from calling him: NWAEZE vs. THE STATE (1996) 2 NWLR (PT 425) 1 at 15 C-D, ASARIYU vs. THE STATE (1987) 4 NWLR (PT.57) 709, OGBODU vs. THE STATE (1987) 2 NWLR (PT.54) 20 and EZE vs. THE STATE (2013) LPELR 1 at 29. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
REV. VICTOR MUKORO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Delta State, Coram: T. O. Diai, Judge, delivered on 29th July 2009 in Charge No.A/40C/2007. In the said judgment the Lower Court convicted the Appellant on the one count charge on which he was tried and sentenced him to ten years imprisonment without option of fine.
The brief background facts as made out by the prosecution at the trial disclose that the Appellant represented to the PW1 that his (Appellant’s) younger brother who was married to an Italian assists people to secure visa to go to Italy where jobs and accommodation are provided for them. On account of this the PWI gave the Appellant the names of two relations who would be sent to Italy and further gave the Appellant the moneys he demanded for the purpose. To cut the long story short, notwithstanding the moneys which the Appellant demanded and which were given to him, the Appellant failed to deliver on the representation which he made to the PW1. Subsequently, the Appellant represented to the PW1 that he had a sister in Spain who he had spoken to and who promised to help get a Spanish visa for somebody the PW1 brings. The PW1 then requested that the Spanish visa be obtained for her son, the PW2. Once again the PW1 parted with moneys as demanded by the Appellant. The visa and travel documents to Spain were not obtained, rather spurious travel documents were produced by the Appellant, which the PW1 rejected. The PW1 was later called by the Appellant’s sister who resides in Spain and who dissociated herself from the actions of the Appellant.
The case made out by the Appellant is that the PW1’s husband asked him to help buy tickets for two persons travelling to New York and that he travelled to Lagos where he bought the tickets after the PW1’s husband had paid the money for the ticket into his account. The Appellant denied the version of the story narrated by the Prosecution, maintaining that he only assisted the PW1 and her husband to buy tickets.
The one count charge on which the Appellant was arraigned, tried and convicted reads:
“CHARGE
That you Rev. Victor Mukoro between the month of May and June 2007 in Asaba within the Judicial Division of State High Court Asaba, Delta State, by false pretence and with intent to defraud did obtain the sum of N4.5 Million from one Pastor, Mrs. R. O. Onovughakpor and thereby committed an offence contrary to Section 1 (1) (a) and punishable under Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act No. 13 of 1995 as Amended.”
The Appellant being dissatisfied with the judgment of the Lower Court which is at pages 54 – 63 of the Records appealed against the said judgment. The Notice of Appeal is at pages 65 – 88 of the Records. The Records of Appeal having been complied and transmitted, the appeal was entered on 9th November, 2010. Thereafter the parties filed and exchanged briefs of argument. The Appellant’s Brief is dated 1st December, 2010 but filed on 21st December, 2010. The Respondent’s Brief is dated 14th October 2013 and filed on 18th October, 2013.
At the hearing of the appeal S. I. Dumbili, Esq., Learned counsel for the Appellant adopted and relied on the submissions in the Appellant’s Brief of Argument. He formally abandoned issue number 5 distilled in the said brief and he urged the court to allow the appeal. The said Issue number 5 having been abandoned is hereby struck out and would play no further part in the consideration and determination of this appeal.
Equally, the learned Counsel for the Respondent, Mrs. Chioma Onuegbu, Assistant Director of Public Prosecutions, Federal Ministry of Justice, adopted the submissions in the Respondent’s Brief of Argument and she urged the court to dismiss the appeal and affirm the judgment of the Lower Court.
Shorn of Issue number 5 which the Appellant abandoned there are a total of nine surviving issues distilled for determination in the Appellant’s brief as follows:
“1. Whether in view of the evidence wrongly admitted by the Trial Court’s Verdict of the 29th day of July, 2009; as well as the evidence wrongly excluded by the Trial Court from the Charge Number A/40C12007 thereto – there is sufficient lawful evidence to support the Verdict against the Appellant/Accused Person?
2. Does it appear from the Record of the Charge Number A/4OC/2007 as a whole – that the Trial Court’s Verdict of 29th day of July 2009 warned itself that PW.1’s accomplice and uncorroborated evidence was received, such that it is in breach of the statutory requirement thereto; and any of the testimonies of PW.2, PW.3, Exhibits A, B C and E lawfully be such corroborative evidence statutorily required under Section 14 of the Advanced Fee Fraud and Other Related Offences Act, No. 13 of 1995 (as Amended)?
3. Can the Verdict of the Trial Court of the 29th day of July, 2009 convicting the Appellant/Accused-Person upon wrong standards of proof of the facts – such as to foist the burden of proving his innocence in the Charge Number A/40C/2007 on the Appellant/Accused-Person – be a rightly evaluated standard and an actual implementation of the requirement of proof beyond reasonable doubt?
4. Whether the Trial Court’s Verdict of the 29th day of July, 2009 (without giving itself direction as to the possibility of every available Defence in favour of the Appellant/Accused-Person where some evidence exists in that behalf on the Record) has – evaluated the evidence properly of put the Defence sufficiently and adequately to its mind – in a manner that has not denied the Appellant/Accused-Person of a fair trial on the Charge Number A/40C/2007?
6. Should the material irregularities which went to the root of the case and occurred in the course of the trial of the Charge Number A/40C/2007 not have been acknowledged vide resolution in the Trial Court’s verdict of the 29th day of July, 2009, one way or the other, especially denouncing the variation of Exhibit E by the oral testimonies of PW.1 and PW.3?
7. Whether the only substantiated transaction on the Record of the Trial Court in the Charge Number A/40C/2007 was nothing more that promises or declarations of intention to do something in the future and for which the Appellant/Accused – Person should not have been found liable vide the Verdict of the 29th day of July, 2009 under the Advanced Fee Fraud and Other Related Offences Act, No. 13 of 1995 (as Amended)?
8. Whether in view of the fact that the offence charged in the Charge Number A/40C/2007 involves mens rea, the Trial Court’s Verdict of the 29th day of July, 2009 can elect to disregard the ‘best evidence’ of actual and real proof vide Exhibits A, B, C and E in preference of inferences from the irrational circumstantial evidence of PW.1 and PW.3 – irrespective of being riddled with reasonable doubt and non-implicating evidence against the Appellant/Accused – Person?
9. Whether the ingredients of the offence within the provisions of Section 1(1) (a) (3) of the Advanced Fee Fraud and Other Related Offences Act, No. 13 of 1995 (as Amended) have been veritably and lawfully proved by the Prosecution before the Trial Court on the Record of the Charge Number A/40C/2007 such that the Verdict of Conviction, Sentence and Restitution of the 29th day of July, 2009 against the Appellant/Accused – Person is with legitimate merit?
10. Whether in view of the inferences drawn by the Verdict of the 29th day of July 2009 which cannot be supported having regard to the primary facts found; as well as the conflicting evidence adduced but which were not construed in favour of the Appellant/Accused-Person; not proper consideration given to important contradictions in the evidence of witnesses for the Prosecution – the Trial Court properly, reasonably and satisfactorily evaluated the evidence on the Charge Number A/40C/2007?
The Respondent distilled two issues for determination, namely:
“1. Whether from the totality of the evidence the prosecution proved its case beyond reasonable doubt.
2. Whether the trial court did not consider the evidence of the defence before convicting him.”
It will be stating the obvious to asseverate that the issues for determination as distilled by the Appellant are unwieldy, verbose, windy and argumentative. The obfuscatory nature of the issues are such that I agree with the Respondent’s position in paragraph 4.04 of the Respondent’s Brief that the issues for determination and submissions of the Appellant are vague. It seems to me that issues distilled for determination ought to be pungent in order to be imbued with the requisite zest, power and fluency.
The formulation of issues for determination in an appeal have to be done with the primary aim of narrowing the issue or issues in controversy in the interest of accuracy, clarity and brevity. The duty on the prosecution in a criminal trial is to prove the charge against the accused person beyond reasonable doubt. The duty and burden on the prosecution pervades all issues that arise in a criminal trial. Consequently it seems to me that the issues for determination distilled by the Respondent are apt, clear and precise.
Howbeit, I would take the liberty to tinker with the said issues as issue number two can be subsumed under issue number one as a consideration of a “totality of the evidence” under issue number one involves a consideration of the “evidence of the defence” under issue number two. Accordingly, the distensible issue on the basis of which I would consider the submissions of learned counsel and resolve this appeal is:
Whether the Lower Court rightly held that from the totality of the evidence adduced the prosecution proved its case beyond reasonable doubt.
SUBMISSIONS OF THE APPELLANT
The Appellant submits that the Lower Court wrongly admitted evidence and wrongly excluded evidence and that the decision of the Lower Court, cannot be supported having regard to the lawful evidence, such that it was unsafe to convict. The cases OWOYIN vs. OMOTOSHO (1961) 1 All NLR 304, ONWUNEME vs. ACB (1997) 12 NWLR (PT.531) 150 at 159, ABADOM vs. STATE (1997) 1 NWLR (PT.479) 1 at 34 and KOFI vs. R (1955) 14 WACA 648 among others were relied upon.
The Appellant posited that the Lower Court ought to have treated the PW1 as an accomplice or tainted witness and ought to have warned itself that it was unsafe to convict solely on the evidence of the PW1 evidence and therefore seek corroborative evidence as required under Section 14 of the Advance Fee Fraud and Other Related Offences Act No. 13 of 1995 (as amended). It was consequently opined that the effect of the omission to give the warning occasioned a miscarriage of justice. The cases of IDAHOSA vs. THE QUEEN (1965) 1 NWLR 85 at 87, ISHOLA vs. THE STATE (1978) 11 NSCC 499 at 505 – 506, AMADI vs. THE STATE (1993) 8 NWLR (PT 314) 644 at 661, BELLO vs. THE STATE (1996) 4 NSCC 268 at 273, MBENU vs. THE STATE (1988) 3 NWLR (PT 84) 615 and ADETOLA vs. THE STATE (1992) 4 NWLR 267 at 273 among several other cases were referred to.
The Appellant contended that the Prosecution did not prove the charge beyond reasonable doubt as all the ingredients of the offence under S.1(1) (a) of the Advance Fee Fraud and Other Related Offences Act were not proved. The Appellant asserted that the Lower Court wrongly placed the burden of proof on him since the doubts in the case of the prosecution ought to have been resolved in his favour. The cases of AMADI vs. THE STATE (supra), ENOGA vs. THE STATE (1997) 1 NWLR (PT.483) 615 at 622, IBRAHIM vs. THE STATE (1995) 3 NWLR (PT 381) 35 at 47 and OFORLETE vs THE STATE (2000) 12 NWLR (PT 681) 415 at 436 were relied upon.
The Appellant maintained that the Lower Court did not consider every defence that was available to him on the evidence, however slight or minor and that this led to a miscarriage of justice which will necessitate the decision of the Lower Court being quashed. The Appellant relied inter alia on the cases of AHMED vs. THE STATE (1999) 7 NWLR (PT 612) 641 at 679, WAZIRI vs. THE STATE (1997) 3 NWLR (PT.496) 689 at 712, NWOSU vs. THE STATE (1998) 1 NWLR (PT 562) 433 at 444 and OPEYEMI vs. THE STATE (1985) 2 NWLR (PT 5) 101 at 112.
It is the further contention of the Appellant that several material irregularities which went to the root of the case occurred in the course of the trial including, but not limited to, admitting oral evidence to contradict the written document, Exhibit C. The Appellant further posited that a vital witness, the husband of the PW1, was not called by the Prosecution thereby creating a vacuum in the case of the Prosecution, which vacuum was fatal. The Appellant also asserted that the Prosecution did not rebut the defences he adduced and that there were inconsistencies in the case of the Prosecution. The cases of OLALOYE vs. BALOGUN (1990) 5 NWLR (PT.148) 24, AUDU vs. GUNTA (2004) 4 NWLR (PT 864) 463, OKUNDAYE vs. THE STATE (1978) 1 NWLR 608 and ABU ANKWA vs. THE STATE (1969) 1 ALL NLR 133 among others were cited in support.
The Appellant submits that the evidence on the record was nothing more than promises or declarations of intention to do something in the future and that it did not disclose a criminal offence. The Appellant maintained that there cannot be a conviction for false pretences where the representation relates to a future matter. Section 17 of the Advance Fee Fraud and Other Related Offences Act and the cases of ACHONRA vs. IGP (1958) 3 FSC 30, STATE vs. OSLER (1991) 6 NWLR (PT 199) 576 at 586 – 587 and OVIE vs. ICP (1959) WNLR 75 were relied upon. The Appellant opined that an honest belief in the truth of the statement on his part which later turns out to be false cannot found a conviction for false pretence. The cases of ALAKE vs. THE STATE (1991) 7 NWLR (PT.205) 567 at 591, R vs. DENT (1955) 2 Q B 590 or (1955) 2 ALL ER 806 and LAWAL vs. THE QUEEN (1963) ALL NLR 174 at 176 – 178 were referred to.
The Appellant submitted that there was no direct evidence establishing the mens rea required to constitute the offence charged and that the available circumstantial evidence was not cogent and compelling as to be consistent with guilt. The cases of MANDILAS AND KARABERIS LTD vs. IGP (1958) 1 NSCC 70 at 74, ONUOHA vs. THE STATE (1999) 3 NWLR (PT.385) 591 at 598 and IDEHEN vs. THE STATE (1978) 1 NCAR 577 were cited in support.
The Appellant further submitted that the ingredients of the offence charged were not proved as indeed no specific pretence or misrepresentation was laid in the charge. The cases of UUAKA vs. COP (1976) NSCC 285 at 289 – 290 and NWOKEDI vs. COP (1977) 11 NSCC 127 at 129 among others were relied upon.
The Appellant finally argued that the Lower Court did not give adequate consideration to the evidence on record such that material contradictions in the evidence of the prosecution witnesses were left unexplained and it was not for the court to pick and choose which to believe as the whole evidence is worthless. The Appellant,then posited that the Lower Court did not evaluate the evidence properly, reasonably and satisfactorily. The cases of FCDA vs. NWANNA (1998) 4 NWLR (PT 544) 73 at 89, R vs. ABIA (1936) 3 WACA 40 and STATE vs. KURA (1975) 9 NSCC 25 at 28 were called in aid.
SUBMISSIONS OF RESPONDENT
The Respondent submits that the Appellant made a representation to the PW1 which was false and that as a result of the said representation the PW1 was induced to give various sums of money to the Appellant and the Appellant failed to deliver on the representation he made. It was posited that in order to secure conviction under Section 1 (1) (a) of the Advance Fee Fraud and Other Related Offences Act, the Prosecution must show beyond reasonable doubt that the Appellant by a false pretence and with intent to defraud obtained money from the PW1. The definition of false pretence under Section 23 of the Advance Fee Fraud and Other Related Offences Act was referred to and it was opined that the offence of obtaining by false pretence was committed as the Appellant wilfully and knowingly had a definite knowledge that he could not obtain the travel documents. The cases of NWOKEDI vs. COP (1997) 3 SC 35 and ONWUDIWE vs. FRN (2006) NSCQR 36 were relied upon.
Referring to Section 14 of the Advance Fee Fraud and Other Related Offences Act, the Prosecution submitted that there is evidence in the testimony of the PW1 and PW3 that the Appellant used the money he collected from the PW1 to buy a padded Mercedes 190 car. The cases of REEKIE vs. THE QUEEN (1954) 14 WACA 501 at 502 and OGUNBAYO vs. THE STATE (2007) 30 LRN 176 were referred to on nature and quality of evidence of corroboration. The Prosecution maintained that it proved its case beyond reasonable doubt as all the ingredients of the offence were proved as required by law; and that it was not required to prove its case beyond the shadow of doubt. It was further posited that the Prosecution did not have to prove that the Appellant received the entire amount stated in the charge since it sufficed if it was established that a proportion of the amount was received. The cases of OBIAKOR vs. THE STATE (2002) 10 NSCQR 936 – 937, MAIGARI vs. THE STATE (2010) 16 NWLR (PT.1220) 447 and KWESI SAGOE vs. THE QUEEN (1963) 1 ALL NLR 290 were relied upon.
It was further submitted that the Appellant failed to explain how the PW1’s husband was a vital witness and the vacuum the failure to call him created in the case of the Prosecution. The Respondent asserted that the Lower Court duly considered the defence raised by the Appellant and that even though a court must consider any defence raised by an accused person no matter how stupid or unreasonable, it was not the role of the court to invent or formulate a defence for an accused person, where upon a consideration of the totality of the evidence, none is open or available to him. It was stated that the evidence of the Appellant was a denial of the charge contending that he only collected N400,000.00 from PW1’s husband for the purchase of tickets. The Respondent submitted that the testimonial evidence of the Appellant was in conflict with his extra-judicial statement, Exhibit C, where he stated that he collected money from PW1 and her husband and that the Lower Court was justified in disbelieving the Appellant.
The Respondent further submitted that it was still open, notwithstanding the purchase receipt Exhibit C, for the PW3 to adduce oral evidence as to how and when payment for the Mercedes 190 car was made by the Appellant, since the said purchase receipt did not fall within the category of documents contemplated by Section 132 of the Evidence Act, 1990. It was then conclusively submitted that the Lower Court duly examined the defence raised by the Appellant and found the same to be bizarre, unreasonable and an affront to intelligence and consequently ignored the same. The case of AIGOKHIAN vs. THE STATE (2004) 18 NSCQR 175 was cited in support.
RESOLUTION OF ISSUE
The fulcrum of this appeal and the submissions of learned counsel on both sides of the divide is on whether the Prosecution proved beyond reasonable doubt the offence of obtaining by false pretence with intent to defraud for which the Lower Court convicted the Appellant as charged under Section 1 (1) (a) of the Advance Fee Fraud and Other Related Offences Act.
Now, Section 1 (1) (a) of the Act provides as follows:-
1. Notwithstanding anything contained in any other enactment of law, any person who by any false pretence, and with intent to defraud
(a) obtains, from any other person in Nigeria or in any other county for himself or any other person….. commits an offence under this Act.”
False pretence is defined in Section 20 of the Act as:
” ‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact of law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.”
Before I proceed, with a consideration of whether the essential ingredients were made out by the evidence adduced by the Prosecution, let me brevi manu deal with the submission of the Appellant that the PW1 is an accomplice and or tainted witness and that the Lower Court ought to warn itself before acting on such evidence or at least seek corroborative evidence. Now, it is crystal clear that the PW1 is the victim of the false pretence with intent to defraud allegedly perpetrated by the Appellant. It is rather uncharitable for the Appellant to submit that the victim of the alleged cozenage is an accomplice. Indeed the Appellant himself at paragraph 2.1.2 on page 8 of the Appellant’s Brief submitted that –
“The Appellant/Accused-Person will concede that a victim of an offence is not an accomplice. The acknowledged principle is that a person cannot be convicted of an offence upon himself…”
In the light of this concession, I would regard the submissions of the Appellant that the Lower Court should have warned itself or treated the PW1 as an accomplice or tainted witness as non-sequitur.
Now, for the offence of obtaining by false pretences to be committed it must be proved that the accused person had an intention to defraud and that the thing is capable of being stolen. An inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused person to imprisonment for the offence.
It is hornbook law that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretences are:
1. That there was a pretence.
2. That the pretence emanated from the accused person
3. That the pretence was false.
4. That the accused person knew of the falsity of the pretence or did not believe in its truth.
5. That there was an intention to defraud.
6. That the property or thing is capable of being stolen.
7. That the accused person induced the owner to transfer his whole interest in the property. See ALAKE vs. THE STATE (1991) 7 NWLR (PT 205) 567 at 591, ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 55 and ODIAWA vs. FRN (2008) ALL FWLR (PT.439) 436.
In resolving the question of whether there was a false pretence emanating from the Appellant and which induced the PW1 to part with her money the Lower Court after reviewing, evaluating and assessing the evidence adduced concluded as follows: –
“In the light of this, the court is of the view that the evidence of the P.W.I that the accused person made a representation to her to that effect is more credible that the denial of the accused person. The court, therefore, accepts the evidence of the P.W.1 that the accused person represented to her that Edafe, his brother was in a position to take her relations to Europe.”
(See page 57 of the Records).
In resolving the issue of the falsity of the representation to the knowledge of the Appellant and whether the representation was made with the intention to defraud, the lower after assessing the evidence adduced found and held as follows at page 61 of the Records:
“The evidence before the court is that the accused person approached the P.W.3 to purchase the vehicle, exhibit ‘C’ on 11.04.09 [sic]. He took the vehicle away on that day without paying for it as the cheque he issued in respect thereof was dishonoured. The P.W.3 wanted the vehicle returned but the accused person would have none of it. He promised to pay for the car. The conclusion I draw from the totality of the evidence before me is that the accused person needed money to pay for the car and to this end, he represented to the P.W.I that his brother Edafe was in a position to assist two of her relations to travel abroad, knowing fully well that neither he nor his brother was in a position to do so. The court is of the view that the representation was false to the knowledge of the accused person and that it was made with the intention of defrauding the P.W.1.”
The gravamen of the submissions of the Appellant in his arguments on pages 7 – 30 of the Appellant’s Brief can be summed up as being that the Prosecution did not prove its case beyond reasonable doubt because the ingredients of the offence charged were not made out. Is this position correct? I have already set out the findings made by the Lower Court on the basis of which it held that the essential ingredients or elements of the offence had been made out and the offence proved beyond reasonable doubt.
It is trite law that where the findings made in a case are supported by the evidence believed by the trial court, an appellate Court will be loath to interfere with such findings unless they are evidently perverse: IGBI vs. THE STATE (2000) LPELR (1444) 1 at 15. The question therefore is whether the findings by the Lower Court are supported by the evidence or whether they are perverse.
The false pretence on the part of the Appellant is very clear. It is firstly that his brother would take the relations of the PW’1 to Italy and when this did not work out, the other representation was that his sister will take the PW1’s son to Spain. See the testimony of the PW1 at pages 3 – 8 of the Records. The Appellant’s version of events is nothing other than a denial of having had any dealings with the PW1 (See the testimony of the Appellant on pages 34 – 36 of the Records).
At the time the Appellant made the representation he knew that neither his brother nor his sister was going to take the PW1’s relations and son to Italy and Spain. That made the pretence false. Since the Appellant had the intention to defraud, the Appellant kept away from the pW1 the fact that his brother and sister were not going to take her relations and son to Italy and Spain. The action and conduct of the Appellant was the flimflam by which the Appellant hornswoggled and fleeced the PW1 of various sums of money, the money being a thing capable of being stolen.
In the old English case of R vs. JOHN JAMES SULLIVAN 3 OCR APP R 132 at 134 which was quoted with approval by Obaseki, JSC in IJUAKA vs. COMMISSIONER OF POLICE (1976) LPELR (1466) 1 at 11, Humphreys, J. dealing with what has to be proved in order to establish the intent to defraud stated as follows:
“In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to the prove to the satisfaction of the jury (court) that there was some mis-statement which in law amounts to a pretence, that is, a m is-statement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money; that the proceeding on the part of the accused was fraudulent. That is the only meaning to apply to the words with intent to defraud.”
As manifest from the evidence on record which was found and accepted by the lower cou4 it was the representation that the Appellant could arrange to have his brother and sister take the PW1’s relations and son to Italy and Spain that made the PW1 part with her money. Let me hasten to add that this representation was not futuristic as submitted by the Appellant. It was very much in the present: advance money so they can be taken to Italy and Spain. It is actually what the law under which the Appellant was charged is aimed at advance fee fraud.
The Appellant having received the money did not utilise the money for the purpose for which the representation which induced the PW1 to part with the money was made. The evidence on record supports the finding of the Lower Court at page 61 of the Records that the Appellant needed money to pay for the Mercedes 190 car which he purchased from the PW3; consequent upon which he made the representation in order to inveigle the PW1 to part with her money.
In resolving the disceptation as to whether the PW1 parted with moneys as a result of the representation made to her by the Appellant, the Lower Court which had the unparalleled advantage of hearing and seeing the witnesses testify found and held as follows at page 59 of the Records:
“The fact of the purchase of exhibit ‘C’ within the period the P.W.1 said she paid the sum of N600,000. to the accused person; the fact that the car was paid for by the accused person in the instalments that the P.W.1 testified she gave the money to the accused person; the fact that the accused person did not offer any explanation as to how he came about the money with which he purchased the car, are in my view corroborative of the evidence of the P.W.I that she gave the accused person the sum of N600, 000. as a result of the representation made to her by the accused person that his brother, Edafe, was in a position to take her relations to Italy.”
This finding by the Lower Court has ample support in the testimony of the PW1 and PW3.
Without a doubt and as rightly found by the Lower Court, the ingredients of the offence of obtaining by false pretences were made out and the charge against the Appellant was established beyond reasonable doubt. See AMADI vs. THE STATE (2008) LPELR (441) 1 at 25 or (2008) 12 SC (PT III) 55. Consequently, there is no basis on which this court can interfere. In my view, the Prosecution proved the offence of obtaining by false pretences against the Appellant beyond reasonable doubt and I so hold.
It remains to consider some other peripheral issues embedded in the submissions of the Appellant. The Appellant contended that the PW1’s husband was a vital witness who the prosecution did not call to testify.
The law seems to be settled beyond peradventure that there is no obligation on the prosecution to call a host of witnesses. All the prosecution needs to do is to call enough material witnesses to prove its case and in so doing, it has a discretion in the matter as to who to call. See ADAJE vs. THE STATE (1979) 6-9 SC 18 at 28. If the Appellant considered the PW1’s husband a vital witness, then he should have called him. The Appellant should not expect the prosecution to call him when nothing stopped the Appellant from calling him: NWAEZE vs. THE STATE (1996) 2 NWLR (PT 425) 1 at 15 C-D, ASARIYU vs. THE STATE (1987) 4 NWLR (PT.57) 709, OGBODU vs. THE STATE (1987) 2 NWLR (PT.54) 20 and EZE vs. THE STATE (2013) LPELR 1 at 29.
The Appellant also argued that the testimony of the PW3 was inadmissible since the effect of the testimony was to use oral evidence to alter the contents of the purchase receipt, Exhibit C, especially as it relates to the date when the Mercedes 190, Exhibit C, was bought and paid for. I am not enthused by this argument. The tenor of the testimony of the PW3 is to the effect that the cheque issued by the Appellant and on the basis of which Exhibit C was issued on 11th April 2007 was dishonoured upon presentation and that the Appellant eventually paid the purchase price in two instalments at a later date. I fail to see how this testimony is an alteration of the contents of Exhibit C. In any event, it is instructive that the testimony of the PW3 in this regard which is at pages 11-12 of the Records was not challenged under cross examination by the Appellant, neither was it controverted by the Appellant in his testimony which is at pages 34-36 of the Records.
The Appellant strenuously argued that the Lower Court failed to consider the defences available to him. This contention is however not borne out by the Records. Let me start by saying that the court is an arbiter and as an impartial umpire, the role of the court is to consider the available defences disclosed by the evidence. It is not for the court to consider defences that are not disclosed by the available evidence. After all in deciding a matter the court relies on the evidence adduced. Be that as it may, the Lower Court exhaustively considered the defences set up by the Appellant. (See pages 55-61 of the Records). lt was after a due consideration of the Appellant’s case that the Lower Court conclusively stated as follows on page 61 of the Records:
“Having considered the evidence of the respective parties against the background of the antecedent and subsequent events in this case, the court finds the evidence of the PW1 more credible than that of the accused person.”
CONCLUSION
After having insightfully considered the Records of Appeal and the submissions of learned counsel, lam satisfied that from the available evidence the Lower Court rightly arrived at a finding of guilt. Before I put a wrap on this judgment, let me state that the conduct of the Appellant in the circumstances of this matter leaves much to be desired. It leaves a sour taste in the mouth. From the Records the Appellant professes to be a Minister of Religion. A Reverend. I wanted to add gentleman but his conduct hasn’t been that of a gentleman. He was said to have met the PW1 through his mother. The PWI who is a Pastor is said to be a prayer partner of the Appellant’s mother. The Appellant’s mother requested the PW1 to assist in reviving the Appellant’s Ministry in Ughelli, a task that the PW1 started effecting. It is sad that the love of money which is the root of all evil drove the Appellant into this cozenage. The Appellant avows to be a man of God, Pastor of Christ Militant Church International Centre with headquarters in Ughelli (see page 19 of the Records). Sad. Very sad indeed. I would want to say more but I think I should not. I will leave it at that. Suffice it however to state that the Appellant by his conduct in this matter is a disgrace to clerics.
In a summation, the issue for determination is resolved against the Appellant. The appeal is totally devoid of merit. It fails and it is accordingly dismissed. The judgment of the Lower Court in Charge No. A/40C/2007 delivered on 29th July 2009, embodying the conviction, sentence and order for restitution is hereby affirmed.
PHILOMENA MBUA EKPE, J.C.A.: I have been opportune to read in draft the judgment just delivered by my learned brother U. A. Ogakwu. From the evidence on record found and accepted by the Lower Court the appellant’s conduct leaves much to be desired particularly as the man of God he professes to be.
I have no doubt whatsoever in resolving the issues for determination against him. I totally agree with my learned brother’s summation, conclusion and reasoning. I too hold that the appeal has no scintilla of merit and it is accordingly dismissed. The judgment of Lower Court in charge No. A/40c/2007 delivered on the 29th day of July 2009 is hereby affirmed.
HAMMA AKAWU BARKA, J.C.A.: I had the advantage of reading before now the judgment just delivered by my brother Ugochukwu Anthony Ogakwu, JCA in draft.
Having also read the issues and submissions in the briefs, I agree with the reasoning and the conclusion reached by my brother. I hold that the Appeal lacks merit and it is hereby dismissed by me. The judgment of the Lower Court delivered on the 29/07/2009 is hereby affirmed; and I abide by his Lordships order as to costs.
Appearances
S. I. Dumbili, Esq.For Appellant
AND
Mrs. Chioma Onuegbu (Assistant Director of Public Prosecutions Federal Ministry of Justice)For Respondent
