SOLOMON MAKEN v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13815(CA)
In The Court of Appeal of Nigeria
On Monday, the 21st day of October, 2019
CA/YL/44CN/2019
RATIO
CONSPIRACY AND OBTAINING BY FALSE PRETENSE MUST BE PROVED BEYOND REASONABLE DOUBT
It is trite that the offence of conspiracy and obtaining by false pretence against the Appellant must be proved beyond reasonable doubt. Conspiracy is an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See F.R.N. V. UMEH (2019) LPELR 46801 SC. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
HOW TO ESTABLISH FALSE PRETENSE
In order to establish the offence of false pretence the prosecution must prove:-
1) That there was a pretence,
2) That the pretence emanated from the accused
3) That it was false
4) That the accused person knew of its falsity or did not believe its truthfulness
5) That there was intention to defraud
6) That the thing is capable of being stolen
7) That the accused person induced the owner to transfer his whole interest in the property.
See F.R.N. V. AMAH (2016) All F.W.L.R. (Part 818) 889 at 906 Paragraphs C-E.
PWI at page 597 to 598 of the record stated:-
Sometimes in 2009, my company Coscharis Motors Ltd through its division company Osychris had a discussion to supply TVS Motorcycles. Upon that discussion, a letter of award was given in favour of my company. After my company received the letter of award, 2 other letters of guarantee were received from Justice Multipurpose Co-operative Society and one from Adamawa State Judiciary, High Court. It therefore follows that the Co-operative Society could not have gotten the guarantee from Adamawa State Judiciary if it intended to defraud Coscharis Motors limited. PER ABDULLAHI MAHMUD BAYERO, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
SOLOMON MAKEN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABDULLAHI MAHMUD BAYERO, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the Federal High Court sitting in Yola, Adamawa State in Suit No. FHC/YL/56C/2019 delivered on 12th February, 2019 by Balkisu J. (as he then was). The Appellant was arraigned on an amended charge dated 25th October, 2016 for the offences of Conspiracy to obtain goods by false pretence contrary to Sections 8 (a) and 1 (3) of the Advance Fee Fraud and other Related offences Act, 2006; and obtaining goods by false pretence contrary to Sections 1 (1) a and 1 (3) of the Advance Fee Fraud and other Related Offences Act, 2006. The Appellant pleaded not guilty to the charge, the Respondent called three witnesses to prove the offences against the Appellant while the Appellant called five witnesses in his defence. The Appellant was convicted and sentenced as charged. Dissatisfied, the Appellant filed the Notice of Appeal on 27/02/2019 with 16 grounds. The Record of Appeal was transmitted to this Court on 25/03/2019; the Appellant?s Brief of argument was filed on 08/04/2019 wherein five issues were formulated for determination. The
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Respondent?s Brief of argument was filed on 13/04/2019 wherein two issues were formulated for determination.
The Appellant?s Reply Brief which was filed on 07/06/2019 was deemed as filed and served on 16/09/2019 by an order of Court for enlargement of time granted on 16/09/19. In the Appellant?s Brief, the following issues were formulated for determination in this Appeal:-
A. Whether from the totality of evidence before the trial Court, this case is not a civil case of breach of contract for non-remittance or payment of the agreed contractual sum and not a criminal case of obtaining goods by false pretence. (Distilled from Ground 7).
B. Whether the failure or refusal of the Respondent to call material and vital witnesses to prove the alleged offences of conspiracy to obtain goods by false pretence and obtaining goods by false pretence against the Appellant is not fatal to the Respondent?s case. (Distilled from Ground 14).
C. Whether from the totality of evidence before the trial Court, the membership of Justice Multipurpose Co-operative Society Ltd is restricted to staff of the Adamawa State Judiciary for the purpose
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of the motorcycle loan granted the co-operative by Coscharis Motors Ltd. (Distilled from Grounds 1, 6, 9 and 10).
D. Whether the Respondent was able to prove the essential ingredients of the offences of conspiracy to obtain goods by false pretence and obtaining goods by false pretence beyond reasonable doubt against the Appellant. (Distilled from Grounds 2, 3, 4, 5, 8, 11, 12, 15 and 16).
E. Whether the trial Court was right when it failed to resolve the doubt created in the evidence of the Respondent as to the actual sum of money, they alleged that the Appellant and the 1st Defendant diverted. (Distilled from Ground 13).
?A) Whether from the totality of evidence before the trial court, this case is not a civil case of breach of contract for no remittance or payment of the agreed contractual sum and not a criminal case of obtaining goods by false pretence.
According to counsel, the failure to remit or pay the agreed contractual sum as contemplated by the parties in the contract for the supply of the motorcycles is simply a breach of contract. That assuming but not conceding that the Appellant and the 1st Defendant indeed diverted the
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motorcycles made for the staff of the Adamawa State Judiciary to other members of the co-operative who are not civil servants, the occurrence is a simple case of breach of contract and nothing more. Hence, the consequence of their action can only be grounded on a case of breach of contract. That the case before the trial Court is a case of non-remittance or payment of the contractual sum in installments as agreed by the parties. Hence, the trial Court erred in law when it held that the offence of conspiracy to deceive Coscharis Motors Ltd can be inferred against the Appellant through his joint action with the 1st Defendant of signing the documents of the contract that misrepresented their true intention in the contract.
?That Exhibit PW1A is the legal offer in the contract between both parties. Paragraph 3 of Exhibit PW1A guarantees that Exhibits PW1B and PW1C shall be executed in favour of Coscharis Motors Ltd as soon as it accepts the offer. Hence, Exhibits PW1A, PW1B and PW1C are the offer package of Justice Multipurpose Co-operative Society Ltd to Coscharis Motors Ltd for the supply of the TVS motorcycles. That PW1, the only witness called by
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Coscharis Motors Ltd, emphatically stated in his evidence that it was based on the aforementioned documents that his company agreed to enter into the contract with the co-operative society.
That the motorcycle loan as contained in the contract was to be offset within eighteen (18) months period with the payment of N13, 354,444.44 (Thirteen Million and Three Hundred and Fifty-Four Thousand, Four Hundred and Forty-Four Naira, Forty-Four Kobo) monthly installment. Justice Multi-Purpose Co-operative Society Ltd breached the above term. Coscharis Motors Ltd in a bid to recover its money filed a civil suit at the High Court of Justice, Lagos State against the Justice Multi-Purpose Co-operative Society Ltd and the Adamawa State Government. The originating process, the judgment and the garnishee process in the case were tendered as Exhibits DW4F8 and DW4F9. See pages 381-465 of the printed record of proceedings.
?
That Coscharis Motors Ltd vide the garnishee proceedings recovered the sum of N218,000,000.00 from the account of the Adamawa State Government, the guarantor of the said motorcycle loan. The Adamawa State Judiciary and the Planning Commission
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served as guarantors to Justice Multi-Purpose Co-operative Society Ltd when it entered the contract. The trial Court alluded to the above fact in its judgment at page 695 of the printed records that Coscharis Motors Ltd had been paid by the Adamawa State Government through the suit it filed against the co-operative and state government before the High Court of Justice, Lagos State for breach of contract. That the lower Court in its judgment held:-
?I will not order restitution because the Adamawa State Government had already paid the petitioner pursuant to its standing as guarantor of the loan through the Lagos State High court judgment tendered by the convict at the trial.?
He referred to AMADI V. COP (2000) AFWLR (Part. 2) 329 at 332 and submitted that the instant case does not have any semblance of criminal case as same is purely civil in nature. That the mental element of the offence of obtaining by false pretence is the intention to defraud. He cited the case of ONWUDIWE V. F.R.N (2006) AFWLR (Part 319) 774 at 812 Paragraphs E-F and submitted that going by the evidence before the trial Court; the Appellant had no intention to defraud
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Coscharis Motors Ltd. That this can easily be inferred from the fact that the co-operative society made provision for a reputable guarantor to the contract. It is from this guarantor that Coscharis Motors Ltd recovered a whopping sum of 218,000,000.00.
That the executive members of Justice Multipurpose Co-operative Society Ltd could not have provided a guarantor like the Adamawa State Government to inoculate Coscharis Motors Ltd of an eventual loss if they had the intention to cause loss to the company. He urged this Court to resolve this issue in favour of the Appellant, discharge and acquit the Appellant of the offences he was convicted.
B) Whether the failure or refusal of the Respondent to call material and vital witnesses to prove the alleged offences of conspiracy to obtain goods by false pretence and obtaining goods by false pretence against the Appellant is not fatal to the Respondent?s case.
C) Whether from the totality of the evidence before the trial Court the membership of Justice Multipurpose Co-operative Society Ltd is restricted to staff of Adamawa State judiciary for the purpose of the motorcycle loan granted to the
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co-operative by Coscharis Motors Ltd.
Counsel submitted that a vital witness is one whose testimony is crucial and will determine the fate of a case one way or the other. Failure to call a vital witness has the ominous effect on the case of the prosecution. Consequently, the prosecution has failed in his task to discharge the herculean burden of proof beyond reasonable doubt.
That from the totality of the evidence before the trial Court, Benjamin Ibe is a staff/agent of Coscharis Motors Ltd. He delivered the 1,846 units of motorcycles on behalf of Coscharis Motors Ltd to Justice Multipurpose Co-operative Society Ltd in Yola, Adamawa State. That he participated in the distribution exercise of the 655 units of motorcycles to non-civil servants who are members of the co-operative.
That the above piece of evidence was neither challenged nor discredited by the Respondent under cross-examination.
?
That Coscharis Motors Ltd, through their agent Benjamin Ibe, actively participated in the screening and distribution of the TVS motorcycles to non-civil servants who are members of the co-operative society. Hence, Benjamin Ibe?s evidence is
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necessary to clear the doubt as to whether Coscharis Motors Ltd is ignorant of the members of Justice Multipurpose Co-operative Society Ltd who are not civil servants but benefited from the motorcycle loan. The Respondent failed or refused to invite Benjamin Ibe in the course of investigation to make a statement or as a witness during the trial to enable the defence to cross examine him on this important point. He therefore submitted that Benjamin Ibe is a material and vital witness in this case and the failure to call him is fatal to the Respondent?s case. He urged this Court to resolve this issue in favour of the Appellant, discharge and acquit him of the offences he was convicted.
He referred to the case of UNITED BANK FOR AFRICA PLC V OGUNDOKUN (2010) All FWLR (Part 504) 1521 at 1550 Paragraphs E-G and submitted that the active participation of Coscharis Motors Ltd through its agent and staff, Mr. Benjamin Ibe in the process of selection and distribution of the TVS motorcycles to non-civil servant members of the co-operative society from which the problems of remitting payment started estopped Coscharis Motors Ltd from denying knowledge of
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the scope of the membership of the co-operative society. It definitely bars Coscharis Motors Ltd from alleging an intention to defraud the company. He referred to ILOABACHIE V. PHILIPS (2002) All FWLR (Part 115) 726 at 747 Paragraphs A-C and urged this Court to resolve this issue in favour of the Appellant, discharge and acquit him of the offences he was convicted.
D) Whether the Respondent was able to prove the essential ingredients of the offences of conspiracy to obtain goods by false pretence and obtaining goods by false pretence beyond reasonable doubt against the Appellant.
That the 1st count in the amended charge against the Appellant is the offence of conspiracy to obtain goods by false pretence contrary and punishable under Sections 8 (a) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.
That the Appellant can only be guilty of conspiracy to obtain goods by false pretence if in fact the goods were indeed obtained by false pretence or intended to be obtained by false pretence. That in issue one, they have demonstrated or postulated how Coscharis Motors Ltd., and Justice Multipurpose Co-operative Society Ltd entered
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into a contract for the supply of motorcycles on loan to members of the co-operative. That they explained how the contract was breached and the subsequent suit filed by Coscharis Motors Ltd., before the High Court of Justice, Lagos State wherein the account of the Adamawa State Government, who acted as the guarantor of the loan was garnisheed and a recovery of N218,000,000.00 made in favour of Coscharis.
That in the instant case, upon a careful perusal of the evidence before the trial Court, one can conclude that the prosecution failed to prove that an unlawful act was intended by the Appellant when Justice Multipurpose Co-operative Society Ltd entered into the contract for the supply of 1846 units of TVS motorcycles for the purpose of distributing same to its members. That the prosecution failed to prove the offence of conspiracy.
?Therefore, the key question to the determination of this issue is whether the Appellant and 1st Defendant agreed to obtain 1846 units of TVS motorcycles from Coscharis Motors Ltd under a false pretense. It is our humble submission that the Appellant and 1st Defendant together with other executive members of Justice
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Multipurpose Co-operative Society Ltd acted within the precinct and purview of their duty as secretary and chairman respectively to better the welfare of its members when it undertook to enter contract with Coscharis Motors Ltd to supply 1846 units of TVS motorcycles to it.
That the Respondent failed to prove the essential element of agreement necessary to establish the offence of conspiracy. That the evidence of PW1 is that preliminary oral discussions were made between Coscharis Motors Ltd and the Justice Multipurpose Co-operative Society Ltd before both parties entered the contract. Exhibit PW1A is the offer in the contract between both parties. Paragraph 3 of Exhibit PW1A guarantees that Exhibits PW1B and PW1C shall be executed in favour of Coscharis Motors Ltd as soon as it accepts the offer. That Exhibits PW1A, PW1B and PW1C are the offer package of Justice Multipurpose Co-operative Society Ltd to Coscharis Motors Ltd for the supply of the TVS motorcycles.
That the evidence in chief of PW1 lends credence to the above facts. Thus:-
?My company agreed to enter into this contract based on this document containing the Irrevocable
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Standing Purchase Order (ISPO), that the beneficiaries? salaries shall be deducted and paid in favour of my company. Upon that, my Company went ahead and made the supply
That there is nothing in the evidence of the Respondent that discloses how the Appellant and 1st Defendant had jointly harboured any intention other than that of the entire co-operative society, or had jointly had any dealings with Coscharis Motors Ltd other than these offer documents based on which the company acted.
That the Respondent, in the instant case has not established a case of false pretence or an intention to defraud or the other elements of the offence of obtaining by false pretence. Above all, that the Respondent failed to prove the charge against the Appellant beyond reasonable doubt.
E) “Whether the trial Court was right when it failed to resolve the doubt created by the evidence of the Respondent in favour of the Appellant as to the actual sum of money they alleged that the Appellant and the 1st Defendant diverted.?
?According to counsel, in the first charge dated 6th June, 2016, the Respondent alleged that the amount due to
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Coscharis Motors Ltd from the defendants is N144,000,000.00 (One Hundred and Forty Four Million Naira). That in the amended charge dated 25th October, 2016, the Respondent alleged that the Appellant and the 1st Defendant obtained by false pretence TVS motorcycles valued at Ninety-Nine Million Nine Hundred and Eighty Thousand Naira (N99,980,000.00). He referred to pages 2, 111 and 112 of the printed records. Counsel submitted that this discrepancies should have created doubt in the mind of the trial Court; which should have been resolved in favour of the Appellant.
In his response, learned Respondent?s counsel, formulated the following issues in the Respondent?s Brief of argument thus:-
i) WHETHER THE RESPONDENT PROVED POSITIVELY THROUGH THE EVIDENCE ADDUCED AT THE TRIAL IN THE LOWER COURT THAT APPELLANT IN CONJUNCTION WITH HIS CO-DEFENDANT DID CONSPIRE AND OBTAIN MOTORCYCLES BY FALSE PRETENCES FROM COSCHARIS MOTORS LIMITED. (Distilled from Ground 2, 3, 4, 5, 14, 15 & 16)
ii) WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHERE SHE RELIED ON DOCUMENTS TENDERED AND WITNESSES CALLED BY THE RESPONDENT. (Distilled from grounds 1, 6,
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7, 8, 9, 10, 11, 12 & 13)
Counsel submitted that the ingredients for obtaining by false pretence are that:
a. 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 or did not believe in its truth
e. that there was an intention to defraud
f. that the thing is capable of being stolen
g. that the accused person induced the owner to transfer his whole interest in the property
That it is in evidence that the appellant is a principal officer responsible for directing the affairs of Justice Multipurpose Society. That PW1 in the case testified that it was upon the documents and terms of the contract presented to his company by the appellant assuring payment that it agreed to supply the appellant?s organization with motorcycles.
?
That Exhibit PW1A is the contract document issued to the petitioner by the appellant which they both signed. In this document, the appellant informed the petitioner that an irrevocable standing payment order (ISPO) and management guarantee would be executed in their favour, apparently
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to ensure that salaries of members of the co-operative would be deducted from source. Indeed PW2 explained that the ISPO was such that the members of the co-operative who are beneficiaries would have their salaries deducted and credited directly to the account of the petitioner within a stipulated time of 18 months. The petitioner was further issued with Exhibits PW1B management guarantee and PW1C ISPO to assure it of the payments for the motorcycles from salaries of the Judiciary Staff. Indeed Exhibit PW1C states that all persons who are to receive the motorcycles were ?all members of the above society who are also staff of the Adamawa State Judiciary.? Also Exhibit 3C written to Coscharis by the Chief Registrar as a letter of recognition was explicit regarding the status of the membership of the co-operative. The petitioner was informed in the said letter that ?membership of the Cooperative Society are drawn from staff of the Adamawa State Judiciary and- High Court/Magistrates and Area Court Divisions?. It is further in evidence that the appellant and his co-defendant are staff of the Adamawa State Judiciary as same was admitted in
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their tendered evidence in Exhibit PW3D and PW3E. It is therefore an irresistible fact/conclusion that it was based on the strength of these representations that the petitioner was dealing with the staff of the Adamawa State Judiciary, it agreed to supply the Appellant with the said motorcycles. Indeed, the name of the organisation represented by the appellant is named Justice Multipurpose Cooperative Society is suggestive of the membership of the organisation to be exclusive to staff of the Judiciary. Counsel referred to SALAWU V STATE (2014) 12SC (Part 2) (134).
That in contrast to the documentation and representation made to the petitioner, the said motorcycles were distributed to parties other than the staff of the Adamawa State judiciary or in the employ of the Adamawa State Government. As a result the petitioner was unable to recover the proceeds of the sale as a result of the ISPO failing to cover beneficiaries who are not staff of the Adamawa State judiciary or in the employ of the Adamawa State Government.
?
That the appellant set out to scam and misrepresent the fact of their intention to distribute the said motor cycles knowing fully well
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that if they disclose their intention, the petitioner would not have agreed to supply the said motorcycles. That there was no other purpose for which the appellant issued an ISPO to the petitioner which covered only Adamawa State Judiciary for which deductions would be made from their salaries other than to conceal their real intentions to distribute the said motorcycles to other persons. He referred to the case of DR. SEGUN ODUNEYE V. THE STATE (2001) 2 SCM 81, and Section 20 of Advanced Fee Fraud and other Fraud Related Offences Act 2006.
WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHERE SHE RELIED ON DOCUMENTS TENDERED AND WITNESSES CALLED BY THE RESPONDENT. (Distilled from grounds 1, 6, 7, 8, 9, 10, 11, 12 & 13)
?
On this issue, counsel submitted that the Respondent called 3 witnesses and tendered 13 exhibits, to prove its case against the defendants. That the Appellant and co-defendant as principal officers and alter-ego of Justice Multi-purpose Co-operative Society Ltd conspired between themselves to commit an offence and indeed played some part, to wit: as Chairman and Secretary General of Justice Multi-purpose Co-operative Society Ltd
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respectively, with intent to defraud induced Osychris Industries Ltd, a subsidiary of Coscharis Nigeria Ltd to enter into an agreement for the supply of 1846 units of TVS motorcycles to be given to its members who comprise of staff of the Adamawa State Judiciary and that their salaries would be directly debited in favour of Coscharis Motors Ltd. That this position is evidenced by the contractual documents given to the petitioner by the defendants including PW1A, PW1B and PW1C. An examination of Exhibit PW1C which is a letter of irrevocable standing payment order supplied by the Appellant to the petitioner states that ?the management of the judiciary hereby guarantee the domiciliation of payment from monthly salaries of all members of the above society who are also staff of the Adamawa State Judiciary and also a management guarantee letter submitted to the petitioner by the defendants states in paragraph 2 that ?in an event of eventuality (death insanity, retirement or termination of appointment) this organization would in conjunction with Adamawa State Planning Commission will make sure that the outstanding balance will be paid to
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your Bank by authority from beneficiary terminal benefits? and it further continues in the third paragraph that will be deducted from source and lodged vide your bank (Access Bank PLC.) for a period of eighteen months? contain the intention to obtain by false pretence therein. The defendants in their capacities as the chairman and secretary of the Justice Multipurpose Cooperative Society entered into contractual relations for supply of motorcycles with the petitioner who agreed to the contract based on the terms which were documented in the contract.
In the reply Brief of the Appellant no new point arising from the Respondent?s Brief is replied to. Reply Brief is not meant to re-argue the Appeal. Order 19 Rule 5 (1) of the Court of Appeal Rules, 2016 shows that a Reply Brief shall deal with all new points arising from the Respondent?s Brief.
DETERMINATION OF THE APPEAL
I will determine this Appeal based on issue ?D? formulated by the Appellant from grounds 2,3,4,5,8,11,12,15, and 16 of the notice of appeal:-
?Whether the Respondent was able to prove the essential ingredients of
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the offences of conspiracy to obtain goods by false pretence beyond reasonable doubt against the Appellant.?
It is important to determine from the onset whether the entire case before the lower Court was civil or criminal in nature. In other words whether from the totality of the evidence before the lower Court this case is not for breach of contract for non-remittance or payment of the agreed contractual sum or a criminal case of obtaining goods by false pretence.
Justice Multi-Purpose Co-operative Society is a registered Co-operative society with the Adamawa State ministry of commerce and Industry. The Appellant is the secretary of the society. In 2009, Coscharis Motors Ltd and Justice Multi- Purpose Co?operative Society Ltd entered into a ?contract? for the supply of 1846 units of TVS motorcycles for the purpose of distributing same to the members of the society. The total cost of the motorcycles supplied is N240,000,000. The parties agreed that payment for the motorcycles supplied would be made over eighteen (18) months period. Exhibit A is the legal contract between the parties. Paragraph 3 of the said exhibit
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guarantees that Exhibits PW1B and PW1C shall be executed in favour of Coscharis Motors Ltd as soon as it accepts the offer. PW1 the witness called by Coscharis stated in his testimony reflected at page 599 of the Record of Appeal stated that based on the documents, his company agreed to ?enter into the contract.? Upon receipt of the letter of offer for the motorcycles from the co-operative society and a Guarantee, the company supplied the motorcycles to the society. The Co-operative society could not make full payment for the motorcycles supplied to it by Coscharis Motors Ltd within the eighteen (18) months agreed.
It is trite that the offence of conspiracy and obtaining by false pretence against the Appellant must be proved beyond reasonable doubt. Conspiracy is an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See F.R.N. V. UMEH (2019) LPELR ? 46801 SC. The 2nd count of the amended charge against the Appellant is that he obtained by false pretence TVS motorcycles under false pretence contrary to Section 1(1) (a) and punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. Section 1 (1) (a) provides:-
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?1 (1) notwithstanding anything contained in any other enactment or law, any person who by false pretence, and with intent to defraud:
(a) Obtains from any other person in Nigeria or in 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 this 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 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.?
In order to establish the offence of false pretence the prosecution must prove:-
1) That there was a pretence,
2) That the pretence emanated from the accused
3) That it was false
4) That the accused person knew of its falsity
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or did not believe its truthfulness
5) That there was intention to defraud
6) That the thing is capable of being stolen
7) That the accused person induced the owner to transfer his whole interest in the property.
See F.R.N. V. AMAH (2016) All F.W.L.R. (Part 818) 889 at 906 Paragraphs C-E.
PWI at page 597 to 598 of the record stated:-
?Sometimes in 2009, my company Coscharis Motors Ltd through its division company Osychris had a discussion to supply TVS Motorcycles. Upon that discussion, a letter of award was given in favour of my company. After my company received the letter of award, 2 other letters of guarantee were received from Justice Multipurpose Co-operative Society and one from Adamawa State Judiciary, High Court.? It therefore follows that the Co-operative Society could not have gotten the guarantee from Adamawa State Judiciary if it intended to defraud Coscharis Motors limited. At page 602 of the Record of Appeal PW1 further stated:- ?When my company waited for payment and it was not forthcoming, we went to make inquiry to the Co-operative society and they told us they will return some motorcycles to us
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since they cannot make payment. The Co-operative returned 600 units of another brand of motorcycles?..we accepted them.?
Under cross examination, PW1 revealed that he knows Benjamin Ibe, staff of Coscharis Motors the company that liaised with Adamawa State for the ?contract?. That Benjamin participated in the discussion that led to the ?agreement.?
At page 606 of the Record PW1 when cross examined by Appellant?s counsel stated:-
?I know Benjamin Ibe, he is the staff so Osychris company that liaised with Adamawa State for the contract? it is correct that Benjamin Ibe participated in the discussions that led to the agreement.”
The Appellant as DW4 stated at page 650 of the Record stated:-
Then Benjamin Ibe retrieved 600 units of motorcycles from the chairman of the co-operative. Those persons given the motorcycles who are not civil servants refused to pay the agreed sum for the motorcycles through the bank. Coscharis told us the remittance was not completed. So we contacted our legal adviser on the matter and he wrote letters of demand
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for payment to those who failed to pay?.he filed a case at the High Court against all of them for the payment of the money?. We obtain Judgment against some of the defaulters.?
A careful perusal of the Judgment of the High Court of Lagos State (Exhibit DWF9) particularly at pages 2 and 3 thereof the company claimed that the relationship between it and the Co-operative Society was a commercial relationship, that the co-operative society breached the contract and failed to pay the company. All these goes to show that there was no criminal intent in the whole transaction.
?
From the record of Appeal at pages 606 and 648, the evidence of PW1 and the Appellant as DW4 proves that Benjamin Ibe was the staff of the company (Coscharis Motors) who discussed the supply of the motorcycles with the Co-operative Society. The Appellant has therefore told EFCC so. Yet the prosecution refused to investigate that the Co-operative Society negotiated with Benjamin Ibe staff of Coscharis Motors the terms of the contract for the supply of the motorcycles. It is an admission by the Respondent that the transaction between Coscharis Motors
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and the Co-operatives was a commercial transaction.
The lower Court therefore acted in error when it sentenced and convicted the Appellant for the offence of conspiracy to obtain goods by false pretence from Coscharis Motors contrary to Section 8(a) of the Advance Fee Fraud and Other Related Offences Act, 2006. The sole issue for determination is therefore resolved in favour of the Appellant and against the Respondent. The Appeal is allowed, the conviction and sentence of the Appellant by the lower Court is hereby quashed. The Appellant is discharged and acquitted.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by my learned brother, ABDULLAHI MAHMUD BAYERO, JCA. I agree with his reasoning and decision arrived at in allowing the appeal, I allow same.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Abudullahi M. Bayero. I agree entirely with my learned brother that there was nothing criminal in the transaction between the Cooperative Society of which Appellant was Secretary and Coscharis Motors to
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warrant the prosecution of the Appellant under the Advance Fee Fraud and Other Related Offences Act 2006.
For the more detailed reasons in the lead judgment, I too allow the appeal, quash the conviction and sentence of the Appellant by the Court below. Appellant is discharged and acquitted.
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Appearances:
D.S. Adeboye, Esq. with him, R. M. Agar, Esq., M.M. Otokpa, Esq. and P.O Ijabor, Esq.
For Appellant(s)
A.Y. Muntaka, Esq.For Respondent(s)
Appearances
D.S. Adeboye, Esq. with him, R. M. Agar, Esq., M.M. Otokpa, Esq. and P.O Ijabor, Esq.For Appellant
AND
A.Y. Muntaka, Esq.For Respondent
