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ULOH v. FRN (2021)

ULOH v. FRN

(2021)LCN/15765(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Thursday, June 17, 2021

CA/A/778C/2019

Before Our Lordships:

Uchechukwu Onyemenam Justice of the Court of Appeal

Stephen Jonah Adah Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Between

JOHN JOSHUA ULOH APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT CAN REFORMULATE ISSUES IN THE INTEREST OF ACCURACY AND CLARITY

This Court has the capacity under the law to reformulate the issues to accentuate the real question in controversy in the interest of accuracy, clarity and brevity. Ukpong v. State (2019) LPELR–46427 (SC). See also, the case of First Bank of Nigeria Plc v. Rev. Michael Jimmy Okon & Ors. (2017) LPELR-43530(CA), where this Court held:
It is clearly not in doubt that this Court is at liberty and possesses the jurisdiction to modify, to reject all or any of the issues formulated by the parties and frame its own issues where such will enhance its desire to do justice to all or enhance a proper determination of the appeal. The only caution is that such issues framed or reframed must at all times be related to the grounds of appeal filed. See the case of Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685.
PER ADAH, J.C.A.

THE OFFENCE OF OBTAINING PROPERY BY FALSE PRETENCES

The offence of obtaining property by false pretense is dealt with by the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. False pretense is defined as follows:
“false pretense” 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 to be true. 1(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”.
PER ADAH, J.C.A.

THE MAIN PURPOSE OF A CHARGE

The elements of the offence are as contained in the charge. It would be recalled that the main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed, such a charge will be good in law. See Akang v. State (1971) NSCC Vol. 7 55; Ozo v. State (1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565; Njoku v. State (1993) 6 NWLR (Pt. 299) 272; Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167. PER ADAH, J.C.A.

WHETHER OR NOT THE CHARGE OF OBTAINING PROPERTY BY FALSE PRETENCES MUST BE PROVED BEYOND REASONABLE DOUBT

The charge of obtaining property by false pretense must be proved beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011. The ingredients of the offence were itemized in the case of Darlington v. FRN (2018) LPELR–43850 (SC), where Eko, JSC, held as follows:
“The offence of obtaining by false pretense created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts: I. A pretense is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is a pretense. V. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation, the accused induced the victim to deliver or transfer some other person. VIII. The property transferred is capable of being stolen i.e. is asportable. These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: Onwudiwe v. FRN (2006) All FWLR (Pt. 319) 774 at 779–780; (2006) 10 NWLR (Pt. 988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct”
PER ADAH, J.C.A.

THE OFFENCES OF DISHONOURED CHEQUES

The offences of dishonoured cheques are under Section 1(1)(b) of the Dishonoured Cheques Offences Act, 2004. Section 1(1) of the Dishonoured Cheque (Offences) Act, ​provides thus: “1. Any person who – (a) Obtains or induces the delivery of anything being stolen either to himself or to any other person, or (b) Obtains credit for himself or for 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 fine. (ii) in the case of a body corporate, be sentenced to a fine of not less than N5000. While Section 2 provides that: 2. Where any offence under this act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officers, servants or agent of the body corporate (or any person purporting to act in any such capacity), he as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.
To establish the offence, the prosecution must prove the following elements; that the appellant obtained credit by himself, that the cheques was presented within 3 months of the date thereon; and that on presentation, the cheque was dishonoured on the grounds 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.
PER ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of the Federal Capital Territory, Abuja, delivered on the 3rd June, 2019 in Charge No. FCT/HC/293/16 – Between: Federal Republic of Nigeria v. John Joshua Uloh & Anor., in which the appellant as the accused was convicted and sentenced under Section 310(1) and Section 311(1) of the Administration of Criminal Justice Act, 2015.

​The crux of this case was that the appellant received the sum Ten Million Naira (N10,000,000) from the complainant (PW2) to help secure a plot of land in Wuye and later Asokoro. In respect of that, the PW2 made an initial payment of N5million to facilitate the allocation of the land, which was paid in two installments of N1.5 Million and 3.5 Million. The appellant alleged he secured the land and PW2 couldn’t come up with the remaining fees for the land so the land was lost to other buyers. The appellant alleged he offered PW2 another land in Asokoro and which they went to see after payment of the processing fees. He contended that on getting to the land, the PW2 resolved that she was no longer going to continue with the transaction and requested that the total sum N10 Million for the processing of both lands be refunded back to her. The appellant claimed that the said monies had been expended to process the two lands, and that there was nowhere he could raise such money to refund. The appellant then issued two postdated cheques through his company to BENA-FRACO NIG LTD in the sum of N5 Million each on the outstanding that BENA-FRACO upon withdrawal of the sum shall remit to PW2, but the cheques bounced at the bank. The appellant then decided to refund the sum of N3Million to PW2 leaving N7Million balance. The appellant was now charged with the offence of obtaining money by false pretense.

​To prove her case, the prosecution, at the trial Court called four witnesses in proof of the charge against the defendants and also tendered four exhibits through PW3, while the defence called one witness. The Court took counsel’s final address and in a reserved judgment delivered on 3rd June, 2019, found against the appellant and the 2nd Respondent and accordingly convicted and sentenced the appellant to 7 years imprisonment for counts 1 and 2, and 2 years imprisonment for counts 3 and 4. The 2nd defendant being a corporate body was found guilty in count 3 and count 4 respectively (with fine).

Against the judgment, the appellant appealed to this Court on a 13 (Thirteen) grounds of appeal by virtue of the Notice of Appeal dated and filed on 4th July, 2019. Record was transmitted on the 30th August, 2019, appellant’s brief was filed on 11th October, 2019. The respondent did not file any brief in respect of this appeal.

In the appellant’s brief of argument filed on the 11th October, 2019, the following 6 (six) issues were identified and formulated for determination of this Court:
1. Whether the learned trial Judge was right when he relied on the extra-judicial statements of the appellant and the case of NWOKEARU V. STATE to hold that there was glaring inconsistency which renders the credibility and truthfulness of appellant’s evidence unreliable. (Arising from grounds 1 and 2).
2. Whether the learned trial Judge was right when on the supposition that there was inconsistency which under the authority of the NWOKEARU V. STATE renders the evidence of the appellant unreliable, he rejected and disregarded appellant’s evidence as to the existence of a land application to the Honorable Minister FCT on behalf of PW2 and the subsequent acknowledgement and held that there was no such acknowledgement. (Arising from ground 3).
3. Whether the learned trial Judge was right when without properly evaluating the evidence of the parties before him and when in spite of the absence of any credible or admissible evidence from the respondents, he found and or held as follows:
i. That the appellant obtained a cumulative sum of N10 Million from the PW2 under false pretense of producing land allocation at Wuye and Asokoro for her, which pretense is false as no application for land was made and no allocation was procured and the PW2 believed in the falsehood and parted with her money to that effect.
ii. That the appellant not only knew of the falsity of the pretense but also had the intention to defraud the PW2 and indeed induced her to transfer her whole interest in the money to him by making demands of money from her after disappointing her in the first transaction.
iii. That the defence of false pretense, its essential elements as well as counts 1 and 2 in the charge against the appellant have been established or proved beyond reasonable doubt by the respondent against the appellant. (Arising from grounds 4, 5, 6 and 13).
4. The offence of false pretense having not been established beyond reasonable doubt, whether the learned trial Judge was right to have convicted the appellant on counts 1 and 2 of the charge against the appellant. (Arising from ground 7).
5. Whether the learned trial Judge was right when in spite of the absence of credible and admissible evidence to the effect that the Zenith Bank cheques issued to BENA FRANCO NIGERIA LTD were presented within three months of the dates thereon but were dishonoured on the ground that no funds or insufficient funds were standing to the credit of the drawer in the bank on which the cheques were drawn, he held that the prosecution has proved Counts 3 and 4 beyond reasonable doubt and also convicted the appellant who was not the drawer of the cheques. (Arising from ground 9 and 10).
6. Whether the learned trial Judge was right when in the absence of evidence establishing the offences in counts 1, 2, 3 and 4 of the charge against the appellant, he proceeded to sentence the appellant to various terms of imprisonment and also made an order of restitution against the appellant. (Arising from grounds 11 and 12).

The respondent did not file any brief of argument to contest this appeal. This ordinary raises the presumption that the respondent does not want to contest this appeal and ipso facto has conceded to the issues raised in the appeal by the appellant through his brief of argument. Order 19 Rule 4(1)–(2) of the Court of Appeal Rules, 2016 provides:
4–(1) The respondent shall also within thirty days of the service of the brief for the appellant on him file the respondent’s brief which shall be duly endorsed with an address or addresses for service.
2. The respondent’s brief shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein which the respondent wished to concede as well as reasons why the appeal ought to be dismissed. It shall mutatis, also conform to Rule 3(1), (2), (3), (4), (5) and (6) of this Order.
The law therefore, confers on the respondent in an appeal, the duty to answer all the relevant questions or issues contained in the appellant’s brief and further show to the Court why the appeal should not be allowed. In a situation where a respondent failed to file a respondent’s brief, Order 19 Rule 10(1) of the Rules of this Court, 2016 requires that the respondent would not be heard in oral argument in Court in respect of the appeal. The failure of the respondent to file a respondent’s brief, though not encouraged does not mean that the appellant’s appeal would succeed automatically. The Court still has the bounden duty to consider the issues in the appeal and determine them on merit. See Bassey Asinya v. The State (2016) LPELR–40545 (CA). I shall therefore look at the issues raised in this appeal and consider them on merit.

​I have taken time to go through the 13 grounds of appeal in the instant case and the issues generated therefrom. What is clear and paramount in the instant appeal is whether the offences for which the appellant was charged were proved beyond reasonable doubt as required by Section 135 of the Evidence Act, before the appellant was convicted. This Court has the capacity under the law to reformulate the issues to accentuate the real question in controversy in the interest of accuracy, clarity and brevity. Ukpong v. State (2019) LPELR–46427 (SC). See also, the case of First Bank of Nigeria Plc v. Rev. Michael Jimmy Okon & Ors. (2017) LPELR-43530(CA), where this Court held:
It is clearly not in doubt that this Court is at liberty and possesses the jurisdiction to modify, to reject all or any of the issues formulated by the parties and frame its own issues where such will enhance its desire to do justice to all or enhance a proper determination of the appeal. The only caution is that such issues framed or reframed must at all times be related to the grounds of appeal filed. See the case of Sha (Jnr.) v. Kwan (2000) 8 NWLR (Pt. 670) 685.

For the sake of clarity and brevity, the issues generated by the appellant shall be reformulated by this Court.
The sole issue is:
Whether the offences charged were proved beyond reasonable doubt to justify the conviction of the appellant.

​This issue, it is prime and apt, is what is to be considered in the instant appeal. All the issues framed by the appellant are accordingly reformulated to read:
Whether from the evidence before the lower Court, the charge against the appellant was proved beyond reasonable doubt to warrant the lower Court convicting the appellant.

To deal with this issue, I want to look at the charge before the lower Court. The charge has four counts. The charge reads as follows:
Count One:
That you John Uloh, on or about the month of January, 2012 in Abuja within the jurisdiction of this Honourable Court with the intent to defraud obtained the sum of Five Million Naira from one Francisca Sambo under the pretense of securing a plot of land for her at Wuye Abuja which pretense you knew was false and thereby committed an offence contrary to Section 1(2) of the Advance Fee and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
Count Two:
​That you John Uloh, on or about the month of March 2012 in Abuja within the jurisdiction of this Honourable Court with intent to defraud obtained the sum of Five Million Naira from one Francisca Sambo under the pretense of securing a plot of land for her at Asokoro Abuja which pretense you knew was false and thereby committed an offence contrary to Section 1(2) of the Advance Fee and other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
Count Three:
That you John Joshua Uloh being the Managing Director of Integrated Business Network International Limited, a company incorporated in Nigeria and you Integrated Business Network International Limited, on or about the 6th day of April, 2014 in Abuja within the jurisdiction of this Honourable Court with the knowledge that you had insufficient fund in your Zenith Bank Account issued one Bena Franco Nigeria Limited Zenith Bank cheque No: 89007790 dated 6th April, 2014 for the sum of Five Million Naira (N5,000,000) which when presented for payment within three months of issuance was dishoured due to insufficient fund in your account and thereby committed an offence contrary to Section 1(1)(b) of the Dishonoured cheques Offences Act, Cap D11, Laws of the Federation of Nigeria 2004 and punishable under Section 1(1)(b)(i) of the same Act.
Count Four:
​That you Joshua Ulo being the Managing Director of Integrated Business Network International Limited, a company incorporated in Nigeria and your Integrated Business Network International Limited, on or about the 6th day of April, 2014 in Abuja within the jurisdiction of this Honourable Court with the knowledge that you had insufficient fund in your Zenith Bank Account issued one Bena Franco Nigeria Limited Zenith Bank cheque No: 89007790 dated 6th April, 2014 for the sum of Five Million Naira (N5,000,000) which when presented for payment within three months of issuance was dishonoured due to insufficient fund in your account and thereby committed an offence contrary to Section 1(1)(b) of the Dishonoured cheques Offences Act, Cap D11, Laws of the Federation of Nigeria, 2004 and punishable under Section 1(1)(b)(i) of the same Act.

From the charge before the Court, there are two dominant offences which are:
(1) obtaining property by false pretense under Sections 1(2) and 1(3) of the Advance Fee and Other Fraud Related Offences Act, 2006; and
(2) issuance of dishonoured cheques under Section 1(1)(b)(i) of the Dishonoured Cheques Offences Act, 2004, LFN.

​The prosecution at the lower Court called four witnesses while the appellant solely testified for defence.

The lower Court in its judgment noted as follows:
“The evidence adduced before this Court by the prosecution is that the 1st Defendant in representation of the 2nd Defendant represented to the nominal complaint, Francisca Sambo (PW2) that he could procure allocation of plots of land for her in Abuja, first at Wuye and later at Asokoro, and consequent upon this representation, the PW2 parted with a total sum of N10m. Within a space of two years, the 1st Defendant neither procured the allocation nor showed any evidence of having applied to the relevant authority for land allocation. Rather, the 1st Defendant was demanding for more money. The PW2 insisted on seeing the land, whereupon the 1st Defendant sent his staff to show her a plot of land which turned out to have a structure already on it. This made the PW2, Francisca Sambo, to resile from the transaction and demanded for a refund of her money. The 1st Defendant could not substantiate his claim that he applied for plots of land for the PW2.

Then at pg. 457, the Court found as follows:
I am convinced by evidence adduced at trial that the 1st defendant not only knew of the falsity of the pretense, but also had intention to defraud the PW2. It is also evidentially clear that the 1st Defendant induced the PW2, Francisca Sambo to transfer her whole interest in the money to him by making demands of money from her after disappointing her on the first land transaction for Wuye. I have no doubt from both the documentary and oral evidence that the offence of false pretense is proved beyond reasonable doubt.
It is therefore, my finding, and I so hold, that the prosecution has established all the essential ingredients of the offence of obtaining by false pretense and has thus proved counts 1 and 2 of the charge against the 1st Defendant beyond reasonable doubt.

The offence of obtaining property by false pretense is dealt with by the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. False pretense is defined as follows:
“false pretense” 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 to be true. 1(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”.

The elements of the offence are as contained in the charge. It would be recalled that the main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed, such a charge will be good in law. See Akang v. State (1971) NSCC Vol. 7 55; Ozo v. State (1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565; Njoku v. State (1993) 6 NWLR (Pt. 299) 272; Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167.

The charge of obtaining property by false pretense must be proved beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011. The ingredients of the offence were itemized in the case of Darlington v. FRN (2018) LPELR–43850 (SC), where Eko, JSC, held as follows:
“The offence of obtaining by false pretense created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts: I. A pretense is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is a pretense. V. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation, the accused induced the victim to deliver or transfer some other person. VIII. The property transferred is capable of being stolen i.e. is asportable. These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: Onwudiwe v. FRN (2006) All FWLR (Pt. 319) 774 at 779–780; (2006) 10 NWLR (Pt. 988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct”.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

In the instant case, the appellant was said to have collected a sum of N10,000,000 (10 Million Naira) from the PW2 by false pretense claiming to be close to the Hon. Minister, FCT and could influence the allocation of a plot of land in Abuja. There is no denying the fact that the appellant collected a sum of N10 Million from the PW2 as alleged. He was making arrangement to pay back the money when the chips were down. The prosecution at the trial Court was able to prove this allegation beyond reasonable doubt. There is no successful defence by the appellant and this Court having looked into the finding of the trial Court is convinced that the charge is proved beyond reasonable doubt as alleged. The offences in Counts 1 and 2 are truly proved beyond reasonable doubt and the findings of the lower Court in that respect cannot be faulted. This issue as touching counts 1 and 2 of the charge is therefore, resolved in favour of the respondent.

​In respect of counts 3 and 4, the charge is for issuing dishonoured cheques. The offences of dishonoured cheques are under Section 1(1)(b) of the Dishonoured Cheques Offences Act, 2004. Section 1(1) of the Dishonoured Cheque (Offences) Act, ​provides thus: “1. Any person who – (a) Obtains or induces the delivery of anything being stolen either to himself or to any other person, or (b) Obtains credit for himself or for 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 fine. (ii) in the case of a body corporate, be sentenced to a fine of not less than N5000. While Section 2 provides that: 2. Where any offence under this act by a body corporate is proved to have been committed with the consent of or connivance of, or to be attributable to any neglect on the part of any director, manager, secretary or other similar officers, servants or agent of the body corporate (or any person purporting to act in any such capacity), he as well as the body corporate shall be deemed to be guilty of the offence and may be proceeded against and punished in the same manner as an individual.
To establish the offence, the prosecution must prove the following elements; that the appellant obtained credit by himself, that the cheques was presented within 3 months of the date thereon; and that on presentation, the cheque was dishonoured on the grounds 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.

​In the instant case, the record before us shows clearly that the appellant drew two cheques of N5 Million each and the two of them were dishonored because there were no sufficient funds to the credit of the appellant. The appellant must as a duty place before the Court a credible evidence to counter the case of the prosecution. In the instant case, the lower Court found no credible evidence from the appellant to dismantle the case made against him by the prosecution. The simple truth here is the fact that the prosecution proved the case against the appellant beyond reasonable doubt. The lower Court was therefore right to have found the appellant guilty on the 3rd and 4th counts of the charge.

It follows therefore, that this issue is resolved in favour of the respondent in respect of counts 3 and 4.

From the foregoing consideration therefore, it is my firm view that this appeal is lacking in merit. The appeal is accordingly dismissed. The decision of the lower Court delivered on the 3rd June, 2019; in Charge No: FCT/HC/293/2016, is hereby affirmed along with the conviction and sentences.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the opportunity of reading before now, the lead judgment just delivered by my learned brother, STEPHEN JONAH ADAH, JCA.

I agree with the reasoning and conclusion of my learned brother.
I too uphold the judgment of the trial Court in Charge No: FCT/HC/293/2016, delivered on 3rd June, 2019.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had the privilege to read before now, the lead judgment of my learned brother, STEPHEN JONAH ADAH, JCA and I agree with the conclusion reached therein. I therefore also dismiss the appeal and affirm the decision of the Court below delivered on the 3rd June, 2019; in Charge NO. FCT/HC/293/2016.

Appearances:

Prof. Agbo J. Madaki Esq., with Ayo Akan Esq., For Appellant(s)

Respondent served but not represented in Court. For Respondent(s)