Leonard Duru V. Federal Republic Of Nigeria (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH SHAGBAOR IKYEGH, J.C.A. (Delivering the Leading Judgment)

INTRODUCTION This is a Criminal Appeal. FACTS The appeal emerged from the decision of the High Court of Justice of Lagos State (the Court below) whereby the Court below convicted and sentenced the appellant to ten (10) years in prison in aggregate for the offences of conspiracy to obtain money by false pretence, obtaining money by false pretence, forgery and uttering false document. The case against the appellant at the Court below was presented through eleven (11) witnesses and seventy-one (71) documentary Exhibits, whilst the appellant tendered eight (8) documentary Exhibits through the witnesses called by the respondent and rested his case on the evidence for the respondent.

The mainstay of the evidence against the appellant was that the appellant acted in league with other persons and obtained various sums of money totaling $397,800 from one Mr. Puchstein, a German, on the pre that Mr. Puchstein’s company, Deramic Company, would be awarded a contract to supply and install computers, printers and office equipment to the Federal Ministry of Mines and Power which was never awarded, nor the monies so obtained by the appellant returned to Mr. Puchstein; and that the appellant forged/uttered a false document relating to the alleged transaction. The appellant rested his case on the case presented by the respondent.

The Court below accepted the one way evidence for the respondent upon which it convicted and sentenced the appellant to 10 years in prison cumulatively for the offences indicated earlier in the discussion. The appellant was unhappy with the decision of the Court below. He filed a notice of appeal with six (6) grounds of appeal questioning the said decision.

ISSUES FOR DETERMINATION The appellant submitted these issues for determination in the appeal – (a) Whether the Learned Trial Judge properly construed and applied the effect and purport of the decision of the Supreme Court in MICHEAL IJUAKA v. C.O.P. (1976) 6 & 7 SC, PG.99 @ PP.102 – 105, in the Judgment of the Lower Court, which convicted the Appellant for the commission of the offences in Counts 1, 5, 6, 15, & 16, the Respondent having failed to establish at the trial, that the operative influence on the mind of PW2, adduced in evidence at the trial, was the same as that stated in Counts 1, 5, 6, 15 & 16 of the Amended Charge? (This Issue was distilled from Ground 1 of the Notice of Appeal).

(b) Whether the Learned Trial Judge having expressed a desire to impose the minimum sentence imposed by law on the Appellant, erred, by imposing a sentence of 10 years imprisonment provided under a repealed law on the Appellant, for the offences in Counts 1, 5, 6, 15 & 16, despite the existence of a law in force, at the time of conviction, which provided a minimum sentence of seven years imprisonment? (This Issue was distilled from Ground 2 of the Notice of Appeal).

(c) Whether the Learned Trial Judge erred in law in convicting the Appellant for the offences of Forgery and uttering in Counts 31 & 32, in view of the failure to establish same against the Appellant by the Respondent at the trial? (This Issue was distilled from Ground 3 of the Notice of Appeal).

(d) Whether the Learned Trial Judge properly evaluated the evidence adduced at the trial with respect to the offences for which the Lower Court convicted the Appellant in Counts 1, 5, 6, 15, 16, 31 & 32, appealed against herein by the Appellant? (This Issue was distilled from Grounds 4 & 5 of the Notice of Appeal). HELD On the whole, the Court found the appeal lacking in merit and hereby dismissed it. The Court also affirmed the conviction and sentence of the appellant.

It was submitted on the first issue (supra) that the operative influence or inducement that led the victim of the crime alleged in counts 1, 5, 6, 15 & 16 of the charge sheet in pages 3, 6 & 7 of the additional record of appeal (additional record) to part with the sum of money aforementioned was that the monies represented the cost of processing the award of a contract No. FMMEP/131/FCN/94 by the Federal Ministry of Mines and Power, which representation was false which was at variance with the evidence of PW2, the alleged victim of the crime, and Exhibits P4 and P7 contained in pages 26 – 28 and 38 of the record of appeal (the record) which documentary evidence should be preferred to oral evidence and that the Court below was wrong in convicting the appellant for the offences stated in the said counts of the charge sheet in defiance of the binding decisions of the Supreme Court in that wise vide the cases of Ijuaka v. C.O.P. (1976) 6 – 7 SC 99 at 102 – 105, Awobotu v. State (1976) 4 SC 27 at 58 – 59, R. v. Barker 5 Cr. App. R. 285, Ligali and Anor. v. Queen 4 F.S.C. 7, African Newspapers Nigeria Ltd. v. F.R.N. (1985) 2 NWLR (pt.6) 137, Osakue v. Federal College of Education Asaba (2010) All FWLR (pt.522) 1601 at 1625, Okonjo v. Odje and Ors. (1985) 10 SC 267 at 268 – 269, Eke v. F.R.N. (2013) All FWLR (pt.702) 1748 at 1804, Aiki v. Idowu (2006) All FWLR (pt.293) 361, Akinbisade v. State (2007) All FWLR (pt.344) 17, Nguru v. Mobil Producing Nigeria Unlimited (2013) All FWLR (pt.677) 665 at 689, Mandilas and Karaberis Ltd. v. Otikiti (1963) 1 All NLR 22, Cap Plc v. Vital Investments Ltd. (2006) All FWLR (pt.342) 1502 at 1542, Kimdey v. Military Governor, Gongola State (1988) 2 NWLR (pt.77) 445, Fashanu v. Adekoya (1974) SC 83.

It was submitted on the second issue (supra) that in light of the fact that counts 1, 5, 6, 15 and 16 of the charge sheet were laid under the Advance Fee Fraud and Other Related Offences Act, No. 13 of 1995, as amended by Act No. 62 of 1999 (Act No. 62 of 1999), the law in force at the time the offences were allegedly committed, the conviction and sentence of the appellant having been made after the repeal of the Act No. 62 of 1999 which was replaced with the Advanced Fee Fraud and Other Related Offences Act, 2006 (Act of 2006) which provides for lesser minimum sentence of 7 years in prison in Section 1(3) thereof instead of the 10 years in prison provided by Act No.62 of 1999, the Court below was wrong in sentencing the appellant to 10 years in prison under the repealed enactment.

It was argued on the third issue that the Court below having found that there was no evidence showing the appellant personally forged any document it was perverse and wrong for the Court below to have speculated and convicted the appellant of forgery and uttering a false document on the speculative premiss that the appellant was a participis criminis to counts 31 and 32 of the charge sheet relating to forgery and uttering a false document, respectively, when the said essential ingredient of the two offences were not proved beyond reasonable doubt vide the cases of Alaka v. State (1991) 7 NWLR (pt.205) 567, Smart v. State (1974) SC 173, Osondu v. F.R.N. (2000) 12 NWLR (pt.682) 483, Pam v. Mohammed (2008) All FWLR (pt.436) 1868 at 1937, Omidiora v. F.C.S.C. (2008) All FWLR (pt.415) 1807, Odubeko v. Fowler (1993) 9 SCNJ 185, Ajibade v. State (2012) All FWLR (pt.610) 1381 at 1399, Wuyah v. Jamaý??a Local Government Kafanchan (2013) All FWLR (pt.659) 1171 at 1193 – 1194, Gaji v. Paye (2003) FWLR (pt.163) 1377 at 1393 – 1397, Pius v. State (2015) All FWLR (pt.780) 1270 at 1279, Nweke v. State (2001) FWLR (pt.40) 1595, Jegede v. Oluwasesan (2013) All FWLR (pt.671) 1484 at 1506 – 1507, Yakubu v. F.R.N. (2009) All FWLR (pt.498) 387 at 410, Daggash v, Bulama (2004) All FWLR (pt.212) 1666.

It was argued on the fourth issue that the Court below did not properly evaluate the totality of the evidence adduced before it; that had the Court below properly assessed the evidence it would have found as a fact that there was no nexus of conspiracy between the appellant and the other two persons, Dr. Jubril Bello and Dr. Elvis Timothy, respecting the count of conspiracy against the PW2; that the Court below would have also found as a fact based on Exhibits P19 and P20 that the payments made therein were for travel expenses which Exhibits P51 and P63 showed were paid into the account of one Emmanuel Obieze with respect to counts 6 and 16 of the charge sheet; also, that had the Court below properly evaluated the evidence it would have found that Exhibit P38 did not contain evidence of transfer of money made by a Frank Berger on behalf of the PW2, nor did the PW2 in his evidence and Exhibit P7 make mention that the payments contained in Exhibits P19 and P39 had nexus with the PW2 and the person named therein as the party that made the payments; and that in view of the fact that the Court below had reached the conclusion in its judgment that the appellant had nothing to do with Lecon Pharmacy Limited which the Court below had acquitted of the offences charged in counts 6 and 16 of the charge sheet, the Court below had no basis to rely on the same evidence it had used in acquitting Lecon Pharmacy Limited to convict the appellant vide the cases of Nadi v. Oseni (2003) 48 WRN 12 at 33, State v. Salawu (2012) All FWLR (pt.614) 1 at 30 – 31, Adekunle v. State (1989) 12 SCNJ 184, Lawson v. State (1975) 4 SC 115, Nwosu v. State (2004) All FWLR (pt.218) 916, Alo v. State (2015) All FWLR (pt.775) 262 at 293, Woluchem v. Gudi (1986) 5 SC 291, Sunday v. State (2013) All FWLR (pt.700) 1396 at 1411.

It was also submitted that irrespective of the stance by the appellant to rest his case on the respondent’s case, the respondent as the prosecutor at the Court below had the burden of proving the allegations in the charge sheet beyond reasonable doubt vide the cases of Adeyeye v. State (2013) All FWLR (pt.704) 108 at 111, Ali v. State (2012) All FWLR (pt.610) 1313 at 1331, therefore it was not the duty of the Court below to demand an explanation from the appellant on his relationship with one Frank Berger which led to the transfer of the monies in Exhibits P19 and P39, particularly as the appellant had demonstrated through the cross-examination of PW2 and Exhibits P4 and P7 that the PW2 never mentioned such a relationship or given instruction for the transfer of the monies and that there was, therefore, insufficient evidence of such relationship to warrant the conclusion made by the Court below in convicting the appellant on the basis of such relationship vide the cases of EFCC v. Akingbola (2015) All FWLR (pt.777) 656 at 698, Ali v. State (supra) at 1349 – 1351, Yahaya v. Sarki (2012) All FWLR (pt.656) 458 at 464.

It was further argued that the Court below was wrong to hold in page 625 of the record that the bank account said to belong to the appellant having been nominated to PW2 by a Mr. Victor Odozie and a Dr. Jubril Bello, meant that the appellant was part of the scheme to defraud PW2 as a co-conspirator; and that the alleged identification of the appellant by the PW2 and PW3 having been already discountenanced by the Court below as not having been properly done the Court below was wrong to rely on the unsubstantiated facts to draw the inference that the appellant was guilty of the offences in counts 1, 5, 6, 15, 16, 31 and 32 of the charge sheet when there were other inferences from the evidence showing the innocence of the appellant vide Mabogunje v. Adewunmi (2006) WRN Vol. 19 page 112 at 139 – 140 and Oraetoka v. Ajia (2006) All FWLR (pt.321) 1312 at 1323.