Dennis Ede & Anor V. The Federal Republic of Nigeria (2000)

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UBAEZONU, J.C.A. 

The two Appellants were convicted on a two count charge by the Miscellaneous Offences Tribunal, Eastern Zone holden at Enugu and sentenced to 10 years imprisonment. The charges against the Appellants were one of conspiracy and another of obtaining money under false pretences contrary to S.8(a) and 1(a) respectively of the Advance Fee Fraud and other Fraud Related Offences Decree No.13 of 1995 and punishable under S.1(3) of the said Decree. Against the said conviction, the Appellants have appealed to this Court.

The brief facts of the case as alleged by the prosecution were that the 2nd Appellant having obtained the telephone number of P.W.1 (Cosmas Iro), the victim of the fraud, telephoned him several times posing that he was phoning from South Africa.

The 2nd Appellant told the P.W.1 that his company wanted precious stone known as granite permude used in the production of jewelry and ornaments. He thereupon directed P.W.1 to see the 1st Appellant whom he described as Engineer Okoye, at the 1st Appellant’s residence at No.12B Akutu Crescent, Independence Layout, Enugu. The 2nd Appellant also provided P.W.1 with 1st Appellant’s telephone number as a dealer in the precious stone. Subsequently, they struck a deal to meet at the Nike Lake Hotel with the 2nd Appellant’s Manager Koffi Mbila. At the Hotel, P.W.1 showed Koffi Mbila two pieces of the so called granite permude which he had earlier bought from the 1st Appellant. Koffi Mbila certified the same as good. Eventually, P.W.1 paid the 1st Appellant in his house at Akutu Crescent, a sum of money said to amount to N450,000 for the worthless granite permude. When it became clear to P.W.1 that the transaction was a fraud, he demanded of 1st Appellant the refund of his money. Initially, 1st Appellant agreed but later started to avoid P.W.1. The matter was thereupon reported to the Police. The Appellants were accordingly arrested and charged to the Tribunal.

The Appellants filed four grounds of appeal from which 1st appellant formulated three issues for determination while the 2nd appellant formulated two issues. The issues formulated by 1st appellant are as follows:

“1. Whether by credible admissible evidence the prosecution proved the offence of (1) (sic) conspiracy and of false pretences with intent to defraud contrary to section 1(3) and section 1(a) of the Advance Fee Fraud and other Related Offences Decree No. 13 of 1995 beyond reasonable doubt?

2. Whether the identity of the 1st Appellant was lawfully established to warrant his conviction?
3. Whether the prosecution discharged the onus on it to dislodge the plea of Alibi of the 1st appellant?”

The issues formulated by the 2nd Appellant are as follows:

“1. Whether the trial Judge was right to hold that visual identification evidence of the prosecution which he believed destroyed the defence of Alibi of the 2nd Appellant when such Alibi was not investigated?.

2. Whether it was right for the trial Judge to hold that the prosecution had proved its case beyond all reasonable doubt when the Alibi of the 2nd Appellant which was set up timeously as evidenced by his extra-judicial statement to the Police Exhibit ‘D7′ in the record was not investigated at all and when prosecution’s case was fraught with doubts?”.

Arguing his issues Nos. 1 and 2 together, learned Senior Counsel for 1st Appellant submits that identity of the 1st Appellant was not established. The 1st Appellant, it is submitted, denied knowing P.W.1 or the 2nd Appellant. There is no credible evidence of any transaction between 1st and 2nd Appellants or with Mr. Koffi Mbila. Counsel says that, there is no evidence that N500,000 was withdrawn from any bank or that the 1st Appellant received any money from any person. He submits that there is doubt in the case of prosecution and refers to Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538; (1987) 7 SCNJ 238.

Arguing his 3rd issue, Counsel submits that 1st Appellant set up an alibi which was not investigated by the Police. The Appellant said that he was at Lagos at the time of the crime but the Police failed to investigate the same -See Onofowokan v. The State (1987) 3 NWLR (Pt.61) 538. Counsel also refers to Michael Hausa v. The State (1994) 6 NWLR (pt.350) 281; (1994) 7-8 SCNJ 1.

Like the 1st Appellant’s Counsel, learned Counsel for 2nd Appellant submits that once an accused person sets up an alibi timeously and gives full particulars of his whereabouts the alibi must be investigated – See Ikemson v. The State (1989) 1 TLR 73; (1989) 3 NWLR (Pt.110) 455. Failure to investigate the alibi so set up raises a doubt as to the guilt of the accused. Counsel refers to Onafowokan v. The State (supra); Onuchukwu v. The State (1998) 4 NWLR (Pt.547) 576; (1998) 58 LRCN 3392.

It is contended that the finding of the lower Court that visual identification of 2nd Appellant neutralised his alibi was in error. Counsel also refers to Njovens v. The State (1973) ANLR 371 and submits that the facts of that case are distinguishable from the facts of this case. See also Eze v. The State (1976) 1 SC 125.

On proof beyond reasonable doubt, Counsel submits that the prosecution did not so prove its case. There is no corresponding duty on the part of the defence to prove its innocence – See Oteli v. The State (1986) ANLR 321; Miller v. Minister of Pensions (1947) 2 All E.R. 372 – 3. Counsel says that no N500,000 was paid to the 2nd Appellant.

The Respondent adopts the Appellants’ issues and submits that as the charge is one of obtaining good/money by false pretences the ingredients of the offence which the prosecution must prove to get conviction are as follows;