Daniel Okweji V. Federal Republic of Nigeria (2003)

LawGlobal-Hub Lead Judgment Report

IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A. 

The Appellant was convicted of an offence under Section 1(a) of the Advance Free Fraud and Other related offences contrary Act No.13 of 1995 in that he defrauded the prosecutor Ifesinachi Industries Ltd. to the tune of N60000.00 by falsely pretending that he would procure for the company through auction sale a 26/24 Break down Reco vehicle, and which vehicle he never procured. Both sides gave divergent stories as to what really transpired.

The Respondent i.e. the Prosecutor’s case was that the Appellant induced Igwe James Mamah or his company to give him the sum of N55000 to use in making necessary arrangements for the purchase of the vehicle. Later the Appellant had collected further N200000 and finally N25000.00 on other different occasions. Later the Appellant came and told P.W.1 that he bought the vehicle for N600000 and when P.W.1 sought to give a cheque of N500000 the appellant refused and opted for a draft which P.W.1 made out a sum of N400000 in Orient Bank draft and a sum of N100000 in cash – all making a total of N600000 which P.W.1 claimed to have given the appellant on various occasions ostensibly for the purchase of the vehicle. Notwithstanding this amount given out for buying the vehicle, no vehicle was supplied.

The Appellant on the other hand said that it was P.W.1 who saw the vehicle first and sought to find out from him how the appellant could help him to purchase a 26/24 Retrievable vehicle. He went on to state that when he saw one he contacted P.W.1 who contacted his manager in Lagos and who accompanied the appellant to the Federal Fire Service at Oju-Elegba Lagos to inspect the vehicle. There and then they were told that the sale price was N600000. The Appellant claimed that the sum of money advanced to him was for the boarding of vehicle in readiness for the auction sale. Later when he went to Abuja to pay for the vehicle, he was informed that the vehicle was not allocated to him, the Minister of Works then saying that there would be a competitive bidding process. Even after the price tag was set higher than was hitherto represented by the owners, P.W.1 still, asked the appellant to bid for N1,000,000. Even at that, they could not purchase the vehicle. This angered P.W.1 who caused him to be arrested, even though he P.W. quietly went and bought that same vehicle from the persons who succeeded in buying it at an auction sale.

It would seem that from the date of arrest and detention to the end of the trial, the Appellant had spent about 3 years in prison. However on conviction he was sentenced to a total of 10 years without the court taking into consideration the number of years he had been incarcerated before the end of the trial.

Dissatisfied with the verdict and the nature of the sentence the appellant then as a prisoner appealed to this court and from the grounds of appeal framed 5 issues for determination, which are;

“(1) Whether there was a valid charge before the Court for obtaining by false pretences in accordance with the definition in section 23 of the Decree No. 13 of 1995.

(2) Whether there had been a satisfactory evidence of investigation of this case in the absence of evidence of the Police Investigation Officer Cpl. Samuel Egbuna and or his written Police Investigation report being tendered in his absence.

(3) Whether it can be said by the totality of evidence on record in this case that the prosecution proved its case beyond reasonable doubt.

(4) Whether a Trial Judge who had transferred a case out of his court to another court after a heated argument during proceedings can justifiably retract the order of transfer on the Application of the Prosecution without hearing the defence on the point.

(5) Whether the sentence was excessive in this case in the light of the evidence before the court.”

The Respondent on its part waived off as irrelevant and therefore uncalled the issue as to whether there was a valid charge and whether there was a satisfactory Police investigation of the case. Four issues were made out by the Respondent for the consideration of the court.

“1. Whether the trial Judge was right in believing the P.W.1 and holding as he did that the Appellant caused P.W.1 to part with N600,000 by deceiving him that he the Appellant had bought a vehicle for P.W.1 for that amount.

2. Whether the misrepresentation made by the Appellant to P.W.1 that he had bought a vehicle for N600,000 for him, which caused P.W.1 to give the sum of N600,000 to the Appellant, is sufficient to ground a conviction under section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Decree No.13 of 1995.
3. Whether on the totality of the evidence the Prosecution proved its case beyond reasonable doubt.
4. Whether the sentence was excessive.”

I must here state that it is unheard of for an appellant in a criminal appeal to frame an issue as to whether or not a satisfactory investigation was done in the case. It may be a matter for comment by the court of trial and the appellate court. It is no business of any court to arrogate to itself the supervisory power of ascertaining whether an offence was properly investigated. It is the duty of the prosecution aided by the security agency known as the Police to conduct investigations. I have to take judicial notice of the Police Act. Section 4 of the Police Act states as follows:

“The Police shall be employed for the prevention and detection of crime the apprehension of offence, the preservation of law and order, the protection of life and property and the due enforcement of all laws and regulations with which they are directly charged, and shall perform military duties within and without Nigeria as may be required by them by or under the authority of this or any other Act.”

The taste of the pudding lies in the eating of it. I would vouch safe to say that where an accused is discharged and acquitted by any court, the inference may be that the investigation was not well conducted depending of course on the nature of the offence. For an offence which the Police investigates and finds it difficult to crack because of few leads and therefore not much substantial evidence, may not be described as not having been properly conducted.

On the other hand when there is a conviction there is a presumption – though irresistible – that the investigation was well conducted. This point raised by the appellant to my mind is a non-issue as it is merely begging the question.

On the issue as to the validity of the change while it was not well expatiated by the appellants counsel, it is a settled law that what the prosecution should prove is the intent to defraud by taking into consideration the totality of the circumstances in respect of a particular case. If one obtains money from another by a representation which later facts reveal, that it was made to deprive someone of his money, illegally then it means that right from the word go he had intent to defraud.

It must be understood that the offence under Advance Free Fraud has its inception from Section 419 of the Criminal Code. It is due to the insidious and get rich quick mentality of some Nigerians who feel that it would be to their advantage to acquire ill-gotten wealth by a method seen to be so nauseating and reprehensible and utterly revolting that it was more or less affecting our economy and giving the country a bad name that the legislature decided to amplify the offence of false pretences by making the enactment, as foreign investors have refused to invest in this country due to the shabby reputation we are acquiring as a nation of thieves and scoundrels. I have compared the format or indictment i.e. charge under this sort of offence with the one in Arch bold and Aguda and with due respect I do not feel anything bad or out of ordinary in the nature of the charge. Therefore the charge is in order, as I do not believe that the charge is invalid. Section 23 of the Act prescribing the offence states as follows:

“False pretences 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.”

The important point in issue No.3 that is whether on the totality of evidence the offence was proved beyond all reasonable doubt. The real point being made by the appellant’s counsel is that in accordance with the charge the Appellant was given a sum of N6000000 but P.W.1 said he gave out a sum of N595000 -leaving a balance of N5000. His counsel submitted that which such state of uncertainty as to the amount said to have been given, the court ought to have resolved in favour of the appellant.

Now in his evidence in Chief the P.W.1 narrated how after the Appellant collected the money ostensibly to use same to pay for the vehicle he vanished and could not be traced in Lagos and it was instead in Onitsha that he was seen and when he enquired from him as to what happened, he said the price now had escalated to 1.2 million. The appellant at the insistence of P.W.1 went with him to the Police and he wrote a document where he undertook to pay P.W.1 the money.

P.W.1 informed the court below that the appellant said he left the vehicle he bought in the home of one Alhaji. What intrigued me about this case is this if the price of the vehicle had risen to N1.2 million and the appellant could not buy it with the money he was given why did he not return the money to the owner. Why did he write an undertaking to pay back the money? Even P.W.2 the Investigating Police Officer said in his evidence that the appellant had promised to pay the money even at the Police when under arrest yet he failed to pay the money. P.W.2 said that after the Police bail granted the appellant bail jumped bail.

In his evidence during the cross-examination the appellant stated that out of the sum of N40000 in draft he gave N20000 to Engineer Kareen, a sum of N380, 000 to Bamaiyi of the Mechanical Department and so on and that the moneys paid out were for public relations only. If that was so, why then did he ask P.W.1 to make up the money given to him to N1.2million which he further said was the actual price of the vehicle. If the sum of N400000 was merely for Public relations then it meant that not a kobo given to him was to be spent in actual purchase. In that case P.W.1 must necessarily have to cough out the whole N1.2million, which was now said to be the price of

the vehicle. In relation to the document he signed at the Police, which he said he signed under duress, he said that he signed it because he did not want to be further detained. Earlier in his evidence in chief the witness narrated that he got to know P.W.1 in 1986 and had in fact been responsible for purchasing two (2) 33000 tankers from a company called O.G. P in Ijebu Ode and at another time 21621 Mercedes vehicle and its engine. The receipts of such purchases were tendered through him but witnesses tendered only photocopies of the so-called receipts (they were of course rejected) No effort or attempt was made to show the whereabouts of the original documents. The appellant had told the court below that he told P.W.1 that the sale price was N600000. He said and I quote him;

“…P.W.1 wanted to give me cash I declined and asked him to give me a Cheque…… He wrote a letter authorizing Ephriam to arrange a Bank draft for me…”

The appellant for reasons best known to him did not even make any mention of monies given to him at various times for the purpose of purchasing the vehicles. Interestingly though he told the court below that it was P.W.1 who asked him to quote N1 million. In his over view of the case, the learned trial Judge said;

“I accept that the accused was making effort to arrange for a vehicle as those exhibits show but I also believe that these efforts were when accused had collected N500,000.00 from the P.W.1 on the representation that he had bought the vehicle. He thus first collected the money on the false representation that he had bought the vehicle and then started searching for a vehicle.

Accused said he gave the sum of N500,000 to Government officials. He did not give the names of those people to the Police in his statement, Exhibit ‘C’ nor did he call them to testify. It has to be recognized, of course, that if it is true that those persons collected gratification from the accused, they would not make enthusiastic witnesses, but on the other hand in Exhibit ‘C’ the accused said after collecting N400,000, he went to pay for the vehicle but found its price had risen, while before the court his evidence was that he gave N20,000 of the money to Engr. Kareem upon his arrival in Abuja Later in order to convince P.W.1 that he had bought the vehicle, he told P.W.1 that the vehicle was at the house of one Alhaji waiting to be collected by P.W.1 whereupon P.W.1 told him that as he P.W.1 had paid for it the accused should collect it.

The accused weaved story of part fact and part fiction in his defence.”

On the so-called confessional statement, which was admitted, there was no ground of appeal complaining of its admissibility.

The court below, which heard the evidence and drew its own conclusion, seems to me to have carefully considered the case very correctly. I believe that if P.W.1 had been told that the money he was giving out was merely for public relations (otherwise a gratification) only, I doubt whether he would have parted with such a large amount of money. The evidence of the accused on the pertinent issues was woolly and cloudy. He was not able to tell the court anything about the first sum of money advanced to him. He did not tell the court how much he received, even-though he had represented to P.W.1 that he had a vehicle he could buy for N600000, it turned out that after he collected the money he proceeded to use another person’s money for purely public relations. The evidence of P.W.2 and P.W.3 are merely as to character and does not address the pertinent issues in controversy.

The learned counsel for the appellant said that the case was not proved beyond all reasonable doubt. Now what does this expression mean. First it must be stated without mincing the words that the expression does not import beyond all uncertainties or gospel truth but rather as to the facts elucidated in the evidence stands, any doubt that might exist robs it of such a proof.

Where the appellant at the trial stage of the case due to his sloppiness is unable to make any dent in the prosecution’s case but shows a defence some what manifestly chaotic and obtuse in language and presentation that is shun of all credibility then it can be said that the case has been proved beyond all reasonable doubt. Now the question whether the prosecution had proved the commission of an offence beyond all reasonable doubt is arrived at the conclusion of the trial when the court takes a holistic approach and examines every item of evidence given at the trial. A verdict here after given would show the application of good sense, which demonstrates an uncanny merciless scrutiny of the prosecution case. See Tulu v. Bauchi N. A. (1965) NMLR 343; R. Odutola Brothers (1937) 13 NLR 174; Rahman v. Commissioner of Police (1973) NMLR 87. Indeed as I said earlier such a proof needs no high degree of certainty but a high degree of probability. In the realms administration of justice in this plane, it will be asking too much of the prosecution to show a proof which would be equal to what only the angels can appreciate. The proof here is the type that most ordinary humans would understand and which would readily be understood by reasonable mortals who recognize that justice has been done. But having said that, I must stress that it takes a strong and convincing evidence to prove anything beyond all reasonable doubt. Thus it was held in Abioye v. The State (1987) 2 NWLR 647, that in a criminal case if the conclusion reached is only a reasonable conclusion but not the only irresistible inference the guilt of the accused cannot be grounded on it. It is settled that proof beyond any reasonable doubt is a proof that completely exclude’s any reasonable hypothesis except that which it tends to support it. It is proof which when viewed from any angle is consistent with the guilt of the accused and obviously inconsistent with any other rational hypothesis and it is a proof that is not susceptible to any other interpretation other than proof of the guilt of the accused and cannot be in line with any other proposition.

The case of the Appellants is laced with patent falsehoods and improvisations. Consider for example that he did not state what happened to the money given to him aside from the sum N400,000. How credible is it that he used a sum of N400,000 for merely public relations, which was not to the knowledge of P.W.1. He rigmaroled a lot in his bid to exculpate himself. The rambling that is characterized of his evidence releases a tissue of lies and made his evidence an affront to reason and intelligence. He squarely to my mind intended to convert the money and bamboozled every body with his tale. This reminds me of what William Ethwart Shakespear said in Macbeth “It is like a tale told by an idiot full of sound and fury signifying nothing.

In my view, the learned trial Judge who admitted the exhibits which are largely useless, demonstrate fairness of trial and gave the appellant enough opportunity to marshal out all his case properly. He carefully and meticulously subjected the facts to a pitiless scrutiny to arrive at his decision. In the circumstance I believe that the case was proved beyond all reasonable doubt.

On the question of sentence. It would appear that, prior to the date of conviction, the appellant had been detained for 3 years previously. In that case fairness and good sense of justice demands that whatever sentence he was given should be less than the 3 years he had been in custody. I therefore hold that the sentence of 10 years should be minus the 3 years already suffered. Therefore on the issue of conviction the appeal is dismissed and the decision of the trial court is affirmed.

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Other Citations: (2003)LCN/1355(CA)