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

LawGlobal-Hub Lead Judgment Report

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;

i. That the representation made by the accused is false – See Okoro v. Attorney-General of Western Nigeria (1966) NMLR 13.

ii. That the representation operated in the mind of the person from whom the money was obtained – See Oshun v. DPP (1965) NMLR 357.

iii. That the pretence or representation was false to the knowledge of the accused or that the accused did not know the representation as true – See Nwokedi v. Police (1977) 3 SC 49 at 80 – 81.

iv. That the representation was made with intent to defraud – See The State v. Bassey Edet & Anor (1964) 8 ENLR 41; Awobotu v. The State (1976) 5 SC 49 at 80-81.

Counsel submits that all the elements of the offence were present in this case.

On the issue of conspiracy, it is submitted that there was evidence of conspiracy between the 1st and 2nd Appellants and one Mr. Okafor and the fictitious Kofffi Mbila. From the evidence of P.W.1, when 2nd Appellant got him on the phone, it was to the 1st Appellant that he was directed to for the purpose of purchasing the ‘granite permude’. It was the 2nd Appellant that supplied the P.W.1 with 1st Appellant’s address and telephone number. It should also be noted that when the P.W.1 met the 1st Appellant, he readily admitted having granite permude and went ahead to sell the worthless stones to the P.W.1 in furtherance of the conspiracy between himself and the other fraudsters. He even promised to refund P.W.1’s money if the business failed but went back on this promise. It is noteworthy that the 2nd Appellant was seen by the P.W.1 in the house of the 1st Appellant while the unholy transaction was going on. The act of the 2nd Appellant in linking the P.W.1 with the 1st Appellant and the fact that he is a dealer in granite permude as related to the P.W.1 by the 2nd Appellant was evidence of a carefully planned and executed conspiracy between the two appellants and their gang.

As to the identity of the 2nd Appellant, it is submitted that the evidence of P.W.1 was that he dealt with the 2nd Appellant. Both men had several meetings. There can be no question of mistaken identity. As regards the defence of alibi put up by 1st appellant, counsel submits that it is not enough for accused person to say that he was somewhere other than the scene of the crime. He must give the address of the place and the time he was there so as to enable the Police to investigate – refers to Ikemson v. The State (supra); Salami v. The State (1988) 3 NWLR (Pt.85) 670. Furthermore, it is submitted that where there is positive credible evidence fixing the accused at the scene of the crime, the prosecution has no further duty to call other evidence to rebut the purported alibi – See Ibrahim v. The State (1991) 4 NWLR (Pt.186) 413; (1991) 5 SCNJ 129 at 140; Orimoloye v. The State (1984) 10 SC 138. As regards the 2nd Appellant, he said that he was in his village which was about 30 minutes drive from Enugu the scene of the crime. Evidence of the prosecution positively fixed him at the scene of the crime.

In Court, learned Counsel for 1st Appellant adopted his brief and referred to Alabi v. The State (1993) 7 NWLR (Pt.307) 511; (1993) 3 SCNJ 109 at 117 – 123. Counsel for 2nd Appellant and Respondent also adopted their respective briefs.

The two issues for consideration in this appeal are whether the prosecution proved its case beyond reasonable doubts and whether the defence of alibi set up by the Appellants are sustainable?. A proof beyond reasonable doubts means that in law and in fact there is a proof that the Appellants committed the offences with which they were charged. Let me consider the facts first. The facts of this case from the sum total of the evidence led at the hearing present interesting features of highly skilled and well planned fraudulent manipulations. The 2nd Appellant, having obtained the telephone number of P.W.1, the victim of the fraud, phoned him several times posing to be phoning from South Africa. The 2nd Appellant represented to P.W.1 that his company in South Africa wanted to purchase a precious stone or metal known as granite permude used in the manufacture of jewelry and expensive ornaments. The 2nd Appellant directed P.W.1 to the 1st Appellant at his residential address at No. 12B, Akutu Crescent, Independence Layout, Enugu. The 2nd Appellant also provided P.W.1 with the 1st Appellant’s telephone number. The 2nd Appellant introduced the 1st Appellant by telephone to P.W.1 as Engineer Okoye, a dealer in the precious mineral – Granite permude. P.W.1 who was very rightly described by the trial Judge as a “foolish man …who in the quest of getting rich quick was easily tricked into parting with his money. With a little diligence he would have known that the whole deal was fake”. He foolishly rushed to the address at Akutu Crescent, where he met the 1st Appellant. P.W.1 at first, initially purchased two pieces of the alleged precious mineral. Meanwhile, and to complete the fraud, the 2nd Appellant phoned to inform P.W.1 that he had arrived Nigeria with one Koffi Mbilah is Purchasing Manager. The 2nd Appellant asked P.W.1 to meet him and his manger at the Nike Lake Hotel. They eventually met. After examining the two pieces, the P.W.1 had earlier purchased from the 1st Appellant, they (2nd appellant and Mbila) confirmed that they were genuine pieces of the precious granite permude but asked for 250 pieces instead of two. They asked P.W.1 to bring the remaining pieces and be paid in dollars immediately.

Consequently, P.W.1 rushed off, raised N450,000.00 and went back to 1st Appellant and bought more of the so called granite permude. P.W.1 dashed back to the Nike Lake Hotel but payment could not be effected because Koffi Mbila alleged that one Okafor an operator of Bureau De Change locked up his money and had rushed to Lagos to identify his brother who was involved in the Ejigbo air crash. When later P.W.1 rang up the Nike Lake Hotel, he was informed that the 2nd Appellant and Mbila had checked out. P.W.1 smelt a rat and demanded the refund of his money which the 1st Appellant promised to repay. When next P.W.1 got back to 12B, Akutu Crescent, the 1st Appellant was packing out of the premises. A dog was tied at the front gate to scare away visitors. Following a report to the Police, the Police laid a siege at night and arrested the 1st Appellant. The whole fraud burst open. All the telephone calls were made from the 1st Appellant’s house; the 2nd Appellant was never in South Africa. What is more, the alleged precious granite permude was a worthless substance. The 2nd Appellant was eventually arrested.

The scenario presented by the facts of this case is a most sophisticated form of false and fraudulent representation and obtaining money by such representation. It is what is called ‘419’ in the local parlance in this country. The 2nd Appellant who never was in South Africa during the period of this false and fraudulent representation phoned the P.W.1 probably from Enugu and induced him to part with his money to the 1st Appellant who was his colleague in the fraud. The 2nd Appellant falsely represented to P.W.1 that the 1st Appellant has a substance which turned out to be worthless and called ‘granite permude’. The P.W.1 having parted with his money to the 1st Appellant, the 2nd Appellant vermosed into thin air. The 1st Appellant was caught and arrested as he prepared to vermose from his premises at 12B Akutu Crescent. The 1st appellant, acting in concert with the 2nd Appellant represented to P.W.1 that the worthless substance he sold to him was the granite permude which the 2nd Appellant wanted to buy. Thus, all the representations made to P.W.1 by 1st and 2nd appellants were false to the knowledge of both Appellants. That is the first ingredient of the offence of obtaining by false pretences – See Okoro v. A.- G., of Western Nigeria (supra); See also Nwokedi v. Police (supra).

As a result of the false representation which P.W.1 believed to be true, P.W.1 parted with his money. P.W.1 thus acted on the false representation – See Oshun v. DPP (supra). It is obvious from the evidence that the false representations were made with intent to deceive and defraud – See The State v. Bassey Edet (supra), see also Awobotu v. The State (supra). Thus, the ingredients of the offence of obtaining by false pretences were present in this case. There were false representations from the beginning to the end; they were intended to be acted upon; they were acted upon by P.W.1 who parted with his money to his detriment by paying for a worthless material instead of a material for making jewelry.

Another aspect of this case which is worth considering was whether there was conspiracy between the 1st and 2nd Appellants. There is abundant evidence from which conspiracy could be inferred and from which the Tribunal rightly inferred conspiracy. It was the 2nd Appellant who directed P.W.1 to go to 1st Appellant to purchase the material. The 1st Appellant readily agreed that he had the material and sold same to P.W.1. There is evidence that when P.W.1 was seeking to recover his money from 1st appellant he (P.W.1) saw 2nd Appellant hovering in the premises of 1st Appellant at Akutu Crescent. The evidence of P.W.1 at pages 9 -10 of the record is as follows:

“When I reached the house (i.e. 1st appellant’s house), keeper told me that he (1st appellant) had gone out. I waited there up to 3.30 pm. He did not return. I then peeped through the security zone, I then sighted 2nd accused (i.e. 2nd appellant) Patrick Okafor who had earlier on told me that he did not know anywhere in Enugu as he was from South Africa. I rushed to the gate and got him.”

(Brackets and words therein mine for clarity).

Even the wife of the 1st Appellant contributed her own quota in the deceit, for when P.W.1 told her that the 2nd Appellant whom he (P.W.1) saw while peeping across the security gadgets must be looking for her husband, she readily offered a deceitful answer. She said:

“… no, the man must have missed his way”.

There is abundant evidence of conspiracy between the two Appellants. It is my view, as rightly held by the lower Court that the prosecution made out a case on both counts against both Appellants.

I shall now consider the defence of alibi set up by the Appellants. Each of the Appellants set up an alibi. By Exh. DP3 the 2nd Appellant said that he traveled to Lagos.

Apparently, in an additional statement dated the same 17/12/96 as the first one he said that he was with his brother at Lagos at the time the offence was committed at Enugu. It is the law that where an accused person sets up an alibi, the Police should investigate the truth or otherwise of the alibi. However, it is also the law that where there is visual and positive identification of the accused person by a witness whose evidence is believed by the lower Court, the appellate Court should not disturb such a finding. In this case, the P.W.1 saw and interacted with both appellants on several occasions in broad daylight both at No. 12B Akutu Crescent, Independence Layout, Enugu the residence of 1st Appellant and at the Nike Lake Hotel, Enugu. There was no question of mistaken identity. P.W.4 corroborated the evidence of P.W.1. In fact, P.W.1 arrested the 2nd Appellant in front of a supermarket as the man who in concert with the 1st Appellant duped him. The 2nd Appellant admits knowing P.W.1 as per Exh. DP7. Both of them live near each other at New Heaven, Enugu. He denied ever being to South Africa. His alibi was that he was at Nawfia in Anambra State for a funeral. No particulars of the funeral were given. The learned trial Judge of the Tribunal believed P. W.1 that the two Appellants were the persons he (P.W.1) dealt with and who duped him. Such finding should not be interfered with by an appellate Court. In Patrick Ikemson & Ors v. The State (supra) at page 473 the Supreme Court held that where there is direct and positive evidence of participation, the alibi, even if raised, will be rebutted by such evidence – See Odidika v. The State (1977) 2 SC 21; See also Njovens v. The State (1973) 5 SC 17. In Adetola & Ors v. The State (1992) 4 NWLR (Pt.235) 267 at 274 the Supreme Court held that as against the plea of alibi, there is evidence of visual identification by P.W.1 and P.W.3 “which the lower Court believed and which therefore effectively destroyed 1st Appellant’s attempt at pleading an alibi”. See also Madagwa v. The State (1988) 5 NWLR (Pt.92) 60. In Fatai Alani v. The State (1993) 7 NWLR (Pt.303) 112 at 125 I said that:

… there is credible and overwhelming eye witness evidence of the presence of the appellant at the scene of crime and that he shot or participated in shooting the deceased. His feeble defence of alibi cannot stand. See Patrick Ikemson v. The State (1989) 3 NWLR (Pt.110) 455 at 467. In Joseph Okosun & Ors v. Attorney General Bendel State (1985) 3 NWLR (Pt.12) 283 the Supreme Court held that where an accused person raised a defence that his alibi was not investigated, (as is done in this appeal) he can still be convicted if there is strong and credible evidence before the Court which falsified the alibi. See also Yanor & Anor v. The State (1968) NMLR 337. In Abubakar Ibrahim v. The State (supra) the Supreme Court held, per Wali, J.S.C. that:

“There defence of alibi whenever raised, is to show that the Appellant was not at the scene of the crime when it was committed. But where there is positive and credible evidence accepted by the Court and which evidence fixed the Appellant at the scene of crime as a partcipes criminis, the prosecution has no further duty of conducting either an identification parade to identify the appellant or to call any other evidence to rebut any purported alibi put up by the appellant.”

It is therefore not foolproof that once the Police fails to investigate an alibi, the accused person must ipso facto be acquitted. His acquittal or otherwise will depend on the circumstances of each case and whether the trial Court believed the evidence of visual identification of the accused person.

In the case on this appeal, the learned trial Judge of the Tribunal said as follows at page 66 of the record of appeal;

“There has been visual identification of both accused persons by P.W.1 and P.W. 4. Both of them saw the accused persons and indeed transacted with them. They went to 1st accused’s house each on at least two occasions. Both of the witnesses visited 2nd accused at room 313 Nike Lake Hotel, Enugu. They discussed with 2nd accused at the lobby of the hotel and stayed together for hours in room 313. All these occurred between 5/11/96 and 21/11/96. In the event, I find the alibi raised by both accused persons to have been neutralised by visual identification. The alibis have been effectively and completely destroyed. There was therefore no duty on the Police to investigate the alibis and no need for the prosecution to call evidence in rebutting the alibis”.

The learned trial Judge believed the evidence of visual identification by P.W.1 and accordingly acted on it. He was right in so acting. I cannot fault him. In the final analysis this appeal accordingly fails and is hereby dismissed.

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Other Citations: (2000)LCN/0848(CA)