FRN V OJO & ANOR

FRN V OJO & ANOR


IN THE COURT OF APPEAL
IN THE LAGOS JUDICIAL DIVISION
HOLDEN AT LAGOS

ON FRIDAY, 11TH MAY, 2018


Suit No: CA/L/1196C/2017

CITATION:

Before Their Lordships:

YARGATA BYENCHIT NIMPAR, JCA

UGOCHUKWU ANTHONY OGAKWU, JCA

ABIMBOLA OSARUGUE OBAS KI-ADEJUMO, JCA


BETWEEN

FEDERAL REPUBLIC OF NIGERIA
(APPELLANT)

AND

OLUTOLA OJO
FOROX STANDARD CONCEPTS LTD
(RESPONDENTS)


PRONOUNCEMENT


A. APPEAL
1. Interference with Findings of Facts – How an appellate Court cannot interfere with evidence properly evaluated by the lower Court

In the circumstances, the Lower Court properly evaluated the evidence to arrive at the conclusion that the offences charged were not proved beyond reasonable doubt. The evaluation flows from the evidence on record and the findings are not perverse. An appellate Court will therefore not interfere. See Eze vs. FRN (2017) LPELR (42097) 1 at 78 (SC) and Uche vs. The State (2015) 11 NWLR (Pt.1470) 380 at 397. Per OGAKWU, JCA. read in context

B. CRIMINAL LAW AND PROCEDURE
2. Offence of Obtaining by False Pretences – Factors that will establish a charge of the offence of obtaining by false pretence

This has to do with the offence of obtaining by false pretence under Section 1(1)(2) of the Advance Fee Fraud and other Related offences, 2006. The Appellant contended that the Lower Court erred in law when it failed to properly evaluate the evidence laid before him by prosecution witnesses buttressing the fact that the Respondents obtained the sum of N20 Million from the victim under false pretence that they were capable of utilising that sum in the execution of a high earning contract that will bring bountiful profit for the said victim. The decided authorities have set down parameters to be met in the proof of this offence in Onwudiwe v. FRN (Supra); Ikpa v The State [2017] LPELR – 42509 (SC) A:

a. There was a pretence

b. That the pretence emanated from the accused person

c. That it was false

d. That the accused knew of its falsity or did not believe in its truth of that there was an intention to defraud) that the thing is capable of being stolen of that the accused persons induced the owner to transfer the property. See Smart v State (1974) LPELR – 3070 (SC) Oshin v IGP(1991) 7 NWLR (PT 205) 567; AMADI V FRN (2008) 10 NWLR (PT 1119) 259 at 281 – 282. Against this background, the pertinent question is has the Appellant proved the case of false pretence against the 1st Respondent? The evidence before the Court is that from Exhibit K there was a report that he was called by the complainant who invited him to his office, he gave the sum of N20 Million to the PW2 for transaction and after he cashed the sum he disappeared, but there is uncontroverted evidence that the PW2 and DW2 were business partners long before the Dangote contract, the evidence is that the DW1 usually brings business deals to the complainant who upon being satisfied financially participates in the deal and shares profit with DW1. On this Dangote deal he voluntarily participated upon satisfaction of the deal. Uncontroverted evidence is on record that he gave N6 Million cheque to Respondents to use and stay afloat and no other the sums mentioned by complainant were in respect of other transaction. It’s important to know that the deals went on after the Dangote went viral. In the same vein the pretence did not come from DW1, the Dangote deal was fake. PW3 testified that there was. In a criminal suit the burden of proof is beyond reasonable doubt; in Adelodun v FRN (2017) LPELR – 42356 (CA); Onwudiwe V. FRN (Supra); Aguba v. FRN (2014) LPELR – 23211(CA) 40 – 41, paras D – B:

“It has been defined as knowingly obtaining title to another person’s property by misrepresenting the fast with the intent to defraud that person. Also termed obtaining property by false pretences, fraudulent pretences; larceny by trick, embezzlement et al. The Court held that that false pretence 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. Therefore ingredient that there was pretence has not been proved instead it is an understanding between both parties on how they want the business to be. Also no pretence has come from the 1st Respondents, nor was the LPOs deals false neither was there an intention to defraud, there is abundant evidence of PW3 and 5 investigating officers that the investment to secure the Dangote job by payment to Alhaji Ali, the attempt to get a guarantee from the bank which was withdrawn and the company Stowv at investment limited failed to supply the items. See exhibits w, x8, BBB, evidence of DW3 page 3 1039-1042 of the record. Complainant said the LPOs were fake because he did not obviously get the profit although he is a passive partner. The 1st Respondent did not know the deal will fall through and did not induce the complainant who was all the while interested and most importantly the sum of N20 Million was not advanced at once for the deal and not proved by the prosecution. It is the sum of N6 Million which has been consistent throughout the statements and evidence of the 1st Respondent and was not shaken. From the evidence adduced the complainant piled immense pressure on the 1st Respondent on the deal. This scenario is not one that falls within the confines of the offence. The contract for supply was found to be genuine and all steps to secure and perform same was verified by the security operatives apart from the evidence on record of the 1st Respondent, that two LPO expired due to finance and was not valid at the time the defendants requested for N20 Million to part finance the laws LPO dated 13/3/09, 6/4/09 was still valid as at the time, it had 45 days life span therefore the money was advanced on 1/4/09 therefore it was not a scam. The contracts were given after money was given for the jobs. Meaning the jobs had to be sourced for directly or indirectly through brokers. DW3 said defendant even sold his car to raise money see page 546 lines 19-21 of record and evidence of PW3 & PW5. As at the time he was informed of the LPO deal it was still valid and the sum of N20 Million was not advanced on the job hence he sourced for a guarantee at IBTC, he could not have known that the deal was going to fail the complaint could not prove that he advanced 20 Million to him for the Dangote deal. At this stage when the 1st Respondent emphasised to the prosecution that the total exposure was 20 Million he was not cross examined as to the exact meaning since at the same time he was consistent that he had N6m from the complainant, certainly there is a difference cannot be interpreted to mean an admission. No property was obtained as a result, the particulars of the offence was not correct and falsified xhibit K. There could not have been any influence on the complainants’ mind to invest/partner in the deals he has a long time business relationship with the 1st Respondent. I am unable to agree with the Appellant that this offence has been proved the whole particulars revolve round the LPOs being false but in the light of evidence supplied by PW3 & 5 and confirmed by the 1st Respondent this count fails and is struck out. Per OBASEKI-ADEJUMO, JCA. read in context

3. Offence of Uttering – Elements of the offence of uttering

On the charge of uttering of certificate of occupancy in count 8 there is evidence that the 1st Respondent got it from one Mr Segun Samuel for which he paid N400,000 for. The summary is that he wanted to use it for a collateral for loan as third party documents could be used at that time but the loan application fell through, it was given to the complainant to hold as comfort that he would still pay him the money for the business and would not abscond. See page. 532 lines 13-15 of the record. He described Segun as agent to the landlord. It is curious that there was no evidence of uttering nothing was pointed as being altered. The name was the same at the lands registry. Nobody claimed that it was different and was missing; it was not given for any transaction or for sale of the property covered therein. The original document so to speak that was altered was not shown to the Court, what was cloned was not demonstrated to the Court in comparison to prove beyond doubt that it is uttered or forged.

In Ontario Oil & Gas Ltd V. FRN (2015) LPELR – 24651 (CA) this Court held relying on EZE v FRN [1987] 1 NWLR (PT 51) 506 (SC) thus:

“What really was the complaint against the Appellant? It is uttering a false document. He commits an offence under Section 468 of the Criminal Code. The nature of the document forged or falsified may go to punishments but it is otherwise immaterial to the offence disclosed. In other words, in determining Jurisdiction regard to the offence or offences charged in the information, the character and nature of the document alleged to falsified and uttered is irrelevant. But in determining the punishment, then the nature and the character of document become most material.”

In the offence of forgery and uttering of a false document the Court set down what must be proved by the prosecution in Walter Wagbatsoma V. FRN (2015) LPELR – 24649 (CA) 55 – 56, paras B -A as stated in Odiawa V. FRN (2008) LPELR – 4230 (CA); Alake V. State (1991) 7 NWLR (PT.205) 567 thus:

“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are

a) That the accused utters or forges a document,

b) that he knew the document to be false,

c) that he presented the said document to the other party with the intention that it could be acted upon,

d) that the document was acted upon by the other party to his detriment (the 4th ingredient is not always necessary to prove once the other 3 have been established) the offence of possession of documents is a question of fact.”

In other words once documents containing false pretences as defined above are found in the possession of a person who may not necessarily be the author, the offence is complete. The offence of uttering is akin to that forgery. I therefore resolve issue 1 (issues 1, 2 & 8) in favour of the Respondents. Per OBASEKI-ADEJUMO, JCA. read in context

4. Issuance of Dud Cheques – The offence of issuance of dud cheques as provided by law

These counts are in respect of issuance of dud cheques which is a criminal offence by virtue of Section 1 of the Dishonoured Cheques (Offences). See Chief (Dr) Fajemirokun V. Commercial Bank Nigeria Ltd & Anor (2009) 2-3 SC (PT.1135) 58; Seedvest Microfinance Bank Plc & Anor V. Paul Adedigbo Ogunsina & Ors (2016) LPLER-41346 (CA).
The provision of the act is thus:

1. (1) Any person who-

(a) Obtains or induce the delivery of anything capable of being stolen either to himself or to any other person; or

(b) Obtains credit for himself or 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 fund 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 -1) in the case of an individual be sentenced to imprisonment for two years without option of fine of not less than N5,000 fine.

(2) for purposes of Section (1);

(a) The reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property;

(b) A person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shall be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into the manner in which the obligation would be settled was not specified.

(3) A person shall be guilty of an offence under this section if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing and did believe in fact that it would be honoured if presented for payment within the period specified in Subsection (1) of this section(3)
It is pertinent to state that from the evidence on record the complainant and the 1st Respondent had being business partners long before the petition to the EFCC in Exhibit K, in fact before 2008. There were various business deals between the two which transcends beyond the deal which failed and triggered the petition. It can be seen that various payments were made for different deals and back and forth monies were given and paid back into account from this arrangements which in my view were loose and not tied to any specified deal even the prosecutions bank statements of the complainant tendered revealed more than was being contended. See under this head there were Zenith bank cheques dated 20/11/08 and 23/03/09 issued to complainant before the alleged events complained about. This was confirmed by PW2 & 3. There is unchallenged evidence on the modus of payment that it will be exchanged for cash paid into account of the complainant. “I agree that I do not personally participate in the business the 1st defendant collects money from me for business, all I do is to go through the business break down he prepares and the profit coming to me once satisfied, I give him money.” The prosecution could not pinpoint specifically the contract for which the cheques were issued, the evidence extracted on record is that the cheques were issued before the Dangote deal was sealed and fell through not because of negligence but inability to raise enough finance majority of the cheques were not presented, the complainant said he presented only two and did not present others because he was sure they will be dishonoured and would incur bank charges the total of 4 cheques are said to be in question issued on 6/5/09, GTB 8/7/09, Zenith bank 14/9/09, Intercontinental 1/6/09 for the LPO transaction, Exhibit K3 & K4 for which the complainant said he advanced N20 Million. Examining the issue more closely, it is the wordings of the act that decides whether an offence has been committed or not this means the ingredients it requires that there is an obtaining or inducement of a delivery of anything capable of being stolen, furthermore the cheque was in settlement of or purported settlement of an obligation, and the person receives credit for himself; in this case with peculiar circumstances was a business arrangement wherein both parties contribute funds for businesses the 1st Respondent gets the business and does the running around while the complainant sponsors it or gives a part of the money to bank roll the business, the 1st Respondent then performs the deal and on payment profit is shared this was confirmed by the complainant therefore in the course of this arrangement it cannot be said that the cheque was for a particular contract or settlement. The PW2 could not total the profits under the transaction, evidence abound that two of the LPOs fell through for lack of funds while the last failed because a 3rd party was unable to perform his side of the contract. It cannot be correct that this was an inducement or a settlement or payment it therefore does not qualify under this section. Furthermore the 1st Respondent contended that it was replaceable by cash and this was the modus operandi cash payments were shown in proof of this which was not denied, there was nothing on record that the PW2 was influenced. He participated financially and happily received the profits with satisfaction. These sums collected were not specified and in fact do not add up to the total figure of 20 Million see Exhibit CC4. It was again shown that the issuance of the cheque of 6/4/09 for N1,650,000 which show by exhibit P5 that it was for another transaction. The LPOs are dated 6/4/09 and 13/3/09 Exhibit K3 and K4, during evidence the complainant stated: “Business transactions I had with the complainant was basically Oil and Gas transactions. When I source for supply LPOS, I notify the complainant and we sit together and work out the business modalities. Usually I tell him the amount needed to execute the LPO and ask him to provide the short fall and tells me the consideration for providing the shortfall…The complainant then releases the funds for the shortfall as discussed while I then go ahead and execute the contract. I also ensure payment of the complainant’s shortfall and consideration into his account once I am paid on or before the agreed time with the complainant.” The above extract tallies with the evidence of the complainant. PW3 the prosecutions investigating officer had this to say under cross examination: “There was no way you can find out because some was cash, some were paid into his account there are mix transactions, it is not only Dangote transaction, payment were paid for other transaction so there is no way and we find it difficult that is why we called all of them together to explain themselves.” Therefore I am satisfied that there is no proven settlement for the cheque issued and also that same had not been replaced by cash in the account of complainant. See exhibit B wherein about 10 different payments into complainants account by DW1 were not explained. Moreso, the transaction being settled has not been clearly identified, even the DW1 in his statement Exhibit CC1 stated that the cheques were issued as security for cash received and some cheques paid in the account were in anticipation of funds owed them from different sources which he had discussed with the complainant and had reported to area F and that this was a requirement before cash is received from him. The evidence of the DW1 was consistent with his statement and I believe that this is an exception to the rule under the dud cheque act. The PW2 stated that he expected funds for some businesses but due to failed transactions he could not meet same with cash as he usually did. Bearing in mind the peculiar nature of the overall circumstances, I am persuaded to agree with the Lower Court that this is not a case properly under the dud cheque act. It falls under the exception in Section 1(3) of the Act. As for the evaluation of evidence all I have being trying to say is that the Appellant has not and did not show how N20 Million was taken from him, he did not disclose the previous relationship between parties and how he shared in profits of businesses between them and that he actively contributes to sponsoring the business. The picture created is that of a joint business/partnership without a set down sharing formulae. It was an open ended business, the 1st Respondent was the active partner who does the running while the Appellant is a financial partner it will not be correct that he is the sole financier he is a contributor. An Appellate Court will not interfere with the findings, based on such evaluation unless it is found to be erroneous. See Abeke v. State (Supra). This issue is therefore resolved in favour of the Respondents. Per OBASEKI-ADEJUMO, JCA. read in context

5. Offence of Conspiracy – How it is a requirement to prove the offence of conspiracy

The second issue is on the conspiracy linked with the above, the prosecution made no attempt to link the other mind the Appellant was supposed to have agreed with. The investigation tailed off at this point, the owner of the document, the name, the parties were not interrogated only the end users which gives an inconclusive investigation, therefore, the ingredients of conspiracy has not been met as put in the case of Kaza v State (Supra) as agreements of two or more persons, a plan to carry out unlawful act. I am in agreement with the Lower Court that conspiracy has not been proved to ground a conviction. Per OBASEKI-ADEJUMO, JCA. read in context

C. EVIDENCE
6. Admissibility of Electronic Documents – Conditions for admissibility of computer generated documents

Heavy weather has being made on Section 84(2) of the Evidence Act in respect of a certificate issued by relevant person who did generate computer production. Exhibit Q and R was tendered through PW10 an EFCC Operative head of the Telephone forensic unit he testified on the process of extraction of phone contents with the aid of a computer he extracted text messages from the phones and printed them out through a system in the standard format he identified the document exhibit Q & R but confirmed he did not sign the document as he is not required to sign it after printing. See page 898 of the record vol. 11. There was no certificate covering the computer in line with Section 84 (2) of the Evidence Act. Sections 84 (1) & (2) is reproduced below:

“in any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.
(2) The conditions referred to in Subsection (1) of this section are:

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.
The correct interpretation to be given to this Section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with preconditions laid down in Section 84(2). See Dickson v Chief Timipre Marilin Sylva & Ors (2016) LPELR – 41257 (SC); Kubor v Dickson (2013) ALL FWLR (PT.676) 392 at 429 Therefore, in the light of the above, Exhibit Q7 & R not having been backed up is inadmissible. The purpose of a certificate is to authenticate the means of production. They are expunged from the records. Per OBASEKI-ADEJUMO, JCA. read in context

7. Burden Of Proof – Who the burden of proof lies on in criminal cases

…The complainant had testified that it was fake but could not prove same. The ingredients that he presented the document to the complainant to be acted upon clearly, in the light of entire evidence on record are left hanging. In Moore v FRN [2012] LPELR 19663 (CA) the Court held that:

“That to be guilty of the offence of forgery under Section 417 of the Criminal Code Laws of Lagos State, the prosecution must prove these ingredients to establish the offence against an accused person. They are the forgery of a document, writing and seal. The prosecution must prove that the accused person knowingly and fraudulently uttered a false document or writing of a counterfeit seal…

There is no burden therefore on the accused to prove his innocence…The burden rests squarely on the prosecution to prove his guilt beyond reasonable doubt. It is the prosecution that must prove that there was a robbery not for the accused to prove that there was no robbery.”

see Afolabi V. The State (2014) LPELR-22249 (CA); Kaza V. State (Supra). Per OBASEKI-ADEJUMO, JCA. read in context

8. Burden of Proof and Standard of Proof – The need to prove beyond reasonable doubt in criminal cases

The evidential burden in criminal trials is for the prosecution to prove its case beyond reasonable doubt. Where there is any doubt, the doubt must be resolved in favour of the accused person: Ugboji vs. The State (2017) LPELR (43427) 1 at 54-55 (SC), Okashetu Vs. The State (2016) LPELR (40611) 1 at 34 (SC) and Ndidi vs. The State (2007) 13 NWLR (PT1033) 633. Per OGAKWU, JCA. read in context

D. GOVERNMENT AGENCY
9. Economic and Financial Crimes Commission – What the power of the Economic and Financial Crimes Commission does not extend to

Much as the EFCC has wide powers there are limits else, it will become a jack of all trade and master of none. It could not be a correct interpretation of the enabling act. Save for the issue of dud cheques raised, this is purely a civil issue; a breach of contract to be precise. Thus in law the EFCC ought not to meddle into purely civil disputes between persons. The EFCC cannot upon the instigation of the complainant wade in with all its resources. This issue could have been settled via a civil action still with proof on the complainant but this time with preponderance of evidence. This much has been said by the Supreme Court in Diamond Bank Plc v HRH Eze (Dr) Peter Opara & Ors (2018) LPELR – 439070 (SC), per BAGE, JSC held that:

“It is important for me to pause and say here that the powers conferred on the 3rd Respondent i.e. the EFCC to receive complaints and prevent and/or fight the commission of financial crimes in Nigeria pursuant to Section 6(b) of EFCC Act Supra does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions in this case. The EFCC has an inherent duty to scrutinise all complaints that it receives carefully, no matter how carefully crafted by the complaining to seek appropriate/lawful means to resolve their disputes.”

It is at best a breach of contract which is the foundation of the petition but was twisted to curry favour and action on the path of EFCC. Per OBASEKI-ADEJUMO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OBASEKI-ADEJUMO, JCA


This is an appeal against the judgment of the High Court of Lagos State, sitting at Ikeja Judicial division in charge No:ID/215C/2010 coram ONIGBANJO, J., wherein he discharged and acquitted the Respondents on counts 1, 2, 3, 4, 5, 6, 7, 8 & 9 of the information against them. Being dissatisfied with the judgment, the Appellant vide a Notice of Appeal dated 19th June, 2017 and filed on the 20th June, 2017, filed 10 grounds of appeal on the same date.

The summary of the facts leadings to this appeal are that the Appellant preferred 8 counts information charge against the Respondents bordering on allegations of issuance of dishonoured cheques contrary to Section 1(1)(a) of the Dishonoured Cheques (Offences) Act, CAP D11 LFN, 2004 (counts 1-4), conspiracy to commit forgery, forgery and uttering of certificate of occupancy (counts 5 -7) while count 8 is on obtaining money by false pretence contrary to Section 1(c) of the Advance Fee Fraud and other Related Offences Act, No.14 of 2006. The Appellant now seeks the following reliefs:

a) An order setting aside the judgment of his lordship, honourable Justice S.A. ONIGBANJO dated delivered on the 30/3/2017 in charge no.ID/215C/2010.

b) An order entering a verdict of guilty and subsequently, conviction upon an appraisal and evaluation of the evidence against the 1st and 2nd Respondents.

c) An order setting and aside the Judgment of trial Court discharging and acquitting the Respondents on counts 1-8 jointly and severally.

d) A further order sentencing the Respondents as appropriate on all or any of the 8 counts of the information jointly and severally upon which they were tried.

e) An order allowing the appeal.

The Appellants brief was filed on 6/12/17 and reply brief was filed 8/2/18 settled by DR. Benedict Ubi; K.M.A. Olushesi; I. O. Daramola; Ocholi M. Attah of Legal & prosecution department, EFCC. Wherein they formulated 8 issues thus:

1. Whether in the light of the evidence adduced by the prosecution, the learned trial Judge was right in discharging and acquitting the defendants on count 8 of the information?

2. Whether the conduct of the Respondents that cumulated to the charge as laid out in count 8 of the information is a case of failure to execute a genuine contract as held by the learned trial Judge?

3. Whether the learned trial Judge was right in discharging and acquitting the Respondents of counts 1 – 4 by holding that exhibit H – H7 would be honoured upon presentation when there was no iota of evidence in proof of the said belief?

4. Whether the learned trial Judge was right in holding that the defence provided under Section 3 of the Dishonoured Cheques Act, availed the Respondents in respect of counts 1 – 4 of the information?

5. Whether the learned trial Court was right when it discharged and acquitted the Respondents of conspiracy to commit forgery under the criminal code on the grounds that the Appellant failed to prove that head of the count against the Respondents beyond reasonable doubts?

6. Whether the learned trial judge was right in discharging and acquitting the Respondents on count 6 of the information by holding that the Appellant failed to prove the offence when there is on record evidence that the document in question is a “coloned copy” from the original?

7. Whether in view of the decision in the case of Osondu v FRN (2000) 12 NWLR (PT 682), the learned trial Court was right in discharging and acquitting the Respondents on count 6 of the information.

8. Whether the learned trial Judge was right in discharging and acquitting the Respondents of uttering as laid out in count 8 of the information on the grounds that the Appellant failed to prove the offence beyond reasonable doubt?

The Respondents brief filed on 16/2/18 was settled by Nathaniel O. Olagunju wherein he adopted the Appellant’s issues. Having adopted the Appellant’s issues, this Court shall also adopt same in the resolution of this appeal. However, the issues will be resolved in this order: issue 1 (made up of issues 1, 2 & 8 together), issue 2 (made up of issues 3 & 4 together) and issue 3(made up of issues 5, 6 & 7 together).

ISSUE 1

The Appellant’s counsel contends that the Lower Court failed to properly evaluate evidence laid before him by the prosecution witnesses buttressing the fact that the Respondents obtained the sum of N20,000,000 from the complainant/victim Chief Samuel Chinedu Anigbata under false pretence that they were capable of utilising that sum in the execution of a high earning contract that will bring bountiful profit for the victim. He referred to description of obtaining money by false pretence by the Master of the Rolls in the English case of Reg v Aspinall (1) 2 Q.B.D 48. He also referred to the cases of Alake v State [1991) 7 NWLR (Pt. 205) 567 at 592, paras G – H; Nwankwo V. FRN [2003] 4 NWLR (PT.809) 1 at 37 – 38, paras H – B; Onwudiwe v FRN [2006] 10 NWLR (PT.988) SC 382 on the ingredients of obtaining money by false pretence and that it can be committed by oral communication or writing or even by conduct of the Respondent. He submitted that the essential eight ingredients of the offence were all present in the matter as shown in evidence and the text between the 1st Respondent, the victim – PW2 and also those between the father of 1st Respondent and Pw2, Exhibit Q and R together with ownership attestation in exhibit S & S 1. Appellant counsel submitted that from exhibit Q & R, the 1st Respondent and his father did everything possible to ensure that the victim believed that his N20 million was already invested in the supply of low pour fuel oil and that payment was due from Dangotecompanies. He referred to page 9 of Exhibit R.

He further relied on Ele v State (2006) ALL FWLR (Pt. 329) 849; Nwanosike V. John Holt Ltd (2006) ALL FWLR (Pt.301) 1809 to submit that in the case of conflict between oral and documentary evidence, the documentary evidence takes precedence over the oral evidence.

He further submitted that in 2009, the 1st Respondent had represented to the PW2, a customer of his former employers (Oceanic bank) to have the capacity to secure and supply 3million liters of low pour oil (blackoil) to Dangote cement factories in Gboko and another 2 million liters to its factory in Kogi State and tendered exhibits K3-K4, see Page 990 of the records where upon 1st Respondent and his company 2nd Respondent obtained in instalments, sums amounting to N20m from PW2 which PW2 believed will be shared in profit of 50:50% (payment of principal and profit) from the investment by 31st July, 2009 see exhibit J.

He reviewed the evidence of PW2 on how the monies were collected and the stories told upon demand for profit sharing and capital invested by July 2009 he referred to EXHIBIT R, on various messages of excuses for inability to pay see; pages 4, 7, 9, 11/8/2009, 13/08/2009 which were corroborated by the text from his father Naval Commander Reuben Ojo (rtd) that all these were formed to enable them keep the money they had obtained from PW2 and that all efforts to retrieve the money proved abortive with uncleared cheques, for which he was surcharged. He was only given a cheque for N2.5 Million by a staff of the bank named Simeon while others were retrieved from the home of 1st Respondent by operatives of the EFCC during a search with search warrant, he referred to Exhibit OQ – OQ3. He was told there was insufficient funds in the account he referred to Exhibit H1- H7, and the remaining un-cleared which were contained in Exhibit R.

Appellant counsel stated that the victim could not pay his sons fees and his wife needed to go abroad hence the sum of N6 Million was released into his account and this was returned unpaid. Upon further demand for the funds, the 1st Respondent pleaded with him and in this vein sent several text – see pages 8, 9, 10 & 9 of Exhibit R, the 1st Respondent then deposited his passport and later his third party certificate of occupancy in the name of Olufemi Williams to convince him that he will pay. That stories and decoys continued until the 1st Respondent stopped picking calls and evaded him until he was fortunate to meet him at home. PW2 stated further that he realised that many people were after the accused for similar sums of monies collected. He met the 1st Respondent’s parents who promised to intervene and upon subsequent meeting the 1st Respondent’s father agreed to offer landed properties for the amount collected by his son and offered several certificate of occupancy titles for him to choose from, see Exhibit L-L1 wherein he declined upon advise to accept the properties but requested that they be sold and monies given to him at this junction the 1st Respondent’s father asked him to choose between the Court and the landed properties that he could not sell the properties. At this point the PW2 ran out of patience and reported to EFCC wherein he authored a petition Exhibit K-K6. Appellant’s counsel contended that the evidence PW2 was not shaken. He also submitted that evidence of PW3 – Police Sergeant A. Lemanr who investigated the allegations was to the effect that N700,000 was refunded to PW1 through the team. He tendered the written statement in exhibit Bb, and that the Respondent did not execute the contract. There was nothing like supply of LPFO on behalf of the Respondents, and that the Respondents refused to produce Kayode Odunlade. He relied on Akindipe v State [2012] ALL FWLR (PT.638) 805 SC; AG of Adamawa State v Ware (2006) ALL FWLR (PT.306) 860 SC

He submitted that from the evidence on record the Respondents fraudulently obtained N20m and which is capable of being stolen and was indeed stolen by the Respondents with intention to deprive the owner of the thing.

Appellant counsel referred to the statements of the 1st Respondents exhibit 8, where he made series of admissions. He then relied on Onwudiwe V. FRN (Supra); Omoju V. FRN (2006) VOL 2 MSJC 173 Paras C – D; Eboghnome V. The State (1993) 7 NWLR (Pt.306) 38 Gaji V Paye [2003] 8 NWLR (Pt.823) 583 at 605 AC; Ajiboye V. State (2003) 8 NWLR (Pt.364) 587 At 599 Para H; Emeka V. State (2001) 14 NWLR (Pt.734) 667 at 683 Paras G – H on ways of proving commission of a crime. Counsel referred to the evidence of Respondents and statement of 8/4/10 and submitted that the Respondents exposure to the Appellant was about N14,057,000.

Appellant counsel relied on Akinmoju v State [2000] 6 NWLR (PT.662) 628, paras B – D; Kareem v FRN (No.2) [2002] 8 NWLR (Pt.770) 664 At 683, Paras B – D. Ikpasa V. A.G. Bendel (1981) 9 SC 7 and Asimiyu Alarape & Ors V. The State (2001) 3 SCM 1 to the point that the confessional statements if given its full evidential value and properly evaluated the Court would have ruled otherwise instead of acquitting the Respondents. He contended that facts admitted needed no proof – Agbakoba v SSS [1994] 68 NWLR (Pt. 351) 475.

Finally Appellant counsel submitted that they have proved the offence beyond reasonable doubt and all essential element of the offence of obtaining money by false pretence. He relied on Ede v. FRN [2001] 1 NWLR (Pt. 695) 502 at 515; Ayub Khanu v State [1991] 1 NWLR (Pt. 172) 127; Adigun v A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678.

The Respondents’ counsel submitted that count 8 pertains to offence of receiving by false pretence. He submitted that the literal reading and understanding of the provision of Section 1c of Advance Fee Fraud provides that there must be a property which was obtained by the accused or defendant by way of false pretence. He contended that that property must be clearly ascertainable and properly established by legal evidence and to be proved beyond reasonable doubt. He referred to the statement of the complainant where he maintained that it was N20 Million that was given to the Respondents but that the complainant PW2 did not prove how this sums was given by evidence, that he merely lumped several unrelated payments together it included payments relevant to the destabilise. He referred to Exhibit U the statement sums where in some words were cancelled in the statement, that it was only N6m that was given and from the statement both seemed to device a form of settlement in Exhibit EE and that the transactions of the parties were documented but not produced at the trial, He referred to series of payment to the complaints account under cross-examination of complainant from Exhibit P5, he referred to Section 128 of Evidence Act, 2011 And Bunge V Gov. Of Rivers (2006) ALL FWLR (PT.325) 1; Royal Exchange Nigeria Ltd V. Aswani Texiles Industries Ltd [1991] (PT.325) 1; Edilco Nig Ltd v. UBA Plc (2000) FWLR (Pt.21) 792; Haske V. Magaji (2009) ALL FWLR (Pt. 461) 887.

Counsel for Respondent contended that throughout the trial some of funds were not for Dangote transaction and that there was adequate proof that the complainant and 1st Respondent’s were business partners before and did several different business which profited the complainant before and after this Dangote leading to this appeal which went bad. This was confirmed by complainant at page 527 lines 1 and 2 of the record and examination in chief of PW3 (see Page 545 lines 10-12, he further referred to evidence at page 999 lines 32 – 33 of the record where the Respondents maintained he was given N6m for the Dangote project. He disputed that the Exhibit EE constituted a confessional statement upon which a Court will convict an accused person as it is inadmissible. He relied on Ele V. State (2006) ALL FWLR (Pt.329) 849; Afolabi V. COP (1961) 1 NLR 654; Okoh V. State (2009) ALL FWLR (Pt.453) 1358; Ubierho V. State (2005) ALL FWLR (253) 804; Omonga V. State (2006) ALL FWLR (Pt.306) 903 Aigbadion V. State (2000) 7 NWLR (PT.666) 686. He submitted that the statement was not direct and positive to support a conviction. That despite an admission in a statement it does not relieve the prosecution the burden of proof to establish guilt therefore Exhibit EE was not reliable.

Furthermore, he contended that Respondents gave reasons for it at page 1002, lines 9 – 14, 18 – 21 of the record and that therefore the accused is entitled to be discharged. He referred to R v Aliyu Zaria [1959] NRNLR 67. On count 8, counsel further submitted that the allegation contained therein is that as at 1st April, 2009 the LPO was non-existent and that this was contrary to evidence that exhibit K was written to gain sympathy from prosecution that the papers were fake. He alluded to the investigation by EFCC that confirmed latter that the Exhibit W and X8 the LPO’S was genuine and authentic, the facilitator Alhaji Ali confirmed to EFCC see page 41-12 for his statement and evidence of 1st Respondent at page 999 of the record on the track record of the LPO the issues on the amount expended to sustain the LPO. He submitted that failure to call this vital witness as it would be unfavourable to their case amounted to withholding of evidence. He relied on the cases of NERDC v Gonzee Nig Ltd (2000) FWLR (Pt.21) 842; Citizens International Bank Ltd v SCOA Nig Ltd (2006) ALL FWLR (Pt.323) 1680; Elias v. Disu (1962) 1 ALL NLR 214. Counsel further contended that upon the review of the LPO having expired despite all efforts to perform the deal pointed that the genuineness of the LPOs was not discredited and that the entire case points to a failed counteract and not a criminal matter. That the LPO were not fake as contended by prosecution and contradicts the position of the law in this issue PW3 confirmed his findings that they were not fake and that money was given, it was after money was given at page 546 lines 19 -2 money was expended on the Dangote contract and bank guarantee to supply the product but Stow vat investment Ltd never supplied same. He relied on Onwudiwe V. FRN pages 812 – 813, R V. Basil Ranger Lawrence (1932) 11 NLR 6; Ele V. State (Supra); R V. Mandry & Wooster (1973) 3 ALL ER 966; Reg Vs. Aspinall (Supra) that the facts did not add up to obtaining by false pretence see evidence of PW1 & 3 and documents tendered through them. Respondents counsel referred to Alake v. State (Supra); R v John James Sullivan 30 CR APP. R1 32.

He contended that there no false knowledge or misstatement which amounted to a false presence.

Counsel referred to Exhibit Q & R and contended that they are inadmissible ab initio and did not comply with Section 104 of the Evidence Act, he referred to Umogbai v. Aiyemhoba (2002) FWLR (PT.132) 192; Dagaci Of Dere V. Ebwa (2006) ALL FWLR (PT 306) 786. He premised this on the ground that PW9 who stated that he prepared it also stated that he did not sign exhibits Q & R and no certificate was attached as required by law. He urged the Court to discountenance and expunge them from the record. He relied on the cases of Alashe v Olori-Ilu (1964) 1 ALL NLR 390; AIKI v IDOWU (2006) ALL FWLR (Pt.237) 496; Kwara Investment Co. Ltd V. Garuba (2000) FWLR (Pt.2) 198.

In reviewing the evidence, counsel pointed out that PW2 only identified the payment of a sum of N675,000.00 made on 29/6/09 and conceded under cross-examination that the various payments were in respect of Dangote transaction.

In reply Appellant’s counsel submitted that he is not bound to call witness but material witnesses and that statement of Alhaji Ali was laid bare for the Court to see.

On Exhibits Q & R he stated that they are text messages sent by 1st Respondents to his father and were printed by forensic department of Prosecution (EFCC) -PW3 and they are admissible by Section 41 of Evidence Act, 51 & 52 as they were made in ordinary course of business, he relied on Nwangwa v Ubani [1997] 10 NWLR [PT.526] 559 that it falls into the exception in Section 84(4) of the Act.

RESOLUTION

This has to do with the offence of obtaining by false pretence under Section 1(1)(2) of the Advance Fee Fraud and other Related offences, 2006. The Appellant contended that the Lower Court erred in law when it failed to properly evaluate the evidence laid before him by prosecution witnesses buttressing the fact that the Respondents obtained the sum of N20 Million from the victim under false pretence that they were capable of utilising that sum in the execution of a high earning contract that will bring bountiful profit for the said victim. The decided authorities have set down parameters to be met in the proof of this offence in Onwudiwe v. FRN (Supra); Ikpa v The State [2017] LPELR – 42590 (SC) A:

a. There was a pretence

b) That the pretence emanated from the accused person

c) That it was false

d) That the accused knew of its falsity or did not believe in its truth of that there was an intention to defraud) that the thing is capable of being stolen of that the accused persons induced the owner to transfer the property. See Smart v State (1974) LPELR – 3070 (SC) Oshin v IGP(1991) 7 NWLR (PT 205) 567; Amadi V FRN (2008) 10 NWLR (PT 1119) 259 at 281 – 282.

Against this background, the pertinent question is has the Appellant proved the case of false pretence against the 1st Respondent? The evidence before the Court is that from Exhibit K there was a report that he was called by the complainant who invited him to his office, he gave the sum of N20 Million to the W2 for transaction and after he cashed the sum he disappeared, but there is uncontroverted evidence that the PW2 and DW2 were business partners long before the Dangote contract, the evidence is that the DW1 usually brings business deals to the complainant who upon being satisfied financially participates in the deal and shares profit with DW1. On this Dangote deal he voluntarily participated upon satisfaction of the deal. Uncontroverted evidence is on record that he gave N6 Million cheque to Respondents to use and stay afloat and no other the sums mentioned by complainant were in respect of other transaction. It’s important to know that the deals went on after the Dangote went viral. In the same vein the pretence did not come from DW1, the Dangote deal was fake. PW3 testified that there was. In a criminal suit the burden of proof is beyond reasonable doubt; in Adelodun v FRN (2017) LPELR – 42356 (CA); Onwudiwe V. FRN (Supra); Aguba V. FRN (2014) LPELR – 23211(CA) 40 – 41, paras D – B:

“It has been defined as knowingly obtaining title to another person’s property by misrepresenting the fast with the intent to defraud that person. Also termed obtaining property by false pretences, fraudulent pretences; larceny by trick, embezzlement et al. The Court held that that false pretence 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.

Therefore ingredient that there was pretence has not been proved instead it is an understanding between both parties on how they want the business to be. Also no pretence has come from the 1st Respondents, nor was the LPOs deals false neither was there an intention to defraud, there is abundant evidence of PW3 and 5 investigating officers that the investment to secure the Dangote job by payment to Alhaji Ali, the attempt to get a guarantee from the bank which was withdrawn and the company Stowv at investment limited failed to supply the items. See exhibits w, x8, BBB, evidence of DW3 page 3 1039-1042 of the record.

Complainant said the LPOs were fake because he did not obviously get the profit although he is a passive partner. The 1st Respondent did not know the deal will fall through and did not induce the complainant who was all the while interested and most importantly the sum of N20 Million was not advanced at once for the deal and not proved by the prosecution. It is the sum of N6 Million which has been consistent throughout the statements and evidence of the 1st Respondent and was not shaken. From the evidence adduced the complainant piled immense pressure on the 1st Respondent on the deal. This scenario is not one that falls within the confines of the offence.

The contract for supply was found to be genuine and all steps to secure and perform same was verified by the security operatives apart from the evidence on record of the 1st Respondent, that two LPO expired due to finance and was not valid at the time the defendants requested for N20 Million to part finance the laws LPO dated 13/3/09, 6/4/09 was still valid as at the time, it had 45 days life span therefore the money was advanced on 1/4/09 therefore it was not a scam. The contracts were given after money was given for the jobs. Meaning the jobs had to be sourced for directly or indirectly through brokers. DW3 said defendant even sold his car to raise money see page 546 lines 19-21 of record and evidence of PW3 & PW5. As at the time he was informed of the LPO deal it was still valid and the sum of N20 Million was not advanced on the job hence he sourced for a guarantee at IBTC, he could not have known that the deal was going to fail the complaint could not prove that he advanced 20 Million to him for the Dangote deal. At this stage when the 1st Respondent emphasised to the prosecution that the total exposure was 20 Million he was not cross examined as to the exact meaning since at the same time he was consistent that he had N6m from the complainant, certainly there is a difference cannot be interpreted to mean an admission.

No property was obtained as a result, the particulars of the offence was not correct and falsified Exhibit K. There could not have been any influence on the complainants’ mind to invest/partner in the deals he has a long time business relationship with the 1st Respondent. I am unable to agree with the Appellant that this offence has been proved the whole particulars revolve round the LPOs being false but in the light of evidence supplied by PW3 & 5 and confirmed by the 1st Respondent this count fails and is struck out.

Heavy weather has being made on Section 84(2) of the Evidence Act in respect of a certificate issued by relevant person who did generate computer production. Exhibit Q and R was tendered through PW10 an EFCC Operative head of the Telephone forensic unit he testified on the process of extraction of phone contents with the aid of a computer he extracted text messages from the phones and printed them out through a system in the standard format he identified the document exhibit Q & R but confirmed he did not sign the document as he is not required to sign it after printing. See page 898 of the record vol. 11. There was no certificate covering the computer in line with Section 84 (2) of the Evidence Act. Sections 84 (1) & (2) is reproduced below:

“in any proceeding a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this section are satisfied in relation to the statement and computer in question.

(2) The conditions referred to in Subsection (1) of this section are:

(a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived.

The correct interpretation to be given to this Section 84 of the Evidence Act where electronically generated document is sought to be demonstrated is that such electronically generated evidence must be certified and must comply with preconditions laid down in Section 84(2). See Dickson v Chief Timipre Marilin Sylva & Ors (2016) LPELR – 41257 (SC); Kubor v Dickson (2013) ALL FWLR (Pt. 676) 392 at 429

Therefore, in the light of the above, Exhibit Q7 & R not having been backed up is inadmissible. The purpose of a certificate is to authenticate the means of production. They are expunged from the records.

On the charge of uttering of certificate of occupancy in count 8 there is evidence that the 1st Respondent got it from one Mr Segun Samuel for which he paid N400,000 for. The summary is that he wanted to use it for a collateral for loan as third party documents could be used at that time but the loan application fell through, it was given to the complainant to hold as comfort that he would still pay him the money for the business and would not abscond. See page. 532 lines 13-15 of the record. He described Segun as agent to the landlord. It is curious that there was no evidence of uttering nothing was pointed as being altered. The name was the same at the lands registry. Nobody claimed that it was different and was missing; it was not given for any transaction or for sale of the property covered therein. The original document so to speak that was altered was not shown to the Court, what was cloned was not demonstrated to the Court in comparison to prove beyond doubt that it is uttered or forged.

In Ontario Oil & Gas Ltd V. FRN (2015) LPELR – 24651 (CA) this Court held relying on EZE v FRN [1987] 1 NWLR (PT 51) 506 (SC) thus:

“What really was the complaint against the Appellant? It is uttering a false document. He commits an offence under Section 468 of the Criminal Code. The nature of the document forged or falsified may go to punishments but it is otherwise immaterial to the offence disclosed. In other words, in determining Jurisdiction regard to the offence or offences charged in the information, the character and nature of the document alleged to falsified and uttered is irrelevant. But in determining the punishment, then the nature and the character of document become most material.”

In the offence of forgery and uttering of a false document the Court set down what must be proved by the prosecution in Walter Wagbatsoma V. FRN (2015) LPELR – 24649 (CA) 55 – 56, paras B -A as stated in Odiawa V. FRN (2008) LPELR – 4230 (CA); Alake V. State (1991) 7 NWLR (PT.205) 567 thus:

“The offences of forgery and uttering have been defined in Section 467(2)(c) of the Criminal Code. Their ingredients are: a) That the accused utters or forges a document, b) that he knew the document to be false, c) that he presented the said document to the other party with the intention that it could be acted upon, d) that the document was acted upon by the other party to his detriment (the 4th ingredient is not always necessary to prove once the other 3 have been established) the offence of possession of documents is a question of fact.”

In other words once documents containing false pretences as defined above are found in the possession of a person who may not necessarily be the author, the offence is complete. The offence of uttering is akin to that forgery. I therefore resolve issue 1 (issues 1, 2 & 8) in favour of the Respondents.

ISSUE 2

This issue deals with counts 1 – 4 which bothers on issuance of dud cheques. Appellant counsel submitted that Section 1 & 2 of the Dishonoured Cheques (Offence) Act was specific. He referred to the case of ABEKE v STATE (2007) 3 SC (PT.11) 105 at 106, where the ingredients of the offence of issuance of dud cheque was enumerated and that these were proved by the prosecution. That the 1st Respondent was the alter ego of the 2nd Respondent and the executive director Kayode Olulade obtained credit for and on behalf of the Respondents from PW2 which was used to fund the purported execution of a contract secured by 2nd Respondent from Dangote the sum of N20,00000. As his investment towards the execution of the contract but on the monies being paid back cheques were issued which bounced. And had insufficient funds in the account some of the cheques were returned to the issuer.

He referred to Exhibit Evidence of Pw6, from GTB, who tendered his statement Exhibit QQ, RR SS-SS8, PW7 access bank staff tendered Exhibits TT-TT4, Pw8 from Zenith bank tendered exhibits UU-UU8 and each said the account has balances below the cheques. He also said Pw3 found some dishonoured in 1st Respondent’s house cheques during an investigation as Exhibit V-V1 i.e. a guarantee bank and the Respondents also alluded to 2 of PW2’s cheques that bounced, and that from the totality of the case the evidence of the witnesses lend credence to the fact that prosecution proved its case of issuance of dud cheques especially as the 1st Respondent confirmed the cheques recovered from his house. In line with ABEKE v STATE and the Lower Court ought to have convicted him.

The Respondent counsel submitted that complainant, prosecution, investigators and defendants concur that the cheques were issued after the parting of the money in issue. From the date on the LPOs, it is clear that the parting with money has taking place before the issuance of the cheques. He posit that a clear understanding of the law is that the defendant must have obtained or induced the delivery of the money in issue before the money was given that parting of the money and issuance of the cheque must run concurrently he referred to Section 1(2)(b) of the Act that the phrase “settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued…” is very germane. He further contended that the issuance of a cheque must arise from an obligation pursuant to an enforceable contract, the debt or contract must be real, not imaginary or procured by duress and be legally proven.

He referred to evidence of DW1 that exhibits H – 17 were found in his house during the search but the complainant stated at page 531 lines 29-30 of the record that he did not present them for clearing at the bank. He also conceded under cross-examination that he most times gave DW1 and Kayode cheques to cash and they in turn pay cash into his account. On perusal of the statement PW2, or the EFCC investigators said he did not see any dud cheque issued to complainant before the Dangote transaction see page 549 lines 2 – 4. Therefore counsel argued that it is established that parties had several dealings together prior to the one leading to this appeal. He further posit that there was a memorandum between parties that the contract would mature by end of July 2009 but the complainant by crooked means obtained cheques from the DW2 before the date in exhibit J and presented these cheques (6/5/09, 11/6/09 and 27/7/09) before the date of 29th July, 1st Respondent had given reasons that they were issued due to messages of personal threats to his job, person by the complainant.

RESOLUTION

These counts are in respect of issuance of dud cheques which is a criminal offence by virtue of Section 1 of the Dishonoured Cheques (Offences). See Chief (Dr) Fajemirokun V. Commercial Bank Nigeria Ltd & Anor (2009) 2-3 SC (Pt.1135) 58; Seedvest Microfinance Bank Plc & Anor V. Paul Adedigbo Ogunsina & Ors (2016) LPLER-41346 (CA).

The provision of the act is thus:

1. (1) Any person who-

(a) Obtains or induce the delivery of anything capable of being stolen either to himself or to any other person; or

(b) Obtains credit for himself or any other person, by means of a cheque that, when presenter for payment not later than three months after the date of the cheque is dishonoured on the ground that no fund 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 -1) in the case of an individual be sentenced to imprisonment for two years without option of fine of not less than N5,000 fine.

(2) For purposes of Section (1);

(a) The reference to anything capable of being stolen shall be deemed to include a reference to money and every other description of property, things in action and other intangible property;

(b) A person who draws a cheque which is dishonoured on the ground stated in the subsection and which was issued in settlement or purported settlement of any obligation under an enforceable contract entered into between the drawer of the cheque and the person to whom the cheque was issued, shall be deemed to have obtained credit for himself by means of the cheque, notwithstanding that at the time when the contract was entered into the manner in which the obligation would be settled was not specified.

(3) A person shall be guilty of an offence under this section if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing and did believe in fact that it would be honoured if presented for payment within the period specified in Subsection (1) of this section(3)

It is pertinent to state that from the evidence on record the complainant and the 1st Respondent had being business partners long before the petition to the EFCC in Exhibit K, in fact before 2008. There were various business deals between the two which transcends beyond the deal which failed and triggered the petition. It can be seen that various payments were made for different deals and back and forth monies were given and paid back into account from this arrangements which in my view were loose and not tied to any specified deal even the prosecutions bank statements of the complainant tendered revealed more than was being contended. See under this head there were Zenith bank cheques dated 20/11/08 and 23/03/09 issued to complainant before the alleged events complained about. This was confirmed by PW2 & 3.

There is unchallenged evidence on the modus of payment that it will be exchanged for cash paid into account of the complainant.

“I agree that I do not personally participate in the business the 1st defendant collects money from me for business, all I do is to go through the business break down he prepares and the profit coming to me once satisfied, I give him money.”

The prosecution could not pinpoint specifically the contract for which the cheques were issued, the evidence extracted on record is that the cheques were issued before the Dangote deal was sealed and fell through not because of negligence but inability to raise enough finance majority of the cheques were not presented, the complainant said he presented only two and did not present others because he was sure they will be dishonoured and would incur bank charges the total of 4 cheques are said to be in question issued on 6/5/09, GTB 8/7/09, Zenith bank 14/9/09, Intercontinental 1/6/09 for the LPO transaction, Exhibit K3 & K4 for which the complainant said he advanced N20 Million.

Examining the issue more closely, it is the wordings of the act that decides whether an offence has been committed or not this means the ingredients it requires that there is an obtaining or inducement of a delivery of anything capable of being stolen, furthermore the cheque was in settlement of or purported settlement of an obligation, and the person receives credit for himself; in this case with peculiar circumstances was a business arrangement wherein both parties contribute funds for businesses the 1st Respondent gets the business and does the running around while the complainant sponsors it or gives a part of the money to bank roll the business, the 1st Respondent then performs the deal and on payment profit is shared this was confirmed by the complainant therefore in the course of this arrangement it cannot be said that the cheque was for a particular contract or settlement. The PW2 could not total the profits under the transaction, evidence abound that two of the LPOs fell through for lack of funds while the last failed because a 3rd party was unable to perform his side of the contract. It cannot be correct that this was an inducement or a settlement or payment it therefore does not qualify under this section. Furthermore the 1st Respondent contended that it was replaceable by cash and this was the modus operandi cash payments were shown in proof of this which was not denied, there was nothing on record that the PW2 was influenced. He participated financially and happily received the profits with satisfaction. These sums collected were not specified and in fact do not add up to the total figure of 20 Million see Exhibit CC4.

It was again shown that the issuance of the cheque of 6/4/09 for N1,650,000 which show by exhibit P5 that it was for another transaction. The LPOs are dated 6/4/09 and 13/3/09 Exhibit K3 and K4, during evidence the complainant stated:

“Business transactions I had with the complainant was basically Oil and Gas transactions. When I source for supply LPOS, I notify the complainant and we sit together and work out the business modalities. Usually I tell him the amount needed to execute the LPO and ask him to provide the short fall and tells me the consideration for providing the shortfall…The complainant then releases the funds for the shortfall as discussed while I then go ahead and execute the contract. I also ensure payment of the complainant’s shortfall and consideration into his account once I am paid on or before the agreed time with the complainant.”

The above extract tallies with the evidence of the complainant. PW3 the prosecutions investigating officer had this to say under cross examination:

“There was no way you can find out because some was cash, some were paid into his account there are mix transactions, it is not only Dangote transaction, payment were paid for other transaction so there is no way and we find it difficult that is why we called all of them together to explain themselves.”

Therefore I am satisfied that there is no proven settlement for the cheque issued and also that same had not been replaced by cash in the account of complainant. See exhibit B wherein about 10 different payments into complainants account by DW1 were not explained. Moreso, the transaction being settled has not been clearly identified, even the DW1 in his statement Exhibit CC1 stated that the cheques were issued as security for cash received and some cheques paid in the account were in anticipation of funds owed them from different sources which he had discussed with the complainant and had reported to area F and that this was a requirement before cash is received from him. The evidence of the DW1 was consistent with his statement and I believe that this is an exception to the rule under the dud cheque act.

The PW2 stated that he expected funds for some businesses but due to failed transactions he could not meet same with cash as he usually did. Bearing in mind the peculiar nature of the overall circumstances, I am persuaded to agree with the Lower Court that this is not a case properly under the dud cheque act. It falls under the exception in Section 1(3) of the Act. As for the evaluation of evidence all I have being trying to say is that the Appellant has not and did not show how N20 Million was taken from him, he did not disclose the previous relationship between parties and how he shared in profits of businesses between them and that he actively contributes to sponsoring the business. The picture created is that of a joint business/partnership without a set down sharing formulae. It was an open ended business, the 1st Respondent was the active partner who does the running while the Appellant is a financial partner it will not be correct that he is the sole financier he is a contributor.

An Appellate Court will not interfere with the findings, based on such evaluation unless it is found to be erroneous. See Abeke v. The State (Supra). This issue is therefore resolved in favour of the Respondents.

ISSUE 3

Appellant’s counsel in respect of count 5, enumerated the ingredients and defined conspiracy as defined by OLIVER WENDALL HOMES which was adopted in Okosun V A.G Bendel State [1985] 3 NWLR (Pt 12) 283., Abacha V State (2002) 11 NWLR (PT.779) 437; Nwankwo V. FRN (2003) 4 NWLR (PT.809) 1. EBENEZER AJE V. STATE [2006] 8 NWLR (PT 982) 345 as partnership in criminal purpose; an agreement for the purpose of an unlawful objective by lawful means.

He submitted that all the prosecution has to show in this count is that the criminal design alleged against the defendants is common between them. He referred to the cases of Ikemson v State [1989] 3 NWLR [Pt.110] 455; Erin v State [1994] 8 NWLR (p.364) 522.

He submitted that the Respondents did not produce Segun Samuel and therefore Section 167 (d) of the Evidence Act applied. He relied on Okunzua V. Amosu (1992) 7 (Pt. 11) 243; Akindipe V. State [2012] ALL FWLR [Pt.638] 805s; A.G Adamawa State V. Ware (2006) ALL FWLR (Pt. 306) 860; Enahoro V. R (1965) ANLR 132 147; Njovens & Ors V State (1973) NSCC 280; Ime David Idiok v State [2006] 12 NWLR (PT.993). Appellant’s counsel also submitted that they have proved that there is a link between Respondents and the crime that the exhibit F was procured from Segun by PW2.

In respect of issue 6, the Appellant’s counsel listed the elements that need to be proved where a defendant is charged with the offence of forgery defined same by the case of Osondu V. FRN [2000] 12 NWLR [Pt.682] 482; Babalola v State [1989] 4 NWLR (Pt.115) 264 and applied them to the case and submitted that there is ample evidence that 1st Respondent with intent to defraud, forged the certificate of occupancy exhibit F and was used in the scheme of fraud therefore the Respondents are guilty and should be convicted.

In count 7 in respect of uttering of forged certificate of occupancy, Appellant’s counsel contended that having refused to produce Mr. Segun Samuel and that since the 1st Respondent uttered the forged certificate of occupancy; that he is to be seen as the person who forged the said exhibit F and he should be convicted accordingly.

The Respondents counsel on the other hand submitted in respect of Count 6, that the underlining element of conspiracy is the agreement of two or more minds to do an act. He referred to Haruna v State (1972) 8-9 SC 174 and that in this case no direct evidence was led to prove the offence of conspiracy and that by Section 467(2) of the Criminal Code Law, 2003 that the certificate of occupancy is not genuine but that by exhibit F, WIX-XI were the basis of the charge. He contended that a photocopy of the charge was exhibit DD and PP and PP1 were tendered which proved that the document was/is the same and was neither cloned or forged. He defined cloned which did not fit the allegations leveled and that therefore no proof was offered on uttering, forgery. He relied on the cases of Aiyeola v The State (1969) 1 ALL 308; Kenneth Clarke V. The State [1989] 4 NWLR (Pt.35) 381; Alake v State (1992) 9 NWLR (PT.265) 260; SMART v THE STATE [1974] 11 SC 173.

Counsel submitted that PWs said under cross-examination that Exhibit PP – certified the copy, XI & DD authenticated Exhibit F and that Section 146 (1) applied on presumption.

He also submitted that the failure of the Prosecution to call Mr Joseph Olufemi Williams, the holder of the C of O in issue, Mr Segun Samuel who gave the document to the Respondents and other person connected therewith is fatal to the case of the prosecution.

On the 7th count which is an offence contrary to 468 of Criminal Code Law, 2003, he contended that since the document was not forged, Section 467 and 516 of the Criminal Code does not apply having not proved forgery and that it therefore cannot stand alone. Respondents counsel also submitted that the proof required in this case is proof beyond reasonable doubt, that there were material contradictions and inconsistencies in the evidence of the prosecution witnesses and enumerated them. He relied on the following cases for the point that they are fatal to the case of the prosecution: Omonga V. State (Supra); Agbo V. State (Supra); Onubogu V. State (1974) NSCC 358 at 366; Akindipe V. State (2009) ALL FWLR (Pt.452) 1163; Adeoti V. State (2009) ALL FWLR (Pt.454) 1450, R V Golder (1960) 1 WLR 1169; Joshua V. Queen (1965) 1 ALL NR 1; Egboghonme V. State (1993) 9 SCNJ 1; Jizurumba V. State (1976) NSCC (Vol 10) 156.

He contended that at best this was a failed contract and not a criminal case and that the agency was not a debt collector. He referred to Amadi v C.O.P. (2000) FWLR (Pt.2) 329 and it was a civil case. Again the Respondents counsel in conclusion submitted that the Lower Court properly evaluated the case he cited in support: Okoye V. Obiaso (2010) 8 NWLR (Pt.1195) 145; Amadi V. F.R.N. (2008) 18 NWLR (Pt.1119) 259; Wilson V. Oshin (2000) FWLR (Pt.14) 2311; Abi V. CBN (2012) 3 NWLR (Pt.1288); Citizens International Bank Ltd V. SCOA Nigeria Ltd; Kasikwu Farms Ltd V. A-G Bendel State (1986) 1 NWLR (Pt.19) 695; Yoye V. Olubode (1974) 1 ANLR (Pt.11) 118; Jinadu V. Esurombi-Aro (2005) ALL FWLR (Pt.251) 349; West African Shipping Agency V. Kalla (1978) 3 SC 22. That address of counsel is not evidence and that the facts of this case does not bring the Respondents within the provision they were charged. He referred to the cases of Medical And Dental Practitioners Discplinary Tribunal v. Okonkwo (2001) FWLR (Pt.44) 542; Rumball V. Scmidt (1882) 8 QBD 603 608.

RESOLUTION

This has to do with the offence of forgery conspiracy and uttering in counts 5, 6, 7 & 8.

This revolves round exhibit F, w1 & DD and X-X1 photocopy tendered by PW3, which are the C of O, letters to the lands ministry, reply. While 1st Respondents tendered through PW5 Exhibits PP and PP1 applications receipts and certified true copy of the C of O which was obtained from the Lagos State lands ministry and the replies thereon.

PW5 who was a staff from the said Lands ministry had stated that the exhibit F was a cloned copy without demonstrating to the Court how he arrived at the conclusion that it was cloned. See page 858 of the record. But on sighting exhibit PP AND PP1 said it was from their entries and was the certified true copy of what they had, he confirmed the authenticity of both documents i.e. Exhibits X1 & DD. In my view, this knocks out the bottom of the count. The complainant had testified that it was fake but could not prove same. The ingredients that he presented the document to the complainant to be acted upon clearly, in the light of entire evidence on record are left hanging. In Moore v FRN [2012] LPELR 19663 (CA) the Court held that:

“That to be guilty of the offence of forgery under Section 417 of the Criminal Code Laws of Lagos State, the prosecution must prove these ingredients to establish the offence against an accused person. They are the forgery of a document, writing and seal. The prosecution must prove that the accused person knowingly and fraudulently uttered a false document or writing of a counterfeit seal…

There is no burden therefore on the accused to prove his innocence…The burden rests squarely on the prosecution to prove his guilt beyond reasonable doubt. It is the prosecution that must prove that there was a robbery not for the accused to prove that there was no robbery.” see Afolabi V. The State (2014) LPELR-22249 (CA); Kaza V. State (Supra).

The second issue is on the conspiracy linked with the above, the prosecution made no attempt to link the other mind the Appellant was supposed to have agreed with. The investigation tailed off at this point, the owner of the document, the name, the parties were not interrogated only the end users which gives an inconclusive investigation, therefore, the ingredients of conspiracy has not been met as put in the case of Kaza v State (Supra) as agreements of two or more persons, a plan to carry out unlawful act. I am in agreement with the Lower Court that conspiracy has not been proved to ground a conviction.

I have read the decision in Osondu v FRN (Supra) and find that it deals with forgery and uttering of documents, precisely transfer documents from one account to another with intent to defraud and actually defrauded the victim. The Court in that appeal held that forgery and uttering may be proved from circumstantial evidence – see page 504. Furthermore, on conspiracy in that case the second mind could not be found but the Appellant had stated that it was masterminded by one “Charlie” in this case it is wide apart the 1st Respondent said he procured it from one Segun Samuel for a fee and he was to use it to as collateral for a loan, the document is clearly not in his name there is no offer as earlier said for sale, the document was said to be given to Segun Samuel by the agent to the landlord. No attempt was made to trace any of these people and in any case the document was neither forged nor uttered as confirmed in cross-examination and the light of exhibits DD, PP and PP1. PW6 showed that he did not know the difference between when a document is said to be cloned and when it is not in their entry and did not explain this, besides the prosecution relied on this witness and his evidence and did nothing more. In the Osondu’s case, the Appellant obtained credit for himself it was traced to his different accounts but in this case it was not the case therefore the Osondu’s case is distinguished from the case at hand and the principles are clearly proved. Appellant in that case said Charlie took a large portion and he had 30% of the proceeds, conspiracy was proved. I am unable to apply same in this case. I therefore resolve issues 5, 6, 7 in favour of the Respondents.

On issue 2 which I have saved for the last. The facts of this case from the start was based on a faulty foundation in that the complainant/victim in its exhibit K played innocent and made out a clear case of obtaining by false pretence when there was abundant evidence that he and the 1st Respondent were high players in businesses which were very beneficial to both of them. They were so involved in the business that they continued while still tinkling with the Dangote contracts obviously they moved from one deal to another that there was no need to clearly separate the accounts in the deals until the failed deal which from evidence and facts emanating from the investigators’. The 1st Respondent incurred heavy losses in trying to secure the Dangote deal and others to cover up and recover the losses he sold his car to raise money, while the alleged victim sat and waited for the fruits of his investment and called for a pound of flesh when it was not coming. Suddenly, the trust and friendship went bad and he ran to the EFCC. A close study of the trends cumulates as the Lower Court also found this in a deal gone bad and in their understanding all must be sacrificed to recover all.

The amount was not known, nothing to show the total amount on each deal between parties except what could be deduced from pieces of results of investigation yet, they did not add up. The question is, is this a criminal case clear and cut unlike OSONDUS case? I am afraid the answer is no.

Much as the EFCC has wide powers there are limits else, it will become a jack of all trade and master of none. It could not be a correct interpretation of the enabling act. Save for the issue of dud cheques raised, this is purely a civil issue; a breach of contract to be precise. Thus in law the EFCC ought not to meddle into purely civil disputes between persons. The EFCC cannot upon the instigation of the complainant wade in with all its resources. This issue could have been settled via a civil action still with proof on the complainant but this time with preponderance of evidence. This much has been said by the Supreme Court in Diamond Bank Plc v HRH Eze (Dr) Peter Opara & Ors (2018) LPELR – 439070 (SC), per BAGE, JSC held that:

“It is important for me to pause and say here that the powers conferred on the 3rd Respondent i.e. the EFCC to receive complaints and prevent and/or fight the commission of financial crimes in Nigeria pursuant to Section 6(b) of EFCC Act Supra does not extend to the investigation and/or resolution of disputes arising or resulting from simple contracts or civil transactions in this case. The EFCC has an inherent duty to scrutinise all complaints that it receives carefully, no matter how carefully crafted by the complaining to seek appropriate/lawful means to resolve their disputes.”

It is at best a breach of contract which is the foundation of the petition but was twisted to curry favour and action on the path of EFCC. There are remedies out here in damages but the complainant chose to waste tax payer’s money based on his incorrect petition, a word is enough for the wise. I rest my pen at this stage except to add that the issue is resolved in favour of the Respondents.

This appeal lacks merit and is accordingly dismissed. The judgment of the Lower Court coram ONIGBANJO, J., of the High Court of Lagos State in charge No: ID/215C/2010 is hereby affirmed.

NIMPAR, JCA

I have read in draft the judgment just delivered by my learned brother ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA and I agree with the reasoning and conclusion reached. Section 1 (3) of the Dishonoured Cheques (Offences) Act provides thus:

“A person shall not be guilty of an offence under this section if he proves to the satisfaction of the Court that when he issued that cheque he had reasonable grounds for believing, and did believe in fact, that it would be honoured if presented for payment within the period specified in Subsection (1) of this section”

After going through the facts and evidence adduced during trial, I too am of the view that the Respondents reasonably believed in fact, that the cheque would be honoured if presented for payment because they expected monies to be paid into the 2nd Respondent’s account. Consequently, this case clearly comes under the exception in Section 1 (3) of the Act.

It is for this reason and the other reasoning in the lead judgment, that I too dismiss the appeal and abide by the consequential orders made in the lead judgment.

OGAKWU, JCA

I agree with the leading judgment of my learned brother, Abimbola Osarugue Obaseki -Adejumo, JCA, which has just been delivered.

The evidential burden in criminal trials is for the prosecution to prove its case beyond reasonable doubt. Where there is any doubt, the doubt must be resolved in favour of the accused person: Ugboji vs. The State (2017) LPELR (43427) 1 at 54-55 (SC), Okashetu Vs. The State (2016) LPELR (40611) 1 at 34 (SC) and Ndidi vs. The State (2007) 13 NWLR (PT 1033) 633.

From the evidence, the antecedents of business relationship and dealings which had flourished in the past between the complainant and the accused persons created a lot of doubt as to whether there was any offence committed, subject of the charges, or if it was the normal dealings they had always had, but which had gone awry on this occasion.

In the circumstances, the Lower Court properly evaluated the evidence to arrive at the conclusion that the offences charged were not proved beyond reasonable doubt. The evaluation flows from the evidence on record and the findings are not perverse. An appellate Court will therefore not interfere. See Eze vs. FRN (2017) LPELR (42097) 1 at 78 (SC) and Uche vs. The State (2015) 11 NWLR (Pt.1470) 380 at 397.

It is for the foregoing reason and the more detailed reasoning and conclusion in the leading judgment which I was privileged to read in draft, that I equally hold that the appeal is devoid of merit. The appeal is dismissed and the judgment, of the Lower Court is also affirmed by me.

Appearances:

Dr. Benedict Ubi with him, Amochelu For Appellant(s)

N. O. Olagunju For Respondent(s)