Omorede Darlinton V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
The Appellant was the 2nd accused person at the trial Federal High Court, Benin. He was tried along with two other persons for offences under the Advance Fee Fraud and Other Related Offences Act, 2006. The Appellant was convicted on counts 1, 4 and 5 of the charge. The said counts read thus
- That you Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa Between the months of May and August, 2008 at Benin City did conspire amongst yourselves to commit felony, to wit: obtaining money by false pretence from one Cynthia Taylor F, an American National and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3), of the Advance Fee Fraud and other Related Offences Act, 2006.
- That you, Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa on or about the 25th day of June, 2008 at Intercontinental Bank Plc, Mission Road Branch, Benin City – with intent to defraud did obtain the sum of $1,000 USD from one Cynthia Taylor F, an American National, through western Union Money Transfer
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under False pretence that the sum of money would be used for the processing of a bank loan in favour of the said Cynthia Taylor, facts which you knew to be false and thereby committed an offence contrary to Section 1(1)(a), and punishable under Section 1(3), of the Advance Fee Fraud and other Related Offences Act, 2006.
- That you Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa on or about the 2nd day of July, 2008 at Intercontinental Bank Plc, Mission Road, Benin City with intent to defraud, did obtain the sum of $2,320 USD from one Cynthia Taylor ‘F’, an American National, through Western Union Money Transfer, under the false pretence that the said sum of money would be used for the processing of a bank loan in favour of the said Cynthia Taylor, facts which you knew to be false and thereby committed an offence contrary to Section 1(1)(a), and punishable under Section 1(3), of the Advance Fee Fraud and other Related offences Act, 2006.
The conviction and sentence of the Appellant, imposed by the trial Court, were subsequently on the appeal of the Appellant to the Court of Appeal (the Lower Court)
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affirmed as his appeal was dismissed: hence this further appeal.
Two witnesses testified at the trial. Part of the evidence of the Pw.1 (ex facie pages 67 – 70 of the record) that remained unchallenged and unscathed by cross-examination runs thus. That the 1st accused, on his arrest –
In his statement he confessed to be the brain behind the scam scandal and he said that he started as pen-pal to Cynthia Taylor before he introduced loan scam. He promised to help her obtain or secure loan from a bank in Nigeria and asked for an advance fee for processing. We asked him how many times he received money from 1st Accused said he could not remember but he knew he collected severally.
He continued this scam until when he was ready for his Youth Service before he handed it over to his friend the 2nd Accused to continue.
The next day the 1st Accused on 6.4.2011 took us to Omerede Darlinton, (the) 2nd Accused, where we arrested him.
2nd Accused equally admitted that the 1st Accused handed over the scam to him to continue. The 2nd Accused used his cousin’s name, Iyokho Nosa, the 3rd Accused to collect the money and the proceeds were shared between
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him, the 2nd Accused and the 1st Accused and he settled the 3rd Accused person who was his cousin.
The Pw.2 recorded four statements, Exhibits J 1-4, of the Appellant respectively on 6.4.2011, 7.4.2011, 11.4.2017 and 15.4.2011. The statements were said to have been voluntarily made and recorded. An issue has been made, in this appeal, of the voluntariness and admissibility of these statements. I shall come to it anon.
At the trial Court and the Lower Court an issue was made that the absence of the complainant, Cynthia Taylor, and her counsel, Chi Obi-Igwe, at the trial, and the fact that they did not testify had seriously undermined the trial and vitiated the prosecution. The Lower Court relying, inter alia, on UGWU V. THE STATE (1998) 7 NWLR (Pt.558) 397 at 408 and UDO v. THE STATE (2006) 15 NWLR (Pt.1001) 179 (SC), dismissed the contention on the grounds that the prosecution is not required to call every witness, or a host of witnesses to testify, once from the material witnesses they are able to prove their case beyond reasonable doubt. That is the law. The Lower Court, in my firm view, cannot be faulted on this. There is no rule of
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evidence or criminal procedure that makes it compelling or mandatory that the complainant must adduce evidence personally in proof of his complaint. Agreed, in most cases the complainant starts the burden of proof by leading evidence to substantiate his complaint that is the basis of the charge: UGWU v. THE STATE (supra). That is the rule of evidence or criminal procedure, and it is also not sacrosanct.
In this further appeal the Appellant appears to have shifted position a little. His issue 1 reads:
Having regard to the Supreme Court decision in the case of BENJAMIN THOMAS OPOLO V. THE STATE (1977) ALL NLR (re-print) 312 as to the importance of documentary evidence made by the complainant to be tendered by him; whether the Court of Appeal was right when the Court affirmed that it was not necessary for the complainant to come to Court having been traumatized by the act of the Appellant when there was no evidence of the said traumatisation proffered at the trial Court.
(emphasis supplied)
I have not been able to find from the judgment of the Lower Court on appeal herein any passage alluding to this charge that the Lower Court imported and took into
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consideration this extraneous matter to warrant its holding that it was not necessary for the complainant to come to Court having been traumatized by the act of the Appellant”. The charge is irresponsible, unwarranted and professionally unethical for any counsel, worth being called an officer of any Court of law, to do. Appellant’s counsel, Olayiwola Afolabi, argued this issue 1 at pages 5 – 8 of the Appellants brief of argument. He never once anywhere therein pointed to the passage in the Lower Courts judgment where the lower Court affirmed the rather bogus or extraneous statement attributed to the trial Court.
There is no doubt, and it is trite as well, that the Appellant has the burden of establishing his assertions. He has a duty to establish the assertions made in the complaints either in his grounds of appeal or the issues formulated from the grounds of appeal for the determination of his appeal. Section 131(1) of the Evidence Act, 2011 is quite categorical on this: whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
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This principle applies also in appellate Courts.
In my firm view the Appellant has failed to substantiate the substance of his complaint or assertion in his issue 1. In any case, it is not every error or slip committed by the Court below that entitles the appellant to have his appeal allowed and the judgment appealed set aside. The error committed by the Court below entitling the appellant to succeed in setting aside the decision appealed is one that is substantial and resulting in a miscarriage of justice.
The Appellant also complains that his bail was revoked suo motu by the trial Court when he raised objection to the admissibility of his extra-judicial statements, Exhibits J 1 4 and that notwithstanding the fact that the prosecutor agreed to holding trial – within – trial to determine the voluntariness or otherwise of his making of the alleged confessional statements the trial Court revoked the bail of the Appellant in order to scuttle the trial-within-trial and thereby coerced the Appellant to withdraw his objection. The application for trial-within-trial appears to be ruse or ploy to delay proceedings. At page 73 of the record the minutes
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of the proceedings on 13th March, 2012 shows objection to the admissibility of the extra-judicial statements of the accused persons. It also shows that all counsel agreed on 3rd May, 2012 for the trial-within-trial to commence; that is 50 days thereafter. The trial Court, granting the adjournment, stated:
“It appears there is likelihood the case may take longer time and we cannot guarantee accused bail till then.
Case adjourned (to) 3.5.2012 meanwhile Accused persons bail is revoked.”
The proceedings resumed on 3rd May, 2012. At the commencement of the resumed proceedings Appellant’s withdrew “our objection for the tendering of the 1st and 2nd Accuseds’ statements in evidence. Consequently, the extra-judicial statements of the Appellant, as the 2nd Accused, were admitted in evidence as Exhibits J1 – J4. The proceedings continued to the conclusion of the testimonies of the Pw.1 and Pw.2.
The revocation of the bail the accused person was enjoying without blemish is an exercise of judicial discretion, which discretion has to be exercised judicially and judiciously. The reason for the exercise of the discretion must be given:
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CEEKAY TRADERS LTD V. GENERAL MOTORS CO. LTD (1992) 2 NWLR (Pt.222) 132 (SC). Once the Court grants bail to an accused person; it ought not in law revoke such bail, unless there is evidence of some changed circumstances placed before it: AMEH EBUTE & 5 ORS v. THE STATE CA/L/196/94 unreported of 21st July, 1994. The Court in exercise of its discretion must only act on empirical facts or materials placed before it and not on extraneous or irrelevant matters: UNIVERSITY OF LAGOS v. AIGORO (1985) 1 SC 265 at 271. I agree with the Appellant that the trial Court, in revoking his bail acted inappropriately, wrongly and arbitrarily.
Appellant’s counsel extends the argument from there. He submits that the bail of the appellant was revoked as a ploy to coerce the Appellant to withdraw his objection to the admissibility of his extra-judicial statements, Exhibits J1 J4; and that a reasonable observing the proceedings would come to the conclusion that the Court was not fair to the Appellant. For this alleged breach of the Appellants right to fair trial, the cases KOTOYE V. CBN (1989) 1 NWLR (Pt.98) 419; PAM v. MOHAMMED (2008)
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16 NWLR (Pt.1112) 1 at 85, were cited.
Be it noted that the wrong and arbitrary order of the trial Court made on 13th March, 2012 revoking the bail of the Appellant was not appealed, even though it was appealable by virtue of Section 318 of the 1999 Constitution, as amended. The Appellant in the circumstance is taken to have accepted it.
The suggestion that the arbitrary revocation of the bail of the Appellant was the reason for the Appellant’s counsel on 3rd May, 2012 (50 days after) withdrawing their objection to the admissibility of the Appellants extra-judicial statements, said to have been made involuntarily, and also their request for trial-within-trial. Neither the Lower Court nor this Court, and any Court for that matter, does mind reading. Courts of law act on empirical facts placed before them: AMEH EBUTE & ORS v. THE STATE (supra). The success of this issue depends, as it appears, on this hazy and unproven assertion. The fact sustaining the issue is not borne by the printed record. That fact must be empirical and not suppositious or divinatory. I think, and I so hold, that the suggestion, that Appellants counsel withdrew,
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the objection to the admissibility of the Appellant’s extra judicial statements as well as the request for the trial within-trial because of the revocation of the Appellant’s bail, is tenuous and unsubstantiated.
The facts of this case, including their absence, do not warrant the invocation of the principle in R. V. MADISON (1988) 1 WLR 139; R V. NATH 8 WR 53 that a confession is inadmissible if the accused person was tricked into telling the truth: see also Section 29 (2) Evidence Act, 2011. No facts exist in this case to warrant any suggestion that the Appellant was tricked into telling the truth of his roles in this matter. The two cases have been cited out of con by the Appellant’s counsel.
I had earlier reproduced part of the testimony of the Pw.1 (at pages 67 – 70 of the record) affirming that the Appellant voluntarily made the disputed statement. The Pw.1 was not cross-examined on this evidence that was damning and adverse to the Appellant’s interest. This later posture of the Appellant, under his issue 2, is clearly a futile effort at prevarication. And he is not permitted to approbate and reprobate on this same issue.
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With or without the confessional statements admitted in evidence as Exhibits J1 – J4 the viva voce confession of the Appellant, testified to by the Pw.1, could still sustain the conviction and sentence of the Appellant.
In any case, it is obvious from the Appellants 3 issues at the lower Court, reproduced in the judgment of the Lower Court at pages 283 – 284 of the record, that the extant Appellant’s issue 2 was not an issue at the Lower Court. It is a fresh issue raised here for the first time without leave first sought and obtained. It is completely untenable.
I do not think that there is any dispute, and the law is trite, that in criminal proceedings the burden of proving the guilt of the accused is always on the prosecution. Both the appellant and the Respondent are ad idem on this.
It is clear from the Pw.1s unchallenged evidence, at pages 67 – 71 of the record, that the Appellant knew from the inception that the 1st Accused was recruiting him into the scam business of defrauding Cynthia Taylor. The 1st Accused initiated the Appellant into the scam as his successor in the scam business as he 1st Accused was proceeding to Kano State for his
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compulsory National Youth Service Corp (NYSC) Service. The Pw.1 was quite emphatic that “the 2nd Accused (the Appellant) equally admitted that the 1st Accused handed over the scam (business) to him to continue”. To actualise the scam the Appellant brought in his cousin, 3rd Accused, to be collecting the money. On the charge of conspiracy, this evidence is not at variance with the charge to warrant invocation of the principle that, where the evidence led is at variance with the charge, the charge has not been proved beyond reasonable doubt: AKINLEMIBOLA V. COMM. OF POLICE (1976) 6 SC 207. The testimony of the Pw1 taken with Exhibits J1 J4, the confession of the Appellant, prove beyond reasonable doubt the charge of criminal conspiracy the Appellant was convicted and sentenced for.
I read the defence evidence of the Appellant and the submissions of his counsel, I hold the firm view that no reasonable doubt exists about the complicity of the Appellant in the conspiracy charged. Accordingly, I cannot fault the Lower Court when it affirmed the conviction and sentence of the Appellant for the criminal conspiracy.
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The charges 4 and 5 the Appellant was convicted and sentenced for having the same elements, except the dates. The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts I. A pretence is made by way of representation.
II. From the accused person.
III. To the person defrauded.
IV. The representation is a pretence.
IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the to the accused or some other person.
VIII. The property transferred is capable of being stolen i.e. is asportable.
These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN
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(2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.
The offence charged cannot be said to have been proved beyond reasonable doubt when all the essential elements or ingredients of the offence have not been proved beyond reasonable doubt. To this extent, I am in agreement with the submission of the Appellant’s counsel on the authority of ALABI v. THE STATE (1993) 13 LRCN 977 at 984. Every ingredient of the offence charged must be established by the prosecution in order to succeed.
The Appellant, as submitted by the Respondents counsel, has admitted in Exhibit J1 that he represented himself to Cynthia Taylor, through e-mail, that he was the manager of the bank that would give her loan and demanded from her $1000 USD as the processing fee for the loan, He admitted in the same Exhibit J1 that Cynthia Taylor, acting on representation, that was false, started transferring money to the Appellant through the account of the 3rd Accused nominated for that purpose. The account was the personal and private account of
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the 3rd Accused. It was not the account of any loan giving bank or enterprise. The Appellant further admitted in the same Exhibit J1 that the sums – $1000 USD and $2,320 USD, respectively, the subject of charges 4 and 5 were sent into the account of the 3rd Accused by the said Cynthia Taylor. The said sums were received or cashed.
The unchallenged evidence of the PW1, corroborating Exhibit J1, is that:
The 2nd Accused used his cousin’s name Iyokho Nosa, the 3rd Accused, to collect the money and the proceeds were shared between him 2nd Accused and the 1st Accused and he settled the 3rd Accused who is his cousin.
The purported loan was a hoax, contrived fraudulently to induce Cynthia Taylor to deliver or transfer her money to the Appellant through the account of the 3rd Accused. Thus, as submitted by the Respondents counsel, the purported loan the Appellant falsely represented to the said Cynthia Taylor, was part of false pretence. Appellant knew that he was not in a position to give any bank loan to Cynthia Taylor or any other person. He was never a money lender or a manager of any bank. His false representation was made to the
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said Cynthia Taylor thorough the e-mail address: [email protected]. The intention to defraud the said Cynthia Taylor was clear from the inception. There is no doubt that Cynthia Taylor transferred the sums of $1000 USD and $2,320 USD, a thing capable of being stolen, to the account of the 3rd Accused nominated to her for the fraud by the Appellant. There is also no doubt that the said sums were sent and received through western Union money transfer.
The confession in Exhibit J1 – J4, corroborated by the viva voce evidence of the PW1, is enough to sustain the conviction of the Appellant on counts 4 and 5 of the charge. An extra-judicial confession made voluntarily which is positive and unequivocal and amounting to admission of guilt of the person charged can be used by the Court to predicate the conviction of the accused on regardless of whether the maker resiled from it or attempted to retract it: STANLEY ADIGUN EGBOGHONOME v. THE STATE (1993) 7 NWLR (Pt. 306) 383. In DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (Pt.139) 392; (1990) 21 NSCC (Pt.2) 313, admissions are held to be the best evidence. The old adage is no man ordinarily tells lies
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to incriminate himself.
The Lower Court was not in any error in affirming the conviction and sentence of the Appellant on counts 1, 4 and 5. As found by the Lower Court, the Appellant admitted that he was quite aware of the fraud being perpetrated by the 1st Accused. He continued with the fraud as the successor in fraud of the 1st accused and brought in his cousin, the 1st Accused, in the fraudulent scheme. In the circumstance I have no basis to interfere with the concurrent findings of fact on which the conviction of the three offences charged in counts 1, 4 and 5 is premised. The concurrent findings are compelling. I hereby affirm them.
At the Lower Court there was no complaint that “the sentence passed against the Appellant is (was) excessive having regards to the fact that the Appellant is (was) a first offender”. The Lower Court therefore had no opportunity or reason to consider the issue: whether the sentence passed against the Appellant was excessive. This issue of the excessiveness of the sentence brought in via ground 8 of the Grounds of Appeal is therefore a fresh issue.
There is no doubt, as submitted for the Appellant, that
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this Court, being the Apex Court, has right, indeed power, to reduce the sentence imposed by the trial Court, where the ends of justice justify it. Appellant’s counsel for this commended to us, my Lords, the cases of EKPENYONG V. THE STATE (1967) ALL NLW 285; GANA v. THE STATE (1968) 1 ALL NLR 352, and MOHAMMED v. C. O. P. (1969) 1 ANLR 465. The Court of Appeal, by dint of Section 15 of the Court of Appeal Act, 2004 also has that power, if and when its jurisdiction is properly invoked. The same power enures to this Court by dint of Section 22 of the Supreme Court Act.
The Supreme Court does not have jurisdiction to hear and determine appeals directly from the High Court. Section 233(1) of the Constitution states, unequivocally, that the Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal. The Supreme Court does not take appeals directly from the decisions of the High Courts, or Courts below the Court of Appeal.
This issue of the excessiveness of the sentence imposed by the trial High Court, brought directly to this Court, challenges the discretion of the trial High Court.
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Ground 8 of the Grounds of Appeal does not complain that the Court of Appeal acted in error in affirming the sentence imposed by the trial High Court. The Appellant, in the circumstance and by virtue of Section 233(2) of the Constitution cannot appeal directly to this Court as of right complaining, as he does, that the sentence passed against him by the trial High Court is excessive. The 8th ground of appeal is in the circumstance incompetent. Being a fresh issue it requires leave first sought and had before it can lawfully be entertained by this Court.
It is true this is the Apex Court in Nigeria. It is also a Court of law whose jurisdiction is statutory. The enabling provisions having prescribed and limited its jurisdiction, the Supreme Court will act ultra vires if it acts in excess of the jurisdiction donated to it by the Constitution.
Ground 8 of the Grounds of Appeal and issue 4 formulated therefrom being incompetent are both hereby struck-out. The appeal, on issues 1, 2 and 3 canvassed by the Appellant, is devoid of any merits. It is accordingly dismissed. The conviction of, and the sentence imposed, on, the Appellant by the trial
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High Court in charge No.FHC/B/57C/2011 which conviction and sentence were affirmed by the Court of Appeal in the appeal No. CA/B/349/CB/2013 are hereby further affirmed.
SC.837/2014
