Abatan Oluwasheun V. The Federal Republic of Nigeria (2016)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
This is an appeal against the Judgment of the Gombe State High Court of Justice in Charge No. GM/4C/2009, delivered on the 10th August, 2012, wherein the Lower Court entered Judgment in favour of the Respondent herein in a charge against the Appellant for obtaining money by false pretences.
The brief facts of the case are this: The Appellant set up an office in Gombe as an Outlet Manager of GI Network International Limited, a company engaged in the business of raising money for property development. This was with the knowledge and consent of the company after having registered as a member and been trained for the responsibilities of a manager. The objectives and operational policy of the company business were spelt out in its flyers, (Exhibits 1 and 2) as follows: a pragmatic means to help most Nigerians achieve their dreams of becoming home owners through the Multi Level Marketing (MLM) method of savings by making enough savings to acquire non-controversial but affordable homes. They stated that their products therefore, as real estate agents, were selling of land,
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houses and home care products to Nigerians through the MLM system. The operation of this policy referred to as ?Multi-Level Marketing?, was as follows: members were registered with a modest sum of N3, 500.00 and thereafter, receive monthly benefits in kind and in cash whenever they introduce a new member to the program. The program consisted of seven stages. The benefits in kind were household products such as creams, soaps, perfumes, etc; while the cash rewards, referred to as ?bonus?, was from N500.00 for those at the level of Stage 1, N1000.00 for those on Stage 2, and so on until they reach Stage 7. A new member would start from Stage 1 Level 1, and depending on his performance, would move up the ladder until he reached Stage 7. A member who attains Stage 7 would then be rewarded with the award of a house or the sum of $2000 as an incentive for his performance. Thereafter, he could commence the cycle again from Stage 1. On the face of the flyers therefore, the promise for the members is: ?An easy strategy for making N3, 937, 000 to build your own house?.
The Appellant, after registering as a member in the
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program and been trained as an Outlet manager, moved to Gombe from Lagos in February, 2008. A few months thereafter, he began operating the business by marketing and registering members into the program. In line with the training he received as an Outlet Manager which allowed Managers to be independent of the parent company at the headquarters in Lagos, and in addition to the initial training materials he received from the company such as flyers and ID cards, the Appellant printed more flyers, receipts, and the like, to facilitate the smooth and effective running of the office. In addition however, out of his own initiative, he developed a further marketing strategy which he coined ?long term and short term investments?. The ?long-term investment? was essentially in tandem with the operational policy of the parent company whereby persons register as members and move through the seven stages until they reach the objective of acquiring a house or the sum of $2000. The ?short term investment? however consisted of a registered member paying a lump sum of money into the personal account of the Appellant as an investment, and
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after a period of six weeks, he would receive 21% on the sum paid as a return on his investment, plus a refund of his principal sum. Apparently, this was not in line with the operational policy of the parent company, and the President and Operational Director at the parent company in Lagos were not aware of the activities of the Appellant in this regard.
Meanwhile, the Appellant continued to promote and market the short-term investment program to more and more persons who deposited large sums of money into his account with a view to reaping from their investments after a period of six weeks, as promised. He even persuaded the Commissioner of Education, Gombe State, of the viability and efficacy of this program and the benefit to Nigerians, such that he was granted free access to schools under the Ministry to market the program to teachers and other staff. The program achieved quite a measure of success such that between the months of August and September, 2008, he had 39 registered members on the program who had invested the total sum of N2, 395, 700.00 (Exhibits 14A, 14B and 14C).
?However, the investments were yet to mature when he was arrested by
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the operatives of the EFCC in Gombe. The EFCC, acting on intelligence reports received, arrested the Appellant, sealed up his office and froze his bank account. They accused him of obtaining money under false pretences. The Appellant was subsequently charged on six counts, which charge was later amended and increased to eight counts as contained in the Amended Charge dated 27th May, 2010. Each of counts one to six in the Amended charge accused the Appellant of obtaining money by false pretences from named persons under Section 1(1) (a) and punishable under Section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006; while by Counts 7 and 8, he was charged with Forgery and being in possession of a forged document punishable under Sections 364 and 368 of the Penal Code Law (pages 45-48 of the printed Record).
?The Appellant was duly arraigned before the High Court of Justice, Gombe State where he pleaded not guilty to all counts of charge. To prove their case, the prosecution called nine witnesses, while four witnesses, (the Appellant inclusive), testified for the defence. The President and the Operational Director of the parent company,
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G.I. International Network Limited, testified as PW1 and PW2, while persons who paid monies to the Appellant for registration as members of the company in Gombe and also as investors into the investment program of the Appellant testified as PWs 3, 4, 5 and 6. PW7 and PW8 were EFCC operatives who arrested the Appellant and conducted investigations into the allegations of obtaining money by false pretences and forgery.
?At the close of trial and in the course of final oral addresses by Counsel, the Prosecuting Counsel withdrew counts 7 and 8 of the Amended Charge, whereupon the learned trial Judge discharged and acquitted the accused person on the said counts of charge. In addition, the Prosecution having not led any evidence in respect of counts 2 and 4 of the Amended Charge, the Appellant was discharged and acquitted on both counts. The Judgment of the Lower Court was delivered on 10th August, 2012, wherein the Appellant was convicted on counts 1, 3, 5 and 6, and sentenced to a period of seven years imprisonment without an option of fine. The Lower Court also ordered that the properties confiscated in the office of the Appellant be forfeited to the
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Federal Government of Nigeria.
Dissatisfied with the Judgment of the Lower Court, the Appellant promptly filed a Notice and Grounds of Appeal on the 23rd October, 2012 wherein he complained on five grounds. Thereafter, with the leave of this Court sought and obtained, he filed six additional Grounds of Appeal, which were incorporated into an Amended Notice of Appeal filed on 29th October, 2015, as Grounds 6 to 11.
?In line with the rules and practice of this Court, the Appellant filed his Brief of argument on 29-10-15, and the Respondent responded thereto with his Brief of argument filed on 18-02-16, but deemed duly filed on 22-02-16. At the hearing of the Appeal on 22-02-16, M.A. Galaya Esq, learned Counsel for the Appellant, adopted the Appellant?s Brief of argument as the argument of Appellant in the Appeal. He urged the Court to allow the Appeal and set aside the Judgment of the Lower Court. In like vein, Onjegu Obe Esq, learned Counsel for the Respondent, adopted the Respondent?s Brief of argument as the submissions of the Respondent in the Appeal. He urged the Court to dismiss the Appeal and affirm the Judgment of the trial Court.<br< p=””
</br<
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In the respective Briefs of argument, whereas the Appellant distilled two issues for the determination of the Appeal, the Respondent framed three issues. After a careful perusal of both sets of issues, I am of the view that the issues as distilled by the Appellant will serve to finally resolve all the issues thrown up by the eleven grounds of appeal. They are therefore adopted for consideration by this Court in the resolution of the Appeal. They as set out hereunder:
”1. Whether the learned trial Judge is justified in convicting the Appellant on allegations of false pretences not covered by the charge before the Lower Court, and upon the unreliable and discredited evidence of PW1 and PW2 who have their own interest to protect? (Grounds 1, 2, 3, 4, 6, 7, 8, 9 and 11 of the Amended Notice of Appeal)
2. Whether it was not wrong of the learned trial Judge to have convicted the Appellant and confiscated some of his properties on the allegation of representation to pay interest after six weeks of investment, which representation relates to a future event or occurrence and discloses no criminal offence? (Grounds 5 and 10 of the Amended Notice of
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Appeal)”
Issue one:
Whether the learned trial Judge is justified in convicting the Appellant on allegations of false pretences not covered by the charge before the Lower Court, and upon the unreliable and discredited evidence of PW1 and PW2 who have their own interest to protect?
Learned Counsel for the Appellant submits that the allegations contained in Counts 1, 3, 5 and 6 upon which the Appellant was convicted are similar and all brought under Sections 1(1)(a) and 1(3) Advance Fee Fraud and Other Related Offences Act, 2006, and that the allegations of false pretences are common to all the counts. Thus, the same ingredients are required to be proved by the Prosecution beyond reasonable doubt for all the counts of charge. He contends that in proving the first ingredient of the offence, the prosecution put forward the evidence of PW1 and PW2 at the trial where both witnesses bluntly denied the involvement or engagement of their Company in the real estate business. He however argued that the denial contradicts the contents of the Company?s flyers and the Memorandum of Association, (Exhibits 2 and 17 respectively). He argues that therein, it
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is stated that Guarantee Investment Network International Limited, of which PW1 and PW2 are the Operation Director and President respectively, engages in real estate business. He contends that both witnesses chose to deny this obvious fact to avoid criminal liability as they were the principals on whose behalf the Appellant acted and could have also been charged under Section 10 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006. However, after a thorough scrutiny of both Exhibits 2 and 17, and placing same side by side with the testimonies of PW1 and PW2, the learned trial Judge found for a fact that the assertion that the company is engaged in real estate business is true.
?Learned Counsel submits that the second aspect of the charge in respect of false pretence deals with the gaining of interest and owning a house after investing in the company. He contends that it was also pronounced upon by the learned trial Judge at page 209 of the Record. Despite this finding, he contends that the Lower Court surprisingly proceeded at page 212 of the Record to consider and rely on the evidence of ?short term investment? and ?long
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term investment? given by PWs 3, 4, 5 and 6, as if there was any such allegation in the Charge; that it applied the same holding in respect of counts 1, 3, 5 and 6 of the Charge. The Appellant was consequently convicted on the four counts and sentenced to seven years imprisonment without an option of fine.
Counsel submits that none of the counts in the Charge raised any allegation of false pretence on ?short term investment? or long term investment?, and those pieces of evidence by PWs 3, 4, 5 and 6 regarding this issue which the Lower Court relied upon are at variance with the allegation of false pretence laid out in the Charge before the Lower Court. He relies on Adeyemi v. Commissioner of Police (1961) WNLR 137 at 139. He therefore contends that the allegations of false pretence in each of counts 1, 3, 5 and 6 were not proved beyond reasonable doubt by the Prosecution since the evidence adduced is at variance with the allegations laid out in the Charge.
?Counsel further submits that the evidence of PWs 3, 4, 5 and 6 relied upon by Lower Court in convicting the Appellant relates to an allegation of false pretence regarding
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the engagement of G.I. Company in ?short term? and ?long term? investment, and the collection of interest six weeks from the date of the investment. He argues that this is different from the allegation of engagement in real estate business contained in the Charge. Counsel also argues that the learned trial Judge did not exercise the necessary caution in accepting and relying on the evidence of PW1 and PW2 regarding the engagement of their Company (G.I.) in the ?short term investment? and ?long term investment?, as well as the issue of six weeks interest. He contends that the evidence of the Appellant and other pieces of evidence at the disposal of the Lower Court leads to the irresistible conclusion that both PW1 and PW2 engaged in a desperate effort to twist the facts, fabricate falsehood and deny the obvious, with a view to denying their involvement in any of the allegations levelled against the Appellant.
?Counsel also submits that both PW1 and PW2 are the alter egos of Guarantee Investment, and that it was on their behalf that the Appellant acted as an Outlet Manager. He thus contends that a relationship
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of principal and agent existed between the Appellant on the one hand and PW1 and PW2 on the other. Also, both PW1 and PW2 admitted in their evidence that the Appellant remitted the sum of N1, 000,000.00 (One Million Naira) into the company account from the money alleged to have been collected under false pretences in the charge. Counsel submits that it was also part of the evidence before the Lower Court that the Appellant was prompted and instigated by the Directors of the company (PW1 and PW2) to source for funds to revive the company from its financial crisis after the company was defrauded. He argued that it was therefore not surprising that both PW1 and PW2 kept mute even after seeing Exhibits 5 and 6 designed by Appellant on his own initiative to achieve the company?s target. Without conceding that the short term investment and long term investment programs were not part of the programs of the company, Counsel submits that the failure or neglect of the company directors to report the Appellant to the Police as they allegedly threatened to, or to take decisive action to stop the Appellant from using un-approved programmes, amounted to a tacit
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approval and ratification of the actions of Appellant.
Counsel further submits that the evidence of DW2 buttressed the conclusion that PW1 and PW2 deliberately denied the Appellant in order to avoid criminal liability. He claims that DW2 testified that he spoke with PW1 who told him that the reason he disowned the actions of the Appellant was because of the involvement of the EFCC (pages 121 and 190 of the Record). He contends that this crucial piece of evidence was ignored by the learned trial Judge who chose instead to rely on the unreliable, uncorroborated and discredited evidence of PW1 and PW2 who, Counsel claimed, were accomplices and persons who have their own interest to protect. He further submits that both PW1 and PW2 gave evidence on oath which contradicts the contents of Exhibits 2 and 17. Also that being accomplices, their testimonies are suspect and unreliable and require corroboration. Counsel therefore submits that the conclusion of the learned trial Judge at page 217 lines 1 -9 of the Record is not justified in law and not supported by the evidence before the Court. He relies on Amadi v. State (1993) 8 NWLR (Pt. 314) 644 at 661, G-H;
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Ononuju v. State (2014) 8 NWLR (Pt. 1409) 345 at 387, FG; Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 at 117, G; Ezemba v. Ibeneme (2000) 10 NWLR (Pt. 674) 61 at 74, AC; Ahmed v. Nigerian Army (2011) 1 NWLR (Pt. 1227) 89, FG; Gabriel v. State (2010) 6 NWLR (Pt. 1190) 280 at 327, F-H; Iko v. State (2001) 14 NWLR (Pt. 732) 221 at 241, D-E; & Ahmed v. Nigerian Army (Supra) at 113, H.
Furthermore, Counsel submits that the learned trial Judge did not only fail to avert his mind to all the areas of doubt in the Prosecution?s case, but also shifted the burden of proving his innocence to the Appellant, even when the Prosecution had not established all the ingredients of the offences alleged against him. He submits that it is trite law that any doubt in the Prosecution’s case ought to be resolved in favour of the accused person, and relies on Orji v. The State (2008) 4 SCNJ 85; & Adekoya v. The State (2012) 3 SC (Pt. 111) 36.
?In response to the submissions of the Appellant on this issue, learned Counsel for the Respondent submits that the issue rests on the requirement that, in criminal proceedings, the burden of proof lies on the Prosecution which it
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must discharge beyond reasonable doubt. For this, he relies on Alo v. State (2015) All FWLR (Pt. 775) 262 at 289 para F-G. He submits that counts 1, 3, 5 and 6 out of the six counts of charge preferred against the Appellant wherein he was convicted and sentenced to a term of seven (7) years imprisonment without an option of fine, all hinged on the offence of obtaining property in Nigeria or in any other country or an inducement to that effect by way of false pretence and with intent to defraud the person delivering such property. He relies on Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006. He submits that from the foregoing, the elements needed for the Prosecution to secure a conviction on a charge based on that offence are:
I. There was false pretence on the part of the accused.
II. The false pretence operated in the mind of the victim who delivers a property to the accused or any other person.
III. The accused knew of his false pretence and intends by it, to defraud the victim.
He relies on Alake v. The State (1991) 7 NWLR (Pt. 205) 567 at 591.
Counsel submits that the Prosecution adduced evidence through
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nine witnesses and tendered Exhibits 1-17. Exhibits 1 and 2 are flyers meant to inform members of the public of the business carried out by the company at the material time and how their network marketing system works, for the benefit of those interested in registering with the Company. They do not in any way state or explain any investment programme referred to as ?long-term and short-term investment?, as was falsely represented by the Appellant in Exhibit 5. He contends that Exhibit 5 was a separate flyer designed by the Appellant for his programme where he misled his victims into believing that they could pay certain amounts of money as investment in Real Estate and Property Development. Instead, the intendment of Exhibits 1 and 2 (the Company?s flyers) was to show members of the public, particularly those that registered with the Company, easy ways to make money and develop their personal property through multi-level marketing. Counsel submits that despite the fact that Exhibit 17, the Company?s Memorandum & Articles of Association, contains an object clause for engagement in real estate, the Company was shown not to have tapped
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into that object. He argues that where the Company has not engaged itself in the Object Clause relating to investment in real estate, it is not within the power of the Appellant, an Outlet Manager, to unilaterally venture into such an investment. It was a decision meant to be taken only by the management of the Company.
Counsel further submits that the Appellant falsely represented and held himself out as the General Manager of G.I. Network International Limited at Gombe by reason of which his victims paid various amounts of money for a programme he designed and termed ?long term and short term investment?. For the purpose of this conception, he printed Exhibit 5 (his own flyer) and charged a registration fee of N3, 700.00 (Three Thousand Seven Hundred Naira) only as against the registration fee of N3, 500.00 (Three Thousand Five Hundred Naira) charged by the company. In furtherance of this programme designed by him, he represented to his victims to deposit certain amounts of money upon which they would be paid interest after six months. This was not a part of the company?s object.
?Counsel also submits that the Appellant further
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designed and printed Exhibit 6 being a ?Guarantee Investment Network International Members? Confidential Form?. By this Form, he collected lump sums of money for his designed ?long term and short term investment? programme outside the company?s business of buying and selling of household products. It is on record by Exhibit 7, a Guaranty Trust Bank deposit slip with the account titled ?Abatan Oluwaseun?, that PW4, Ibrahim Mohammed Arabi, paid in the sum of N600, 000.00 (Six Hundred Thousand Naira) for the interest yielding programme of the Appellant. Counsel submits that what the law requires to secure a conviction in this regard is to prove that the Appellant acted as he did in order to obtain property under false pretences. Counsel submits that the trial Court found all these germane in arriving at its decision. He therefore prays that that its findings should not be disturbed by this Court. He again relies onAlo v. State (supra) at 293 paras A-B.
?Furthermore, Counsel submits that the Appellant knew full well his design to enrich himself and that was why he proceeded to send the sum of N1, 000, 000.00 (One
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Million Naira) out of huge amount of money collected by him, to lure and win the favour of the management of the Company. He contends that the remittance made by the Appellant is a mischievous attempt made to hide under an existing company to defraud his victims even more.
Counsel submits that with the avalanche of evidence before the Lower Court, the trinity elements of the offence of obtaining by false pretences were proved by the Prosecution beyond reasonable doubt to sustain the conviction. If the Appellant admitted the facts of running a short term and long term investment programme, which was never contemplated by the company for which he purportedly worked, and he obtained money for that purpose, and no evidence was adduced by the Appellant at the trial to prove the existence of such investment, then it is false and anything obtained in connection with this design is fraudulent and punishable, as was rightly held by the trial Judge. Counsel therefore urged the Court to disregard the submissions of the Appellant in this regard.
?Findings:
The Charge against the Appellant in counts 1, 3, 5 and 6 which is obtaining money by false pretences,
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alleges (in paraphrase) that, with an intent to defraud, the Appellant obtained various sums of money from the persons named in the counts of Charge, under false pretences, to wit: that the Appellant is engaged in the business of real estate, and that the money obtained would be invested to enable the investor gain interest thereon and also to own a house. The evidence adduced by the Prosecution disclosed that the Appellant made the representation to the PW3, PW4, PW5 and PW6, among other persons, that the Company, Guaranty Investment Network International Limited (GI), was engaged in the business of short term and long term investments; that he held himself out as the ?General Manager? of Outlet 04331 Gombe of ?GI? Company authorised to engage in the business of investment and real estate; that for the short term investment, the investors would receive a return thereon after a period of six weeks. In addition, the Prosecution alleged that, induced by this representation, the PW3, PW4, PW5 and PW6, as well as other members registered on the program, paid various sums of money into the personal account of the Appellant as a short term
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investment. That since the Appellant was not authorised by the company to engage in any such investment or real estate business, he had consequently obtained the said monies under false pretences. Now, the question is: from the totality of the evidence adduced before the trial Court, can the Appellant be said to have inveigled and beguiled the PW3, PW4, PW5 and PW6 into parting with their monies under false pretences?
In the old English case of R. v. John James Sullivan 30 Cr. App. R. 132 at 134, which was quoted with approval by Obaseki, JSC in Ijuaka v. Commissioner of Police (1976) LPELR (1466) 1 at 11, Humphreys, J., dealing with what had to be proved in order to establish intent to defraud, which is an essential element necessary to secure conviction on a charge of obtaining by false pretences, stated as follows:
?In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to prove to the satisfaction of the jury (Court) that there was some mis-statement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted on the
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mind of the person who parted with the money; that the proceeding on the part of the accused was fraudulent. That is the only meaning to apply to the words, with intent to defraud.?
Thus, can it be said that the Prosecution proved by credible evidence that the Appellant induced the persons named in counts 1, 3, 5 and 6 of the Charge to part with their monies upon a representation which he knew was false, which is that, he was authorised to invest their monies in the short term and make returns on that investment within six weeks? Secondly, having received the monies from the investors, did he use the money for the purpose represented, i.e. investment in real estate, and ultimately deliver on the representation made to them by paying them the promised return of 21% on their investments?
The term ?false pretences? denotes the offence of knowingly obtaining someone?s property by misrepresenting a fact with the intent to defraud that person. In Black?s Law Dictionary, Tenth Edition it is also termed:
?The crime of knowingly obtaining title to another person’s property by misrepresenting a fact with the intent to
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defraud.?
The offence has also been fittingly defined in Section 20 of the Advance Fee Fraud and Fraud Related Offences Act, 2006, in this way:
?20. In this Act ?
?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;?
In the instant case, it is worth noting from the onset that, even though the Appellant was charged on eight counts for Advance Fee Fraud and Forgery, he was only found guilty on four counts of obtaining by false pretences, exonerated on the two other counts of obtaining by false pretences, while he was discharged on the two counts alleging forgery, upon the withdrawal of the latter counts of Charge by the prosecution. The complaints of the Appellant in this Appeal are therefore restricted to his conviction and sentence on the four counts of Charge, namely: counts 1, 3, 5 and 6. These counts are accordingly set out hereunder:
?COUNT ONE<br< p=””
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That you ABATAN OLUWASEUN sometimes 2008 in Gombe, in the Judicial Division of the High Court of Gombe State with intent to defraud, obtained the sum of N600,000 (Six Hundred Thousand Naira) from one ARABI IBRAHIM MOHAMMED under false pretence that GUARANTY INVESTMENT NETWORK INTERNATIONAL LIMITED which you are the Distributor and the Manager of Outlet 04331, Gombe State is engaged in the business of Real Estate and Property Development, Sales of Land and Houses and to invest the said sum N600, 000 (Six Hundred Thousand Naira) to enable him gain interest and own a house which he knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT THREE
That you ABATAN OLUWASEUN sometimes 2008 in Gombe, in the Judicial Division of the High Court of Gombe State with intent to defraud, obtained the sum of N100, 000 (One Hundred Thousand Naira) from one MRS. JOSEPHINE J. SAMUEL under false pretence that GUARANTY INVESTMENT NETWORK INTERNATIONAL LIMITED which you were the Distributor and the Manager of Outlet 04331,
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Gombe State is engaged in the business of Real Estate and Property Development, Sales of Land and Houses and to invest the said sum N100, 000 (One Hundred Thousand Naira) to enable her gain interest and own a house which you knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT FIVE
That you ABATAN OLUWASEUN sometimes 2008 in Gombe, in the Judicial Division of the High Court of Gombe State did with intent to defraud, obtained the sum of N250, 000 (Two Hundred and Fifty Thousand Naira) from one SANI YAKUBU GOMBE under false pretence that GUARANTY INVESTMENT NETWORK INTERNATIONAL LIMITED which you are the Distributor and the Manager of Outlet 04331, Gombe State is engaged in the business of Real Estate and Property Development, Sales of Land and Houses and to invest the said sum N250,000 (Two Hundred and Fifty Thousand Naira) to enable him gain interest and a house which you knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related
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Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT SIX
That you ABATAN OLUWASEUN sometime 2008 in Gombe, in the Judicial Division of the High Court of Gombe State did with intent to defraud, obtained the sum of N300, 000 (Three Hundred Thousand Naira) from one USMAN LUKA under false pretence that GUARANTY INVESTMENT NETWORK INTERNATIONAL LIMITED which you are the Distributor and the Manager of Outlet 04331, Gombe State is engaged in the business of Real Estate and Property Development, Sales of Land and Houses and to invest the said sum N300,000 (Three Hundred Thousand Naira) to enable him gain interest and house which you knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
Thus, from these counts of Charge wherein the Appellant was convicted for obtaining money by false pretences, the necessary elements to be established by the prosecution to sustain the Charge are as follows:
a) That there was a pretence;
b) That the pretence emanated from the accused person;
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c) That the pretence was false;
d) That the accused person knew of the falsity of the pretence, i.e. he did not believe its truth;
e) That there was an intention to defraud;
f) That the property or thing is capable of being stolen;
g) That the accused person induced the owner to transfer his whole interest in the property.
See Aguba v. FRN (2014) LPELR-23211(CA) 1 at 40-41; Odiawa v. FRN (2008) ALL FWLR (Pt. 439) 436; & Onwudiwe v. FRN (2006) ALL FWLR (Pt. 319) 774 at 812-813, per Niki Tobi, JSC. Therefore, question to be answered is, whether there was sufficient evidence adduced before the trial Court to justify the conviction of the Appellant as charged on these counts?
?From the evidence adduced before the Lower Court, the Parent Company – GI Network International Limited, engaged in the business of multi-level marketing, sale of house-hold products and real estate. The flyers of the company (Exhibits 1 and 2) advertised that upon registration as a member of the business with the sum of N3, 500.00, a registered member could earn up to N3, 950, 000.00 in savings, and upon reaching Stage 7 of the program, would be entitled to
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incentives in the form of a plot of land or the sum of $2000. As already set out earlier in the body of the Judgment, Exhibits 1 and 2, which contain a policy statement from the desk of the President of the Company states inter alia as follows:
?GI SPLASH ACTIVATION
AN EASY STRATEGY FOR MAKING N3,937,000 TO BUILD YOUR OWN HOUSE
YOU NOW HAVE A CHOICE TO BECOME RICH
From the desk of the president
Strategies for raising money for Property Development
The richest people in the world look for and build network (Robert T Kiyosaki)
Investment in real estate is no doubt the most lucrative business in Nigeria. As the president of Nigeria Institute of Real Estate Agents (NIREA), it is my passion to work with a team of Multi Level Marketing (MLM) experts in solving the problems of shelter in both the rural and urban areas even as the country’s population continues to rise tremendously. Distributing a million naira to every household may not solve this problem even if we or the government choose to. But through the simple concept of Multi Level Marketing (MLM), one can easily make enough savings to acquire non controversial but
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affordable homes. With our knowledge of MLM, we believe it is a pragmatic means of helping most Nigerians achieve their dreams of becoming home owners through MLM method of savings. Our products, therefore, as real estate agents are selling of land, houses and home care products to Nigerians through MLM system.
…
DR. OLATUNJI MOBOLORUNDURO
President G.I. Network Int’l?
The Appellant himself registered in the program sometime in 2008 and was subsequently trained as an Outlet Manager. Thereafter, he elected to carry out the business under the Parent-Company in Gombe, whereupon he set up his office. Initially, the Appellant marketed for members in line with the specifications of the business outlined in Exhibits 1 and 2 (pages 2 thereof). Subsequently however, under the umbrella of ?marketing strategies? and the real estate business (advocated in the flyers and the Memorandum & Articles of Association – Exhibits 1, 2 & 17), he ingeniously used the leeway provided therein to expand the scope of the business. Therefore, on his own initiative he designed an investment program. He categorised the initial business of the
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Company as laid out in Exhibits 1 and 2 as ?long term investment?; while he described his own creation as ?short term investment?. Accordingly, from his own evidence as DW4, he designed and printed receipts and forms to facilitate this latter-day investment business (Exhibits 3, 4, 5 and 6). Exhibit 3 is a complimentary card printed by the Appellant wherein he described himself as a ?General Manager? of the company (instead of ?Outlet Manager?) which he distributed to registered members. When questioned about this misrepresentation of himself under cross examination (as DW4), he attributed it to a printer?s mistake, which he, of course, conveniently never bothered to correct. Exhibits 4 and 8 are copies of a Registration receipt which he issued to PW5, Ibrahim Mohammed Arabi, on payment of the sum of N3, 700.00 being the registration fee, and a receipt for the sum of N600, 000.00 indicated therein as paid by the witness for the ?Short term Investment, Pay off Date 15-Oct-2008 Amount to be paid N866,400?. Exhibit 5 is a customised flyer admittedly designed and printed by the Appellant wherein he
31
marketed his innovative investment business. Since it is a crucial piece of evidence heavily relied upon by the Prosecution in proof of the Charge, relevant portions are set out hereunder:
?Start a BUSINESS with N3, 700 and earn N3, 937, 000 without Sweating, Buying, Selling, Renewal. Just two referrals. Being a member, qualifies you as a Long-Term and Short-Term Investment Member.
Guaranteed Investment Network International Limited RC 654620 Gombe Branch? (Emphasis supplied)
Exhibit 6 is document, another innovation of the Appellant, printed on the letter-head of Guaranteed Investment Network International titled ?Members Confidential Guide?. It contains five columns which provide information on:
(i) Amount invested by certified GI member Only N;
(ii) Members Pay off (Capital x 1.6) N
(iii) Non-Member Pay off through Registered Members N;
(iv) 21% Mortgage Savings on Profit;
(v) 5% V.A.T. N; and
(vi) Final Pay off N.
Under the column ?Amount invested by certified GI Member?, the amounts entered range from N500.00 (Five Hundred Naira) to N1, 000, 000.00 (One Million Naira).
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For the lowest investment of N500.00 (Five Hundred Naira), a certified GI member would be entitled to a final pay off after six weeks of N722.00 (Seven Hundred and Twenty Two Naira), while for the highest investment of N1, 000, 000.00 (One Million Naira), the final pay off after six weeks would be N1, 444, 000.00 (One Million Four Hundred and Forty Four Thousand Naira). As an added note, it is stated in the document as follows:
Note
”It is our satisfied (sic) members only that are allowed to participate in this short term.?
In addition, PW1, Eboli Tobi, the Operation Director of the Company, testified in summary as follows: that the Appellant was the Company’s Independent Outlet Manager in Gombe. The company is involved in buying and selling household products such as bathing soaps, creams, toilet wash and facial masks. It does this through multi-level or network marketing. By this system, a person registers with the company by paying the sum of N3, 500.00; he gets a starter pack which includes an ID card, registration forms, the company flyers and the house-hold products which he markets. He buys the products at a registered
33
distributers’ price; and he earns a commission at the end of the month on the products purchased. The member also gets other persons to register through him, for which he gets a bonus. This member is in what they term `stage one’. Based on performance, a member could move up to ‘stage seven’ at which stage, he would be entitled to a plot of land or $2000 as incentive. An outlet manager must be a registered member and must also apply for an outlet. He is to manage those members that cannot come directly to the company; he takes their registration fees and gets their products and bonuses from the company. He is expected to train these members. The accused started in August, 2008. After discussions on the need for increased registration, the accused promised to approach members that registered through him (his ‘down liners’) in Gombe to raise money through registration of new members and increased sales of products. Three days after their discussion, the accused called and told them that he had paid N1, 000, 000.00 (One Million Naira) into the account of the company at G.T. Bank, and also that he had sent the names of new members through the ‘Young Shall Grow’
34
transport for them to be registered using the money he had deposited. When he asked the accused how he was able to raise the money at such short notice, and he told him (witness) of a program he had designed under which he generated the money. When PW1 told the President of the Company (PW2) about this, PW2 instructed him to invite the accused to come over to Lagos to explain how he was able to raise such a large sum of money within a short period. The accused dilly dallied in coming, and so they asked him to send them the program which he had designed. When he sent it, they were shocked to discover that it was a different program from the Company’s marketing plan. By the program of the accused, a member deposits money and gets a certain amount at the end of six weeks. When finally the accused came over to Lagos on the invitation of the President, the President (PW2) pointed out that the program he designed was different from what the Company was doing and directed him to go and remove the name of the company from the program otherwise he would lodge a report with the Police. When later on, registered members from Gombe called to inquire about the short term
35
and long term programs, they told them that the Company did not know anything about it. Under cross examination, the PW1 stated that while the Outlets are independent, the Outlet manager is allowed to use his initiative to promote the Company, but only in conformity with the Company’s program. He reiterated that the Company had no short term and long term investment program. It only has a GI Marketing program, as detailed in Exhibit 1.
PW2, Mobolorunduro Olatunji, the President of Guaranty Investment Network International Ltd, incorporated under the Corporate Affairs Commission, testified in line with the evidence of the PW1. Under cross examination, he stressed that the Outlets operate independently and are free to so operate as long as it is within the confines of the Memorandum of the Company, and estate business is one of the objects of the company.
?From the evidence of PW1 and PW2 as summarised above, it is evident that the Company was not aware of this new invention/innovation of the Appellant in the form of the investment program as detailed in Exhibits 5 and 6. Even when it subsequently came to their knowledge, they were evidently not in
36
agreement with it. Indeed, the Appellant confirmed this in his evidence when he stated that it was his sole initiative in pursuance of his aggressive marketing strategies to rake in money for the fledgling company, which was floundering in financial difficulties at the time as it had recently been defrauded of the sum of N21 million. However, by not informing the Parent-Company of his new invention and also clandestinely operating same, point to an ominous intent on the part of the Appellant.
?Nonetheless, it must be acknowledged that when the Appellant paid the sum of N1 million into the account of the Company only three days after he (as well as other Outlet Managers) were instructed to embark on aggressive registration and marketing to uplift the finances of the Company, PW1 and PW2 did no more than raise their eyebrows. In spite of their testimonies indicating their alarm at the ability of Appellant to deposit such a large amount of money into the Company account against the names of only a few newly registered members and within only three days after he was so-instructed to embark on aggressive marketing, the directors of the Company took no
37
pro-active action, such as inviting the relevant authorities to investigate the Appellant in order to exculpate the company from responsibility, until the Appellant was arrested by the EFCC. Since however, the PW1 and PW2 are not on trial, no more will be said on their culpability or otherwise in quietly and conveniently accepting the proceeds from this unauthorised ?investment program?.
What is however more important from the above pieces of evidence is that, it is apparent that the Appellant acted outside the scope of his mandate by the Parent-Company as contained in its operational policy set out in Exhibits 1 and 2, as well as the objects of the Company as set down in Exhibit 17, (the Memorandum & Articles of Association), by purporting to operate an ?investment? business, whether long-term or short-term, with a view to obtaining money under false pretences from the so-called investors.
?PW3, Josephine Joshua Samuel, testified that, after registering as a member in the Multi-Level Marketing (MLM) program and receiving bonuses a couple of times, she attended one of the meetings organised by the Appellant where the short
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term investment was explained to them and she was told that she qualified for it since she was already a registered member. The Appellant gave her a form and explained to her that after six weeks of depositing a sum of money into his account, she was to come back for the principal sum deposited and ?some gain?. She therefore proceeded to deposit the sum of N100, 000.00 (One Hundred Thousand Naira) into the Appellant’s account. He gave her a form where it was indicated that after six weeks she should return to collect her principal sum of N100, 000.00 (One Hundred Thousand Naira) and interest thereon of N44, 000.00 (Forty Four Thousand Naira), making it a total of N144, 000.00 (One Hundred and Forty Four Thousand Naira). However, when she called him up after six weeks, he was with the EFCC.
PW4, Usman Luka, also had a similar story to tell. At the Appellant’s office, his secretary informed him that the Company had a short term investment and a long term investment and asked him to chose. Even though he chose the short term program, she told him that he would also have to register for the long term program in order to qualify. She explained that
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he would get payment at six week intervals, and the profit would be split into three: one part for the company, one part for him as dividend and the third part as savings to be used to acquire landed property for him. He later met with the Appellant who confirmed the information received from his secretary. While not totally convinced of the program, he was ?captivated? by the interest on the investment he was promised, and so he went ahead and paid the sum of N300, 000.00 (Three Hundred Thousand Naira) into the Appellant’s account on 01-09-2008. When he later called up the Appellant for his dividend which was due on the 31-10-2008, the Appellant told him he was with the EFCC. He was subsequently refunded his money by the EFCC.
PW5, Ibrahim Mohammed Arabi’s story was identical in every material particular with that of the PW3 and PW4; except that he deposited the sum of N600,000.00 (Six Hundred Thousand Naira) as his investment into the short term program. The Appellant convinced him to invest and promised him that he would get back his money back plus interest of 21% after six weeks. He even gave him a form, Exhibit 6, where he could see the
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investment and the interest thereon. The Appellant’s complimentary card wherein he described himself as a ?General Manager?, PW5’s registration receipt, the flyer designed and printed by the Appellant, the ?Members’ Confidential Guide? detailing amounts invested and the interest to be received thereon, the Bank deposit slip (teller) for the sum of N600, 000.00 paid, and the receipt issued by the Appellant after paying the deposit, were all admitted in evidence as Exhibits 3, 4, 5, 6, 7 and 8. When he called up the Appellant after six weeks period, he was with the EFCC. He has still not been able to recover his money.
PW6, Sani Yakubu Gambo’s story is also the same as that of the other prosecution witnesses, except that after being sold the short term program by the Appellant, he deposited the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) into the Appellant’s account as part of the program. In addition however, he testified as to how the Appellant informed him that, in the short term program, the Company would purchase dilapidated houses in Lagos at cheap rates which it would demolish, rebuild and sell within the six
41
week period, and the profit derived there from would be shared among the investors. The Appellant then took him to a piece of land near Akko village outside Gombe town and told him that his company had started arrangements to establish a GI Garden so that investors in the Company would be given plots of land there. He confirmed that sometime after paying the sum of N250, 000.00 (Two Hundred and Fifty Thousand Naira) into the Appellant’s account, the Director of Operations of GI Investments called to tell him that the Company knows nothing about the short term investment, and that they are only into household products. He later received a part-refund of his money through the EFCC.
PW7 and PW8, officers with the EFCC, gave graphic accounts of the investigation they conducted into the allegation of obtaining by false pretences from the witnesses and other persons.
In his defence, the Appellant called three witnesses while he testified in his defence. DW1 and DW2 were also participants in the Appellant’s short term investment program and their evidence is essentially in tandem with that of the PW3, PW4, PW5 and PW6. DW1, Mary Musa Mazadu, invested the
42
sum of N50, 000.00 (Fifty Thousand Naira) and was told that she would receive N22, 000.00 (Twenty Two Thousand Naira) in addition, as interest thereon after a period of six weeks. She has not recovered her money to date; while DW2, Sambo Lamba Maisamari, also joined the short term investment program and invested the sum of N120, 000.00 (One Hundred and Twenty Thousand Naira). One week before he was due for payment, he was informed that the Company had problems with the EFCC and the staff had all been arrested. Some registered members, including himself, decided to be proactive and went to Lagos with the Appellant and the Police to arrest the Operations Director (PW1) and the Accountant of the Company because they did not want to lose their money. Later on, the President of the company (PW2) also came down to Gombe and refunded the money deposited into the Company account by the Appellant. He has however not been paid his investment. DW3, Anna B. Lamarana, formerly a civil servant with the Ministry of Education, essentially testified on the allegation of forgery, which is no longer an issue in this Appeal.
Finally, the Appellant testified as DW4. He
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stated that he produced Exhibit 5 at his Outlet because he was given the power to print flyers for marketing sake. He also drafted Exhibit 6 as an amplified form of Exhibits 1 and 2 for better information to members of the Outlet. He started operating the Gombe Outlet on 02-02-08 and it was sealed by the EFCC in August, 2009. He alleged that he registered nearly 400 members, multiple registration inclusive, even though no evidence of this was produced aside from Exhibits 14 series wherein only 39 members were registered. He denied defrauding PW3, PW4, PW5, PW6, DW1 and DW2; and that there was no false pretence on his part. He also stated that the deposits were not ripe for the investors to benefit from their investments when the EFCC came into the matter. The money used by the EFCC to repay some members came from the Company. He stated that by the Company’s marketing flyers, website and Memorandum and Articles of Association, it was engaged in real estate business. On several occasions he transferred some money from his account to the account of the company and he had receipts to show for them (Exhibits 30 and 31). He admitted designing Exhibits 3, 5 and 6. He
44
further explained that his nomenclature ?General Manager? on Exhibit 3 was a printer?s error, while Exhibit 6 was designed from the Company’s leaflet. He further explains that the six weeks mentioned in Exhibit 6 refers to both the short term and long term periods. He explained that he sent the sum of N1, 000, 000.00 (One Million Naira) to the Company account because the Company was experiencing problems. He stated that the Company knew about the decisions he took in Exhibits 3 to 6, and that many of the things written therein were extracted from the documents of the Company itself. He contended that the contents of the said Exhibits were part of the ?powers? given to him and others as Outlet Managers. The Company deals both in household products and real estate. He admitted under cross examination that he does not know whether it was one of the objects of the company to accept deposits. He also admitted creating the short term and long term investment programs in Gombe. He states that a person registering with N600,000.00 (Six Hundred Thousand Naira) must have the names of those persons registered under him. He admitted not
45
sending the names of those registered under that person (referred to as down-liners) because he had not fully completed the registration when the EFCC came in. He denied telling PW5 that if he invested N600,000.00 (Six Hundred Thousand Naira), he would gain interest after a period of time. He finally denied all the counts of Charge.
From the totality of the evidence and arguments of learned Counsel for the Appellant, I am of the view that the following three questions arise:
a) Whether counts 1 to 6 of the Charge cover the issue of: intent to obtain money under false pretences for the purpose of investment to enable the victims gain interest on the sums invested, which promise the Appellant knew to be false?
b) Whether the Appellant therefore obtained such monies from the victims under false pretences?
c) Whether the Appellant obtained such monies with intent to defraud?
?In answer to the first question, a perusal of the counts of charge (which have earlier been set out), discloses that all the ingredients of the offence of obtaining money under false pretences with the intent to defraud under Section 1(1) (a) of the Advance Fee Fraud
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& Other Related Offences Act, 2006, were duly captured. It is therefore not true to say that the charge only related to the issue of real estate. For ease of reference, count one of the charge, (which ingredients are replicated in counts 3, 5 and 6), is again reproduced hereunder:
?That you ABATAN OLUWASEUN sometimes 2008 in Gombe, in the Judicial Division of the High Court of Gombe State with intent to defraud, obtained the sum of N600, 000 (Six Hundred Thousand Naira) from one ARABI IBRAHIM MOHAMMED under the false pretence that GUARANTY INVESTMENT NETWORK INTERNATIONAL LIMITED which you are the distributor and the manager of Outlet 04331, Gombe State is engaged in the business of Real Estate and Property Development, sales of land and houses and to invest the said sum of N600,000 (Six Hundred Thousand Naira) to enable him gain interest and own a house which you knew to be false and thereby committed an offence contrary to Section 1(1) (a) of the Advance Fee Fraud and other Fraud Related Offences Act 2006 and punishable under Section 1(3) of the same Act.? (Emphasis supplied)
?Plainly, it is obvious from the contents of this count
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of Charge that what the Prosecution alleged therein is that the Appellant, intending to defraud Arabi Ibrahim Mohammed, obtained the sum of N600,000.00 from him under the auspices of GI International Network Ltd, ?under the false pretence … to invest the said sum … to enable him gain interest and own a house which you knew to be false…? It will serve no useful purpose inquiring into the first part of the charge which concerns the business of real estate and property development, since the Lower Court quite rightly found that, contrary to the assertions of the PW1 and PW2, was shown by evidence vide Exhibits 1, 2 and 17, that the Company had truly and lawfully held itself out to be engaged in the business of real estate, as well as multi-marketing and sale of household products. There is no cross-appeal against this finding of the Lower Court by the Respondent, and so it remains established as pronounced. Thus, the only area in contention is, whether the Appellant, with intent to defraud, obtained money by false pretences in purporting to develop an ?investment plan? and inviting members of the public, including Arabi Ibrahim
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Mohammed, (PW5) to invest therein in order to gain interest, which he knew to be false. Therefore, the Appellant was properly put on notice of all the ingredients of the offence charged, and the issue of investment, whether long term or short term, was not a latter-day innovation or creation of the Prosecution, as canvassed by Counsel to the Appellant.
?Concerning the second question, throughout the totality of the evidence before the Court, no evidence was adduced as to how or when or even if any money collected from these victims, was ever invested in any venture to enable/warrant a return of profits which would subsequently be shared to the investors, as held out by the Appellant. PW6 testified that the Appellant informed him that he would invest the money and/or acquire dilapidated houses in Lagos, demolish, rebuild and sell same; where after, he would pay the investors 21% interest on the sums invested from the profit realised. However, it is surprising that, even in his defence, the Appellant made no effort to adduce evidence of any steps he took in furtherance and/or fulfilment of his investment plans to meet the obligation of sharing profits to the
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investors. Instead, at the time of his arrest, it is the same monies paid into his personal account by the victims, including the sum of N1, 000.000.00 (One Million Naira) he paid into the Company account, that were recovered by the EFCC in order to refund to the investors their monies, without any of the promised accrued interest. Therefore, by a holistic reading of Exhibits 5, 6 and 17, in conjunction with the evidence of the ?tales by moonlight? made up by the Appellant in respect of a bogus investment plan and told to the investors, which they faithfully recounted in Court (which was not controverted by the Appellant), the Respondent proved that the monies were indeed obtained under false pretences.
?Finally, with regard to the third question as to the intent to defraud the victims, it would appear that the EFCC on its own part, also acted precipitately, which however turned out to be in the best interest of the investors. Upon receipt of intelligence reports, the EFCC pounced on the Appellant and arrested him before the maturity of the so-called ?investments?. PW3 to PW6 variously testified either that their investments were
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yet to mature or that they matured while the Appellant was in the custody of the EFCC, and so the Appellant had no opportunity to meet his obligations. This is the argument/defence put forward by the Appellant against the Charge. However, it is also clear from the Charge that the offence alleged and upon which the Appellant was convicted, was not that ?the Appellant defrauded the investors? as named in the four counts of charge, but that he collected the various sums of money from each of them ?with intent to defraud them?. There is a world of difference.
?So, what is the evidence of intent to defraud offered by the Respondent? It invariably consists of the evidence adduced by the Prosecution that the Appellant acted under false pretences, i.e. that he set up an investment business under the auspices of the Parent-Company, falsely holding out that he had the authority and mandate to do so, in order to obtain money from victims for a non-existent investment program, with the knowledge that he was not into any investment business and had not, upon receipt of such large sums of money, actually invested it in any business venture with
51
a view to paying the investors a return on their investments plus their principal sums, as held out by him.
With all these pieces of evidence on the printed Record, I am not persuaded to disturb the findings of fact of the Lower Court since same have not been shown to be perverse. I therefore resolve issue one in favour of the Respondent.
Issue Two:
Whether it was not wrong of the learned trial Judge to have convicted the Appellant and confiscated some of his properties on the allegation of representation to pay interest after six weeks of investment, which representation relates to a future event or occurrence and discloses no criminal offence?
Learned Counsel for the Appellant relied on Section 20 Advance Fee Fraud and other Fraud Related Offences Act, 2006 to submit that it is an undisputable fact that the Appellant as an Outlet Manager of Guarantee Investment International Limited collected various sums of money from the persons whose names appear in counts 1, 3, 5 and 6 of the charge with a promise to pay each of them interest after six weeks of their investment. The six weeks promised by Appellant had not lapsed before the Appellant
52
was arrested by EFCC. The Appellant?s office in Gombe which serves as the meeting point for Appellant and the investors was consequently sealed up by the EFCC, thus foreclosing any avenue for the Appellant to meet with the investors. The Appellant?s account at Guarantee Trust Bank into which investors had paid money in line with the Company?s flier (Exhibit 2), was also frozen by EFCC, thereby depriving the Appellant of any access to the funds in his account.
?Counsel submits further that from the pieces of evidence of both the prosecution witnesses and defence witnesses the representation, the payment of interest after six weeks of investment is a futuristic event which does not amount to false pretence under the law and same discloses no criminal offence. He contends that both the witnesses for the Prosecution as well as those of the defence testified in the same vein on the issue of the payment of interest and the involvement of EFCC before the due date. Counsel submits that the Appellant himself told the Lower Court that the time for payment of interest on the investment was not ripe before he was arrested by the EFCC. He relies on
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Achonra v. IGP (1958) SCNLR 367 at 368, F; Anu v. IGP (1958) SCNLR 367 AT 368, f; & State v. Osler(1991) 6 NWLR (Pt. 199) 576 at 586, H.
He submits that from the provisions of Section 20 of the Advance Fee Fraud and other Fraud Related Offences Act, which is in pari materia with the provision of Section 419 Criminal Code considered in the above-cited cases, the provision of Section 20 does not cover representation made concerning a future event.
?Counsel submits that from the evidence of PW5, it is clear that it was the EFCC that instigated the investors into thinking that the short term investment was not realistic. He referred to page 91 lines 4-5 of the Record. He contends that the learned trial Judge while reviewing the evidence of PW6, not only omitted this important part of the evidence, but also did not give it any consideration in his Judgment. Counsel further submits that neither the PW7 nor the PW8 who investigated the matter from the EFCC office gave evidence concerning the purported investigation which gave them the conviction that the short term investment was not realistic to warrant telling or misinforming the investors.
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In response, learned Counsel for the Respondent submits that the grouse of the Appellant is that, the Appellant acted within the scope of the authority as an Outlet Manager of G. I. Network International Limited, and thereby ought not to have been convicted on the counts of charge for which he was convicted. The Appellant further went to shop for a suspect he believes is the appropriate person to be proceeded against. That is the Company itself and the Directors or owners whom, he claimed to be the beneficiaries of his fraud. He submits that as stated under issue one and the testimony of the Appellant at the Lower Court, the same person who purported to act on behalf of G.I. Network International Limited is the same person who designed and ran an object outside the contemplation of the company?s business. He referred to pages 150 and 151.
?Counsel submits that the Appellant also designed a complimentary card bearing his name as the ?General Manager? of the Company, a position which he created without the Company?s knowledge and which was designed to perpetuate his criminal acts. He submits that the Appellant acted exclusively for
55
himself and never for the Company; that he held himself out to his victims as the Company?s representative. Assuming but not conceding that the Company or its Directors or owners are proceeded against and even found criminally liable on the same charge, it does not take away the liability of the Appellant considering the exclusive role he played outside the interest of the Company in obtaining the properties (money) of his victims by false pretences and with intent to defraud them. He relies on Ikpekhia v. FRN (2015) All FWLR (Pt. 771) 1597 at 1623, para C-D.
?Counsel submits further that in the course of the investigation, it is the accused that was suspected, tried and convicted. Unfortunately also, it is nowhere on record that the Company, G.I. Network International Limited, or any member of its management is presently on trial in any Court for the offence of obtaining money by false pretence or even on any other offence associated with the act of the Appellant. He submits that smearing the Company, G.I. Network International Limited or any of its management with the mud of criminality or illegality on Appeal is unsustainable as this was never
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canvassed at the trial Court.
Further, Counsel submits that the trial Judge was right in ordering the forfeiture of the properties to the Federal Government of Nigeria. He relies on Section 17(1) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006. He argues that the Order forfeiting the properties of the Appellant to Federal Government of Nigeria was sought for by the Prosecution Counsel. He submits that Subsection (2) of Section 17 prescribes that a notice or publication as the High Court may direct will apply only when such property is not claimed for or that its owner cannot be found. Counsel submits that in the instant case, the properties were bought by the Appellant for his design. This is evidence elicited from the Appellant?s own testimony; and the fact that they were taken from him during the course of the seminar conducted by him. He never showed any receipt evidencing the fact that the properties belong to someone else. Counsel therefore urged the Court to resolve the issue in favour of the Respondent, uphold the Judgment of the trial Court and dismiss the Appeal for lacking in merit.
Findings:
Under this issue,
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the first part of which seeks an answer to the issue already addressed under issue one, I adopt my findings thereunder. The evidence adduced by Prosecution through the PW1 to PW8 in conjunction with the evidence of the defence through the DW1 to DW3, together go to establish the allegation contained in the Charge that the Appellant embarked on an investment program outside the scope of his assignment as an Outlet Manager with the GI International Network Ltd, obtained money from the persons named in the four counts of charge, as well as from other persons named in Exhibits 14A-14C, under the pretence that he would invest their money in developing property, selling same and then paying them 21% interest thereon from the profit on the investment after six weeks, in addition to returning the principal sums of money invested with him.
?For the avoidance of doubt, the culpability of the Appellant does not simply lie in the fact that he acted outside the scope of his assignment as an Outlet Manager; it derives from the fact that he clandestinely and covertly created a new investment program in the name of the Parent Company without their knowledge and
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clearance; and more importantly, with the intention of obtaining money by false pretences, he collected huge sums of money from prospective investors without investing same in the much-touted development of property in Lagos, and with no apparent means of paying any returns on the investment, thereby disclosing an intent to defraud the investors in his bogus and sham business. The evidence on this was conclusive, and therefore the findings of the trial Court thereon cannot be impugned.
With regard to the order of forfeiture made by the Lower Court of the properties confiscated from the office of the Appellant by the EFCC, it clearly does not fall within the category of ?unclaimed property? provided for in Section 17 of the Advance Fee Fraud & Other fraud Related Offences which would have warranted such an order to be made only upon the filing of an ex parte application, as well as a subsequent motion on notice. For the avoidance of doubt, the provision states:
?17
Power to make order of forfeiture without conviction for offence.
1. Where any property has come into the possession of any officer of the Commission as
59
unclaimed property or any unclaimed property is found by any officer of the Commission to be in the possession of any other person, body corporate or financial institution or any property in the possession of any person, body corporate or financial institution is reasonably suspected to be proceeds of some unlawful activity under this Act, the Money Laundering Act of 2004, the Economic and Financial Crimes commission Act of 2004, or any other law enforceable under the Economic and Financial Crimes Commission Act of 2004, the High Court shall upon application made by the Commission, its officers, or any other person authorized by it and upon being reasonably satisfied that such property is an unclaimed property or proceeds of unlawful activity under the Acts stated in this Subsection make an order that the property or proceeds from the sale of such property be forfeited to the Federal Government of Nigeria.
2. Notwithstanding the provision of Subsection (1) of this Section the High Court shall not make an order of forfeiture of the property or the proceeds from the sale of such property to the Federal Government of Nigeria until such notice or publication
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as the High Court may direct has been given or made for any person, corporate or financial institution in whose possession the property is found or who may have interest in the property or claim ownership of the property to show cause why the property should not be forfeited to the Federal Government of Nigeria.
3. Application under Subsection (1)above shall first be made by a motion ex parte for interim forfeiture ?
4. At the expiration of 14 days ?, an application shall be made by a motion on notice for the final forfeiture of the property concerned to the Federal Government of Nigeria.
5. ?
6. An order forfeiture under this Section shall not be based on a conviction for an offence under this Act or any other law. (Emphasis supplied)
?Instead, it is apparent that the Lower Court exercised its inherent powers to make the order of forfeiture of the property recovered from the convict, which property was shown to have been used in perpetrating the crime, upon the conviction of the Appellant. The property recovered from the Appellant can in no way be described as ?unclaimed property? to bring it in line
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with the above provision of law. Instead, by the Appellant?s own admission in his evidence as DW4, he bought the property and used it in the illegal operations for which he had been convicted. Without much ado, I therefore resolve this issue also in favour of the Respondent.
Having resolved both issues against the Appellant, I find the Appeal devoid of merit. It is accordingly dismissed. I accordingly affirm the Judgment of the High Court of Justice, Gombe State delivered on 10th August, 2008, in Charge number CH/4c/09, between: The Federal Republic of Nigeria v. Abatan Oluwaseun, as well as the conviction and sentence.
Other Citations: (2016)LCN/8630(CA)
