Shadrack Uzoka V. Federal Republic of Nigeria (2009)
LawGlobal-Hub Lead Judgment Report
ADZIRA GANA MSIIELIA. J.C.A.
The appellant Shadrack Uzoka was arraigned before the High Court of Lagos State sitting in Lagos and charged with the following offences:-
STATEMENT OF OFFENCE – 1ST COUNT
Obtaining property by false pretence contrary to Section 1(1) (A) of the Advance Fee Fraud and other Fraud Related Offences Decree No 13 of 1995 as amended punishable under Section 1(3) of the same Decree.
PARTICULARS OF OFFENCE
Shadrack Uzoka (M) sometime in the month of December, 2001 at Apapa in Lagos State of Nigeria did obtain one Honda Civic car and two Mitsubishi L300 Buses from one Oyenkachi Budu which said vehicles are valued at the sum of N1,608,400.00 (One Million, Six hundred and eight thousand four hundred naira) by false pretence and with intent to defraud to wit: you represented to the said Oyenkachi Budu that you have not disposed of the vehicles when you had actually disposed of the vehicles for the sum of N1,608,400.00 (One million, Six hundred and eight thousand four hundred naira) and was trading with the said proceeds.
STATEMENT OF OFFENCE 2ND COUNT
Obtaining money by false pretence contrary to Section 1(1) (A) of the Advance Fee Fraud and other Fraud Related Offences Decree No 13 of 1995 as amended punishable under Section 1(3) of the same Decree.
PARTICULARS OF OFFENCE
Shadrack Uzoka (M) on, or about the 13th day of February, 2002 at No 4, Otuniyo Street, Ajegunle, Lagos, in Lagos State of Nigeria, did obtain the sum of N 768,000.00 (Seven hundred and sixty eight thousand naira) from one Onyekachi Budu, by false pretence and with intent to defraud to wit; you represented to the said Oyenkachi Budu that you were going to trade with the money and pay back by March, 2002 and when requested for payment, you denied ever receiving such money from the said Oyenkachi Budu.
STATEMENT OF OFFENCE – 3RD COUNT
Stealing contrary to Section 390(9) of the Criminal Code Act, Cap 17 laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
Shad rack Uzoka (M), between the months of January and May, 2002 in Lagos State of Nigeria did steal the sum of N1,608,400.00 (One million six hundred and eight thousand four hundred naira) being the proceeds realized on one Honda Civic car, and two Mitsubishi L300 Buses belonging to one Oyenkachi Budu by converting same to your use.
STATEMENT OF OFFENCE – 4TH COUNT
Stealing contrary to Section 390(9) of the Criminal Code Act, Cap 77 Laws of the Federation of Nigeria 1990.
PARTICULARS OF OFFENCE
Shadrack Uzoka (M), on or about the 13’hday of February, 2002 at No 4, Otuniyo Street, Ajegunle, Lagos in Lagos State of Nigeria, did obtain the sum ofN768,000.00 (Seven hundred and sixty eight thousand naira) belonging to Oyekachi Budu.
STATEMENT OF OFFENCE – 5TH COUNT
Forgery contrary to Section 467(2) (J) of the Criminal Code Act, Cap 77 Laws of the Federation of Nigeria 1990.
PARTUCULARS OF OFFENCE
Shadrack Uzoka (M) between the months of February and May, 2002 at Apapa, Lagos in Lagos State of Nigeria, forged bills of lading, motor vehicle duly Certificates and other clearing documents purporting them to have been issued by the Nigeria Custom service at Tincan Port at Apapa when infact they were not so issued.
The accused was arraigned before the’ lower court on the 11th day of December, 2002. The accused pleaded not guilty to the five counts. The prosecution called six witnesses while the defence also called six witnesses.
At the close of the case for both the prosecution and the accused, the court found the Appellant guilty on count, 2, count 3 and count 5 of the charges.
The lower court then sentenced the appellant to ten (10) years imprisonment without an option of fine on count 2, seven (7) years imprisonment on count 3 but to run concurrently, and three (3) years imprisonment on count 5 also to run concurrently. Appellant was also ordered to pay the sum of Two million, four hundred and seventy six thousand, four hundred naira (N2,476,400.00) back to the victim PW1.
Appellant was dissatisfied with the decision of Coker J. delivered on 15/12/05 so he lodged an appeal to this court. The Notice of appeal was dated 7th February, 2000 and contained one ground of appeal. The notice of appeal was amended pursuant to order of court made on 16/1108 and same deemed properly filed on 16/1108. The clear copy was filed on 20/3/07 containing seven grounds.
In accordance with the practice of this court Appellant filed his brief of argument on 28/2/08 while respondent’s counsel on the other hand obtained leave of court on 20/11/08 and filed respondent’s brief on 27/11/08.
On 20/11/08 respondent filed additional record.
When the appeal came up for hearing both counsel adopted their respective briefs of argument.
From the seven grounds of appeal appellant distilled three issues for determination as follows:-
1. Whether the learned trial Judge was right in fact and in Law to have held that the appellant person collected the sum of N768,OOO.00 (Seven Hundred and Sixty-Eight Thousand Naira) from PW1 and even if he did (which is not conceded) whether it was false pretence (Grounds 1 and 2).
2. Whether from the totality of the evidence on record, the defence of Bona Fide Claim of Right does not avail the appellant on the 3rd count in the charge against him and for which he was convicted (Ground 3).
3. Whether the learned trial Judge was right in fact and in Law to have held that the appellant forged the documents of the cars that he gave to PW4 to sell only on the basis of Exhibit F (Ground 4, 5 and 6). Respondent on the other hand distilled three issues for determination as follows:-
1. Whether the learned trial Judie was right in arriving at the decision she did as regards count 2 of the charge in holding that the appellant fraudulently obtained the, sum of seven hundred and sixty eight thousand naira (N768,000.00) from PWI the victim in this case.
Whether from the totality of the evidence on record, the defence of bona fide claim did avail the Appellant as regards the 3rd count of stealing preferred against him.
Whether the learned trial Judge was not right in holding that Appellant forged the documents of the cars that he gave to PW4 to sell on his behalf on the strength of Exhibits E and F.
After a close perusal and reflection on the issues framed by both counsel in their respective briefs of argument, I am of the humble view that the three issues formulated by the appellate are adequate and germane for the determination of the appeal.
Before I proceed to consider the issues raised in this appeal, I wish to note that, appellant appears to have abandoned ground 7 which is the omnibus ground. Appellant’s counsel Mr. Festus Keyamo did not refer to ground7 in any of the three issues formulated by him. In the course of hearing the appeal appellant’s counsel did not indicate he was abandoning ground 7. Be that as it may I will consider ground 7 as deemed abandoned and should be struck out. The position of the law is that a ground of appeal which no issue has been distilled and upon which no argument have been canvassed is deemed abandoned by an appellant and so should be struck out.
See Iyoho v Effiong (2007) 11 NWLR (Pt 1044) 32 at 49; Aro v. Aro (2000) 3 NWLR (Pt 649) 443; J.E. Elukpo & Sons Ltd v. F.H.A. (1991) 3 NWLR (Pt 179) 322 and Ikpuku v. Ikpuku (1991) 5 NWLR (Pt 193) 57.
I have also observed that ground 7 was not properly couched. In civil appeal a general or ‘omnibus’ ground of appeal that the lower court’s judgment is “against the weight of evidence” is permissible and proper, while in a criminal appeal a general or ‘Omnibus’ ground that the lower court’s judgment or verdict should be set aside because it “cannot be supported having regard to the evidence” is permissible and proper. In the, instant case appellant couched ground 7 as done in civil case that is judgment is against the weight of evidence! It is not proper and even on this ground it will be struck out. See Atuyeye v. Ashamu (1983) I NWLR (Pt.49) 267.
I will now resolve the three issues raised serially. As regards issue I learned counsel for the appellant Mr. Festus Keyamo contended that the learned trial Judge wrongly convicted the appellant on the 2nd count because appellant did not collect the sum of N768,000.00 (Seven Hundred and Sixty-Eight Thousand Naira) from PWI. Even if he did counsel contended that the evidence on record does not reveal that it, was done under false pretence.
Learned counsel submitted that the evaluation of evidence is the primary function of the trial court but urged this court to re-evaluate the evidence on record since it is not in relation to credibility of witnesses. Learned counsel urged the court to examine the exhibits on record i.e. statement of witnesses and give probative value to them. In support of this proposition learned counsel cited the cases of Iheanacho & ors v. Chigere & ors (2004) 17 NWLR (Pt 901) 130 at 152 paras E-G; Atungwu v. Ochewu (2004) 17 NWLR (Pt 90 I) 18 at 42 paras B-C and Adebayo v. Aduse (2004) 4 NWLR (Pt 862) 44 at 77 paras E-G. Learned counsel urged the court not to believe the story presented by PW 1 that PW2 kept the money for him at home instead of the bank. Furthermore, learned counsel pointed out that PW 1 did not mention the name of Mrs. Angela Agha (PW2) in his statement to the police at page 157 of the record. Rather the name of one Blessing, Budu was mentioned. It was further contended by appellant’s counsel that the evidence of Mrs. Angela Agha was concocted. In her statement to police at page 159 of the record she said the money was the money her brother (PW1) gave her to keep when he came back from his trip. In her oral testimony at page 36 of the record she said it was the money her immediate younger brother sent to PW1 from Germany. Learned counsel referred to the cases of Aruna v. State (1990) 6 NWLR (Pt 155) 125 at 134 paras B.G; Okonkwo v. State (1998) 4 NWLR (Pt 544) 142 and Ikem v. State I 7 (1985) 1 NWLR (Pt 2) 378 to re-iterate the position of the law that where the testimonies of the prosecution witnesses clearly conflict, it is not open to the prosecution to pick and choose between the testimonies. Similarly it is not open to the court to credit one and discredit the other unless a proper foundation is laid for such a course. Learned, counsel also submitted that the court glossed over very important aspect of, defence witnesses (01-05) that throughout the period when they tried to reconcile both the PW1 and the, Appellant, no mention was made at all of the so-called N768,000.00. It meant issue of the N768,000.00 was a clear after thought.
The question posed by appellant’s counsel is whether the fact that appellant collected sum of N768,000.00 from PW1 is sufficient to ground a conviction on the 2nd count charge. Learned counsel referred to the elements necessary to establish a charge of obtaining by false pretence as stated by the learned trial Judge at page 149 of the record. Learned counsel contended that the second condition is most crucial that is that the delivery of the property was induced by false pretence. Learned counsel argued that the evidence before the court which is uncontroverted by all sides is that the Appellant allegedly demanded for the N768,000.00 to purchase more cars.
PW1 said so himself at page 28 and 32 of the record. He said a few months later the police actually recovered four extra cars the appellant allegedly bought in Port-Harcourt which were also for sale. He also said the court itself, at page 149 of the record accepted the money was to be used to purchase more cars. Learned counsel contended that nobody testified as to the time limit set for the money to be paid back. The question he posed is where is the false pretence? He said there is, none. Learned counsel urged the court to hold that the learned trial Judge was wrong to have convicted the appellant on the charge of obtaining by false pretence. He urged the court to discharge and acquit appellant on count 2.1 He similarly urged the court to resolve issue in favour of the appellant.
In response (Mrs.) Pius-Iomumbe ‘Chief State Counsel contended under issue 1 formulated by the respondent that appellant was charged for obtaining property by false pretence contrary to Section 1(1)(A) of the Advance Fee Fraud and other Fraud Related, Offences Decree No 13 of 1995 as amended, punishable under Section 1(3) of the same Decree. Learned counsel contended that in proving count 2 of the charge, the respondent showed that property was obtained by the appellant in Nigeria from PW1 and that the delivery of the said property ‘was induced by false pretence. Learned counsel relied on the affidavit sworn to by one Adah John Adah in support of bail application of 5th November, 2002 filed by appellant to confirm that appellant collected N768,000.00 from PW1. Appellant also collected four vehicles, sold them and started trading with proceeds. See page 14 – 17 of additional record. Learned counsel also referred to Exhibit ‘A’ attached to counter-affidavit of respondent sworn to on 22nd of November, 2003, which formed part of the record of lower court the originating summons for bail. Learned counsel contended that the evidence adduced by the respondent coupled with the admissions of the appellant was sufficient to warrant a conviction on this count giving effect to the strict provision of Advance fee fraud and other fraud related offence Decree No 13 of 1995 as amended. Learned counsel cited the cases of Nigerian Shippers Council v. United World Limited Incorporated (2001) 7 NWLR (Pt 713) 576 at 584; African Newspapers of Nigeria Ltd v. F.R.N. (1985) 2 NWLR (Pt 6) 137; Miscellaneous Offences Tribunal v. Okoroafor (2001) 18 (Pt 745) 295 at 335 and Okafor v. Dumiz (Nig) Plc, (1998) 13 NWLR (Pt 580) 88 at 90 ratio 6 to buttress her submission.
Learned counsel further contended that the evidence of PW1, PW2 and PW3, regarding count 2 were direct and uncontroverted. The statement of account Exhibit D also added flesh to this piece of evidence. She contended that PW3 testified positively in favour of respondent as an eye witness.
Respondent’s counsel submitted that the denial of the appellant amidst the overwhelming evidence that he never collected N768,000.00 from PW1 showed the clear fraudulent conduct of the appellant in dealing with PW1 and false pretence was portrayed clearly as such, the lower court had no choice but to convict him accordingly. She relied on Section 14 and 16 of the Decree. Learned counsel further urged the court to affirm the conviction of the appellant and order of the lower court in respect of restitution. Respondent’s counsel contended that there was no contradiction or any material contradiction in the evidence of respondent’s witnesses to have warranted the discharge and acquittal of the appellant.
I wish to note that although appellant was charged on five counts, he was only convicted on counts 2, 3 and 5 and found not guilty on counts 1 and 4. The complaint of the appellant is therefore against his conviction in respect of counts 2, 3 and 5.
As regards count 2 obtaining money by false pretences the elements, necessary to be established are:-
1. The property was obtained by the accused person in Nigeria (or any other country) from another person whether through the medium of a contract or any other medium and
2. That the delivery of the property was induced by false pretence.
What was therefore the evidence upon which the appellant was convicted for obtaining money by false pretence. The summary of the evidence of PW 1, the main witness and victim, in chief was that he is a trader and that he met, the accused person in their church in 1993, Assemblies of God church, but became close in 1996/97. That he went on 2nd trip to Germany to purchase cars and other items for sale in Nigeria and that it was after his 2nd trip that, the accused person suggested to him that certain vehicles would sell better in Port-Harcourt, so he gave him 4 vehicles namely, 2 Mitsubishi buses, 1 Honda civic and I Mercedes 190 to sell through PW4. He further testified that after demanding from the accused person for the proceeds of sale of the, cars, which the accused person denied, he discovered in March 2002, that the proceeds had been remitted into the accused person’s Wema Bank, Idi-Iroko Branch Account by the said PW4, the car dealer, between January to, early March, 2002, in respect of 3 cars. He also testified that apart from the vehicles, he gave the accused person some juice, tinned tomato and 1 Motorola hand set to sell plus cash sum of N1768,000. He said the accuse, person collected the cash sum from him at his sister’s place in her presence, and that of PW3 Igwe Okoro, who persuaded him to give the cash to the, accused for supply of cars on the understanding that he would buy more, vehicles and repay all monies by March, 2002. He said when he confronted the accused person about the discovery of sale of the cars at Port-Harcourt, accused admitted but promised to pay all outstanding monies in May, 2002, but failed to do so. He then reported the matter to Ports CID in June, 2002.
PW I further stated that when the accused person was arrested, he denied, knowing him but en route to the station, he admitted he knew him, about the vehicles, and agreed to pay him 1,1300,000which he had not paid till date.
PW2 testified to the effect that PWI, her brother, came with the accused person and PW3 to collect cash sum of N1768,000 he kept with her.
The money was given to accused in their presence and accused promised to pay back unfailingly in March, 2002. She said the cash sum was money sent by their junior brother to PW 1 when PW I ‘went to Germany and that PW I left the next day. She testified that PW1 told her that the accused person wanted the money to supply cars and that she knows the accused person very well and he knows her too. She said the accused person has not paid back the money to PW 1 till date.
PW3 Igwe Okoro confirmed that accused collected sum of N768,000 from PW2 in his presence when the accused told him PW1 was demanding for his money he advised him to pay but that the accused person kept insisting that PW 1 should be patient.
PW4 the car dealer gave evidence in line with that of PWI as to the 4 vehicles and dates of remittances between Januarys – March, 2002 of proceeds of sale of the vehicles to the accused person’s Wema Bank, ldiroko Branch account through his Port Harcourt branch. He said he was aware that accused person had not given the money to PWI. He further testified, that after these remittances totaling over N1.3m, the accused person still brought him more vehicles after March, 2002, including a Volkswagen paragon that he sold and again remitted N360,000 after expenses.
PW5 testified that on the 26th day of June, 2002, a petition was received from the office of the COP Port Authority Police, and on the 30th day of June, 2002 pursuant to the complaints made by PW1, the accused person was arrested at his church. He said the accused person denied knowing PW1. He then took the statement of the accused. While on their way back, accused admitted knowing PW1 and told him how they became friends and the details of what happened. He stated that the statement recorded from the accused person was not taken by any coercion, force or inducement. He said accused told him he had only one vehicle in Port-Harcourt and had sold the others but when they went to Port-Harcourt, he found out that this was not so. That the 4 cars plus cash of N260,000 were impounded. The initial statement of the accused of 30/6/02 was tendered and admitted as Exhibit B, while the additional one of 2/7/05 was tendered and admitted as Exhibit ‘C’. He said further to their investigation, a letter was written to Wema bank to get statements of account of the accused person but they needed court order. The originals of the statements of account obtained by court order were tendered and admitted as Exhibit ‘D’.
He said a letter was also written to customs, to confirm genuineness of documents recovered from the car dealer and said to have been given to him by the accused. The said letter and response from customs were tendered and admitted as Exhibits E & F. He said the accused person opened up only after his statement had been taken and admitted collecting N768,000 in the presence of PW1.
On the part of the defence accused (appellant) testified as DW6 and called five other witnesses. In his testimony the appellant (DW6) testified that he had known PWI since 1993 but became very close in 1998. He said they had both put money together as capital to do juice business, cowbell distributorship etc. He said sometimes in 1999, he sponsored PW1’s first trip to Germany, by selling a Mercedes 190 and used proceeds to buy ticket, visa etc. He said he believed this sponsorship was part of his contribution.
Accused said that PW 1 went in 2000 but vehicles landed in 2001. He said proceeds, of sale of the vehicles were remitted as agreed to his account. He tendered his Wema Bank Teller which was admitted as Exhibit J. Accused said after all expenses reconciled the balance owing to PWI was N300,000. He gave further evidence on how N1.2I6m proceeds from the 3 vehicles of the disputed 4 sold belonged jointly to both of them. He said he had never forged any documents and when shown Exhibit G series, he denied knowledge of them. He also said he did not deny knowing PWI or about the vehicles in dispute. He also denied not informing PW1 of sale or remittances. Accused said he gave him N200,000 cash and PW1 made other withdrawals. He identified Exhibits B & C, his statements. He stated that the originals of documents for the cars were with the police but denied that Exhibit G series were the copies of same. He conceded owing PW1 only N300,000 after yet another explanation of buying, clearing of cars and deduction of expenses. He denied collecting N768.000 from PW1, his sister, PW2 or anyone at all. This was the summary of the totality of the evidence adduced before the lower court as disclosed in the record with the exception of testimonies of PW6 and DWI-DW5.
The learned trial Judge disbelieved the evidence of appellant and his witnesses. He believed and accepted the evidence of the prosecution and found that the prosecution has proved the case against appellant beyond reasonable doubt, convicted him and sentenced him to 10 years imprisonment on the 2nd count. The finding of the lower court appeared at page 150 of the record. The learned trial Judge observed as follows:-
“Regarding the N786,000 in the 2nd count, this court had no reason to doubt the unshaken testimonies of PW 1-
PW3 in this regard. The court did not believe the bare faced denial of the accused person.
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This court believed the evidence of PW 1 and PW2 and indeed that of PW3 which the defence witnesses tried to discredit as to the collection of this sum. The court also found the Police Officer PW5 a truthful witness and believed his evidence that it was after he took down the statement of the accused person that he opened up and told him about the cash, juice and of her items collected from PW1. Contrary to the submission of learned defence counsel there were no material contradictions as to this amount and indeed the other sums involved. PW4 was also a credible witness who gave a clear account of the Vehicles, how they were, brought, what he sold for and after deduction of his expenses. Indeed the sum of N1.6m being claimed in the charge is not disputed by the accused he merely says N1.3m of same is expenses leaving a balance of N300,000 ……………
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This court therefore finds and holds that the accused person collected the sum of N768,000 from PW1 Onyekachi Budu. This court must further hold that from the overwhelming evidence before the court that sum was for supply of cars, which further cars he never told Onyekachi about until PW1 discovered them after his arrest. Consequently, this court must draw the necessary conclusion that the accused person intended to and obtained that sum under false pretence and he is accordingly found guilty of this 2nd count.”
Issue 1 under consideration was distilled from grounds I and 2 of the amended notice of appeal filed on 20/03/07. The two grounds of appeal challenged and attack the findings of fact b) the learned trial judge as well as error in law. For clarity grounds 1 and 2 provides as follows:-
“GROUND ONE:
The learned trial Judge erred in fact when he held that the Appellant collected the sum of N768,000.00 from PW1 under false pretence.
PARTICULARS
1. The Prosecution did not discharge the burden imposed on it by law to prove the fact beyond reasonable doubt as the evidence of the collection of the sum before the court was weak.
ALTERNATIVELY
GROUND TWO:
The learned trial Judge erred in law when he held that the Appellant collected the sum of N768,000 from PW1 under false pretences
PARTICULARS
1. Assuming without conceding that the Appellant collected the said sum of N768,000.00 from PW1, it could not be by false pretence as the court found as a fact that the sum of was actually used to buy more cars which was the reason why the money was allegedly collected.”
It is a well settled principle of the administration of justice that questions relating to primary findings of fact are ordinarily exclusively within the domain of the court of trial. This is because it is the court of trial which has the opportunity of observing the witnesses gives oral evidence and determining their credibility from their demanour and behaviour before the court of trial. See State v. Nafiu Rabiu (1180) 8 – II SC 130; Nasamu v. The State (1979) 6 – 9 SC 153, 161. The Court of Appeal which is not in the same advantageous position as the court of trial cannot set aside the judgment of the court of trial merely on the grounds that, it would have, if it were considering the matter, come to a different conclusion. Hence, so long as there was evidence from which the learned judge could have come to the conclusion to which he did, the verdict cannot be disturbed. See R v. Omisade & ors (1964) I NMLR 67; Efe v. The State (1976) II SC 81.
However, it is well settled that where the record discloses that the finding of the trial court cannot be supported on the Evidence, such a finding will be disregarded and this court can interfere by, setting aside the finding. See: Nafiu Rabiu v. The State (1980) 8 -11 SC 130; R v. Ogodo (1961) All NLR 700; Agbeyegbe v. I.G. of Police (1955) 15 WACA 37; Edet v. Board of Customs & Excise (1965) NWLR 188.Appellant’s counsel attacked the judgment of the lower court on the ground that the prosecution witnesses gave conflicting testimonies.
Reference was made to the testimony of PW2 that he made conflicting testimony as to how she came into possession of the money sum of N768,000.00. In her statement to the police at page 159 of the record she said the money was the money her brother (PW1) gave her to keep when he came back from his trip. In her oral testimony at page 36 of the record she said it was the money her immediate youriger brother sent to PW I from Germany. I do not regard the discrepancy as material. It is settled that contradictions in the evidence of witnesses may not be necessarily fatal to a case especially when they are minor and do not affect the case. In the instant case the contradiction is minor and did not affect the credibility of the evidence of PW2. See Archibong v. State (2006) 14 NWLR (Pt 100) 349 at 376 and Ankwa v. State (1969) I All NLR 133. What is important is the fact that PW 1 owned the money in dispute. Moreover, it is now settled that a court or tribunal can accept part of a witness’s evidence and reject other parts. See INEC v. Oshiomole (2009) 4 NWLR (Pt 1132) 607; Awuse v. Odili (2005) 16 NWLR (Pt 952) 416 and Ebere v. State (2001)12 NWLR (Pt 728) 667. From the finding of the lower court reproduced supra, the learned trial Judge believed the testimonies of PWI, PW2 and PW3 to the effect that appellant collected N768,000 from PW2 money belonging to I PW I on the ground that he would purchase more cars for sale. Contrary to the submission of appellant’s counsel the learned trial Judge did not gloss over the aspect of the testimony of defence witnesses (D I – D5) that the issue of 768,000 was an after thought since PW I did not mention to the witnesses during their reconciliation period, that he gave appellant such amount of money. After considering the testimony of the defence witnesses the learned trial Judge observed at page 1st if the record as follows:-
“Their evidence therefore has little probative value and this court did not believe much of it. See the case of Okochi v. Animkwon (2003) 2 – 3 Sc 65 at 76 where the Supreme Court held:
“the belief or disbelief of evidence of parties does not depend upon the number or witnesses who gave evidence in the court. Belief or disbelief of evidence depends on the probative value of the evidence as evaluated by the trial court in terms of veracity or authenticity of the witnesses. A village or community of witnesses may give evidence which the trial court may not believe”.
Having regard to the evidence adduced by PW1 PW2 and PW3 which I too accept as cogent and credible the finding of the learned trial Judge that appellant collected sum of N768,000 from PWI cannot be faulted. An earlier stated in this judgment determining the credibility of witnesses from their demeanour is the responsibility of the trial court. Furthermore, PW5 the police officer who investigated the case also comfirmed in his testimony that the sum of N768,000 which PW1 said appellant borrowed from him was part of the complaint investigated by him. When cross-examined by defence counsel PW5 responded at page 54 of the record as follows:-
“Question: The sum of N700,0000 was for what? Was he PW 1 a money lender? What was it for?
Answer: It was given in the process of helping 1st prosecution witness sell vehicles. The accused person did not deny the sum but he did not want to write so we left him. Our position is merely to find out the truth of the matter.”
This piece of evidence comfirmed that the complaint made by PW1 that appellant collected sum of N768,000 from him was not an afterthought.
The next question to resolve is whether the delivery of the property was induced by false pretence. The word “false pretence” is defined in Black’s Law Dictionary Seventh Edition at page 619 as: “The crime of knowingly obtaining title to another’s personal property by misrepresenting a fact with intent to defraud”.
The Oxford Dictionary of Current English New Revised Edition also defined false pretences as follows. “Misrepresentations made with intend to deceive”.
Section 23 of the Advance Fee Fraud and other Fraud Related Offences Decree No 13 of 1995 as amended also defines false pretence as follows:-
“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.
The denial of the accused person (appellant) amidst overwhelming evidence that he never collected additional sum of N768,000.00 from PW1 shows the clear fraudulent conduct of the accused in dealing with PWI and false pretence is portrayed clearly as he knew that he was not going to honour the obligation as he promised. PWI demanded for his money in March, 2002 but appellant failed to pay as promised. PW5 also testified that at the time of appellant’s arrest he denied knowing PWI. The conduct of the appellant showed that he never intended to pay back the money. Contrary to the submission of appellant’s counsel there was time limit given for the payment of the money which was March, 2002. I agree with the submission of respondent’s counsel that there was ample evidence to support the conviction of the appellant on the 2nd count. As rightly found by learned trial Judge Prosecution has proved its case beyond reasonable doubt. Issue I is therefore resolved infavour of the respondent.
As regard issue 2 appellant’s counsel contended that the learned trial Judge erred by failing to consider the defence of Bona fide claim of right available to the appellant from the total sum of the evidence adduced in respect of the 3rd count in the charge. Appellant’s counsel argued that it is the Law that it is the duty of a trial court to consider defences available to an accused person in respect of particular charges from the totality of the evidence adduced even if such defences are not specifically put forward by the defence. See Peter Vs State (1994) 5 NWLR (Pt 342) 45 at 64 paras B-E and Kuti & Anor v. Jibowu & Anor (1972) I All NLR (Pt II) 180 at 192. Learned counsel argued that appellant finds himself as regards the dealings with PWI as a commission agent, if not a business partner. He said the cars were given to the appellant who took them to his dealer in Port-Harcourt. It was further argued that the real disagreement was as to what was due to each party. It is only reasonable for the appellant to believe, bona fide that he had a right to some of the money in his possession. He relied on Section 23 of the Criminal Code Act cap C38 LFN 2004. The necessary ingredients required to establish the defence are;
I. The accused must have an honest belief in his claim to the right to do what he is accused of doing and;
2. That what he did would have been lawful on the assumption that the right he claimed existed.
See Nwakire v. C.O.P. (1992) 5 NWLR (Pt 241) 289. It was argued that the belief of the appellant must be held to be bone fide because the circumstances of the case cannot be interpreted to mean that the appellant had no part at all in the amount allegedly in his possession. Learned counsel contended that the defence of bona fide claim of right availed the appellant, as such he urged the court to set aside the conviction on the 3rd count and resolve issue 2 in favour of appellant.
In response to appellant’s counsel’s submission, respondent’s counsel referred to Section 383(1) & (2) of the Criminal Code Act Cap 77 Laws of the Federation of Nigeria 1990 which defines stealing. From the definition,
Respondent’s counsel contended that prosecution proved the following to sustain conviction on count 3:
(i) The charge against the Appellant; was one in respect of obtaining property by false pretence with intent to defraud.
(ii) The subject matter of the charge was a thing capable of being stolen.
(iii) The appellant was proved to have stolen that thing.
See Babalola v. State (1998) 4 NWLR (Pt.115) 264 at 268 ratio 10 & 13.
Learned counsel submitted that it was the evidence of PWI that appellant obtained some vehicles from him on the pre that he will help him dispose them at Port-Harcourt but after disposing of the, vehicles and even after the proceeds of the sale being paid into appellant’s account with Wema Bank Plc Idi-iroko branch, the appellant was still making a representation to PW1 that the vehicles were yet to be disposed. She said appellant denied receiving payment of whatever kind form the dealer (PW4) in March, 2002, meanwhile payments were effected from January 2002. See page 157 of the record. Appellant never owned up receiving money from PW4 until prosecution obtained his statement of account from the Bank (Exh D). See pages 14-17 of the additional record. It was further argued that the evidence of PW4 was clear on the issue that the vehicles were sold and money remitted to appellant’s account with Wema Bank Plc ldi-iroko branch belonged to PW 1. She submitted that there was no documentary evidence to show that the vehicles were jointly owned. Respondent’s counsel further contended that the evidence of PWI and PW4 corroborated by exhibit ‘D’ was therefore overwhelming. See Bako v. Kuje Area Council (2002) 1 NWLR (Pt 694) 380 at 382 ratio 1 at 390 pajas A-D. She argued that the, issue of bona fide claim or commission agent heavily relied upon now by the appellant was not raised at the lower court.
Appellant was convicted on the 3rd count for the offence of stealing.
The question to be resolved is whether the bona fide claim of right is available to the appellant as a defence. By virtue of Section 23 of the Criminal Code a claim of right made in good faith is a defence to all offences relating to property. An accused will not be held criminally liable so long as he asserted that he honestly believed he had a lawful claim of right even though it might be unfounded in law or in fact. Once it is shown that an accused has a bona fide claim of right; the required mens rea is negative. See Nwakire v. C.O.P. (1992) 5 NWLR (Pt.241) 289.
Respondent’s counsel contended that the defence of bona fide claim of right was not raised at the lower court. This is a fact but on 16/1/08 this court granted appellant leave to raise and argue fresh issue on appeal. The order relates to ground 3 of the amended notice of appeal dated 19/3/07 from which this issue was distilled.
To sustain a conviction for stealing prosecution must establish the following ingredients:-
(i) The charge against the appellant was one in respect of obtaining property by false pretence with intent to defraud.
(ii) The subject-matter of the charge was a thing capable being stolen.
(iii) The evidence must have failed to prove the offences of obtaining property by false pretenses.
See Babalola v. State (1998) 4 (Pt.115) 264 at 268 ratio 10 & 13.
Appellant was convicted for stealing the proceeds realized from the sale of 4 cars given to him by PWI. The charge referred to 3 cars. The testimony of PW4 car dealer confirmed that the vehicles were sold and proceeds remitted to appellant’s account by PW4. PW5 testified that in the course of investigation they obtained appellant’s statement of account marked Exh. ‘D’. Exhibit ‘D’ showed the remittance of money between January and March, 2002. Appellant admitted that money wad remitted into his account but claimed that it comprised of his contribution arid share. The learned trial Judge accepted the evidence adduced by the prosecution witnesses especially PW1, PW4, PW5 and PW6 as clear, cogent and believable. The learned trial Judge disbelieved the evidence of appellant as being watery and, unsustainable. In his judgment at page 152 of the record the learned trial Judge observed that the evidence before the court points to the fact that this particular set of cars belonged to PW1 and appellant not only received proceeds of them, but converted same and has not remitted same to PW1 till date. The overwhelming evidence showed that proceeds from 4 cars belong PW1.
Having regard to the evidence adduced by the prosecution can the defence of bona fide right of claim avail the appellant? I will answer the question in the negative. The claim of the appellant that the proceeds remitted into his account is his contribution or share cannot be sustained.
PW1 clearly stated in his testimony that appellant did not pay proceeds realized from the sale of the 4 cars to him. There is also no evidence to show that part of the money was paid to PWI. Appellant also denied receiving payment of whatever kind from the dealer (PW4) in March, 2002.
However, appellant’s statement of account exhibit ‘D’ revealed that the proceeds realized from sale of the 4 vehicles: was remitted to his account.
There is also no evidence to show that they jointly owned the vehicles.
PW5’s evidence also revealed that appellant denied knowing PW1 at the time of his arrest. Appellant’s claim of right, was not made in good faith.
Appellant is required to prove his honest belief in his claim to the right to do what he is accused of doing. I am of the firm view that appellant failed to prove that he believed honestly that he was entitled to retain the proceeds realized from the sale of the 4 cars belonging to PW1. In the circumstances I hold that the defence of bona fide right of claim fails. Accordingly issue 2 is resolved in favour of the respondent. The conviction for stealing is affirmed.
Issue 3 is whether the learned trial Judge was right in fact and in law to have held that the appellant forged the documents of the cars that he gave PW4 to sell only on the basis of Exhibit F. Appellant’s counsel argued that the conclusion of the learned trial Judge that the appellant forged the documents of the cars based largely on Exhibit F is erroneous on the facts before court and on the principles of law relating to the offence of forgery.
Learned counsel submitted that it is the law that, for an accused person to be found guilty on any count, the prosecution must prove its case beyond reasonable doubt. In discharging the burden, prosecution must prove all the essential ingredients of the offence as contained in the charge. He relied on the cases of Onyeachimba v. State (1998)18 NWLR (Pt 563) 587 and Ahor v. State (1997) 4 NWLR (Pt 501) 51 I. Where there is doubt, it must be resolved in favour of the accused person. See Arehibong v. State (2006) 14 NWLR (Pt 1000) 349. Learned counsel further argued that the only evidence presented by the prosecution to prove that the car documents were forged is Exhibit ‘F upon which the court relied in convicting the accused on the 5th count. Appellant’s counsel submitted that Exhibit ‘F; is not direct and cogent enough to establish forgery. It merely states that the bills of lading could not be traced in their records. It did not state that the bills of lading are not from the Nigerian Customs. The entries and signatures appearing on the documents were not denied nor was the authenticity contested. Furthermore, appellant’s counsel contended that the maker of the document was not called on such crucial piece of evidence by the prosecution to elaborate and be cross-examined on the inability of the customs to trace the documents. Learned counsel argued that the only evidence on record is that the appellant gave the ‘documents to PW4 to sell cars. At worst, that can only show that appellant uttered the documents but does not prove that he made the documents. He urged the court to resolve issue 3 in favour of the appellant.
In response to appellant’s submission in respect of issue 3, respondent’s counsel argued that the documents recovered from the appellant in respect of the vehicles recovered at Port-Harcourt were also meant to deceive and defraud. See Babalola v. State (1989) 4 NWLR (Pt.115) 264 at 267. It was further argued that the overwhelming documentary evidence tendered and admitted by the lower court was never controverted by any other document by the appellant and neither did the appellant call the agent he claimed made the documents for him to come and testify and be cross-examined as to the source of Exhibit ‘G’, ‘G1’, ‘G2’ and ‘G3’ since the Nigerian Custom had denied issuing such documents. The rebuttable presumption was that the Appellant made the documents learned counsel also submitted that appellant confessed to the ownership of the documents in his additional statement admitted as Exhibit ‘C’. The test applicable to weight to be attached to a confessional statement was enunciated in Nwaebonyi v. State (1992) 5 NWLR (Pt 244) 8 at 700 and 701 ratios 4 & 5. Respondent’s counsel further argued that respondent was not bound to call Custom Officer. Failure to call custom officer did not affect prosecution’s cases since the appellant’s statement supported the case of the Respondent. See Gyang v. Cbaira (1998) 13 NWLR (Pt 581) 190 at 193 ratio 4 & 5. Respondent’s counsel urged the court to dismiss the appeal and affirm judgment.
Appellant was convicted for the offence of forgery by the learned trial Judge. The trial court relied heavily on Exhibits ‘F’ and ‘G’ series as well as testimonies of PW4, PW5 and PW6 in coming to the conclusion that appellant forged the documents that came with the cars given to PW4.
Appellant denied forging any document in his testimony in court as well as in his statement to the Police marked Exhibit ‘C’.
Section 465 of the Criminal Code defines forgery “as a person who makes false document or writing knowing it to be false and with intent that it may be used or acted upon as genuine…………”
The burden of proving the charge proffered against an accused is on the prosecution. That burden never shifts. The prosecution has the onus of proving the guilt of an accused beyond reasonable doubt. In discharging the burden the prosecution must prove all the essential ingredients of the offence as contained in the charge. See Alor v. State (1997) 4 NWLR (Pt.501) 511; Babuga v. State (1996) 7 NWLR (Pt 460) 279 and Onubogu v. State (1974) 9 SC I. In the instant case having regard to the evidence adduced can it be said that prosecution has proved the essential ingredients of forgery beyond reasonable doubt. My answer is in the negative. Is there any evidence to show that appellant forged the documents exhibit ‘G’ series?
Appellant denied forging the said documents, Exhibit ‘F’ in my humble view is not conclusive evidence of proof of forgery. In response to Exhibit ‘E’ the officer who wrote Exhibit f on behalf of customs Area Controller Tin Can Island Port Apapa, stated that the Bills of Lading attached to the Exhibit ‘E’ could not be traced in their record, I think it would be unsafe to accept this statement as proof that appellant forged the documents, The writer of exhibit ‘F’ ought to have been called, as a witness as rightly submitted by appellant’s counsel. This is a criminal case and the standard of proof required to establish forgery is proof beyond reasonable doubt. See Section 138 of the Evidence Act. Furthermore, the fact that appellant admitted the documents Exhibit ‘G’ series bears the name of his company is not conclusive proof that the made false documents. It is settled that an accused may be convicted on his confessional statement alone. There is no law against it. However, such confessional statement in order to ground conviction must be direct and positive. It must also admit the essential elements of the offence. See Odua v. Fed. Rep of Nig (2002) 5 NWLR (Pt.261) 615 at 637. Upon a careful perusal of exhibit ‘C’ the additional statement heavily relied upon by the prosecution it cannot be said that appellant admitted the essential ingredients of forgery. The admission in my view is not direct and positive. From the totality of the evidence adduced I am of the considered view that prosecution has failed to discharge the burden of proving the essential ingredients of the offence of forgery beyond reasonable doubt. I hold that the conviction of appellant on 5th count cannot stand. Appellant accordingly discharged and acquitted on count 5. Issue 3 is therefore resolved in favour of the appellant.
In the final analysis the appeal succeeds in part. Appeal allowed in part. The conviction of appellant and sentence in respect of count 2 and 3 affirmed, while conviction on count 5 is quashed. Appellant discharged and acquitted on count 5.
The order for restitution made by the lower court is affirmed.
Other Citations: (2009)LCN/3256(CA)
