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Ikechukwu Ikpa V. The State (2017) LLJR-SC

Ikechukwu Ikpa V. The State (2017)

LAWGLOBAL HUB Lead Judgment Report

AMINA ADAMU AUGIE, J.S.C.

The Appellant was arraigned before the Imo State High Court, Orlu, on a two-Count Charge of conspiracy to commit felony, and obtaining money by false pretence. He pleaded not guilty, and to prove its case, the Prosecution called six witnesses.

The case for the Prosecution is that the Appellant obtained the sum of N399. 000.00 from Mrs. Justina Okeke [PW2] on the understanding that he would supply her with gold wristwatches and trinkets, which he claimed were to be cleared at the Wharf; however, the Appellant ran away after he collected the money.

The Appellant testified in his defence and did not call any other witness. He denied the allegation and claimed that PW2 trumped up the Charge against him because he had refused to marry her daughter, ljeoma [PW1], who was his girlfriend then.

The learned trial Judge, Njemanze, J. (as he then was), did not believe him and concluded as follows in his Judgment-

I have considered the totality of the evidence adduced in this case and I accept and believe the evidence of PW1, PW2, PW3 and PW4. I find as a fact that the

Accused represented to PW2 that he had gold watches, trinkets and jewelries to sell to her and as a result of this representation PW2 gave a total sum of N399,000.00 to the Accused. I also find as a fact that the Accused knew at the time he made the representation that he did not have any jewelries or trinkets to sell to PW2. In effect, the Accused knew at the time he made the representation that the said presentation is false. I have considered the defense of the Accused and I do not believe him. The Accused in his defence made strenuous effort to avoid the facts of the allegation against him. I hold from the evidence before me that the Prosecution has proved Count Two of this Charge beyond reasonable doubt. The prosecution failed to prove Count One of the charge beyond reasonable doubt. The evidence is not sufficient enough to prove the offence of conspiracy as charged. I find the Accused NOT GUILTY in Count One of the Charge. The accused is therefore discharged and acquitted in Count One of the charge. From the evidence before me I hold that the Prosecution has proved Count Two of the Charge beyond reasonable doubt. I, therefore, find the Accused guilty of

Count Two as charged.

After Allocutus, the learned trial Judge sentenced the Appellant to a term of “ten years imprisonment with Hard Labour.”

Aggrieved, the Appellant appealed to the Court of Appeal with a Notice of Appeal containing two Grounds of Appeal from which he formulated three Issues for Determination in his Brief. The Court of Appeal resolved all the three issues against him, and dismissed the Appeal. It affirmed the trial Court’s decision.

Further aggrieved, the Appellant has come to this Court to seek succour. His Notice of Appeal filed in this Court contains six Grounds of Appeal and he has formulated four Issues for Determination there from in the Appellant’s Brief of Argument.

The said four Issues for Determination are as follows –

1) Whether the learned Justices of the Court of Appeal were right in holding that the charge contained in Count 2 of the information is substantially in conformity with the provisions of Sections 151, 338 and 463(1) of the Criminal Procedure Act and that the Appellant was not misled by either the Statement of Offence or Particulars of Offence and thereby affirmed [his] conviction and

sentence.

2) Whether the learned Justices of the Court of Appeal were right in holding that the Appellant obtained money under a false pretence when the Particulars of Offence relate to a future event or a future representation.

3) Whether the learned Justice of the Court of Appeal were right in dismissing the appeal of the Appellant and affirming his conviction and sentence when the Prosecution failed to prove the charge against the Appellant beyond reasonable doubt.

4) Whether the learned Justices of the Court of Appeal were right in holding that the defence of the Appellant was not only considered but justifiably rejected by the trial Court even when the trial Court did not consider the defence of the Appellant or evaluate the Appellant’s evidence and whether the lower Court was right in holding that the learned trial Judge had the jurisdiction all through the proceedings to entertain the charge.

The Respondent, however, identified the following four Issues for determination in this Appeal from the Grounds of Appeal –

i. Whether the learned Justices of the Court of Appeal were right in holding that the charge contained in Count 2 of the

information is in conformity with the provisions of Sections 151, 338 and 463 and that the Appellant was not misled.

ii. Whether the learned Justices of the Court of Appeal were right in holding that the Particulars of Offence do not relate to a future event or a future representation.

iii. Whether the Prosecution proved its case beyond reasonable doubt.

iv. Whether the learned Justices of Court of Appeal were right in holding that the evidence of the Appellant was properly evaluated and his defence justifiably rejected and whether it was right to have held that the trial Judge had jurisdiction to entertain the charge.

In my view, apart from the fact that the Respondent’s Issues are a bit more direct, the Issues formulated by the two of them target the same complaints in the aforesaid Grounds of Appeal, and I will consider them in the order in which they are argued.

Issue 1 questions whether the Court of Appeal was right to hold that the charge contained in Count 2 of the information is substantially in conformity with provisions of Sections 151, 338 and 463{1) of the Criminal Procedure Act [CPA]. Section 151, which deals with

Form of Charge in the CPA, provides that –

(1) Every charge shall state the offence with which the Accused is charged and if the written law creating the offence gives it any specific name, the offence may be described in the charge by that name only.

(2) If the written law which creates the offence does not give any specific name, so much of the definition as to give the accused notice of the matter with which he is charged.

(3) The written law and section of the written law against which the offence is said to have been committed shall be set out in the charge.

(4) The fact that a charge is made is equivalent to a statement that every condition required by law to constitute the offence charged was fulfilled in the particular case.

Section 338 of the same CPA sets out Contents of Information and Section 463 (1) of the CPA further provides as follows –

Subject to express provisions, if any, of the rules, the forms and precedents contained in the First, Second and Third Schedules to this Act may, in accordance with any instructions contained in the said forms, and with such variations as the circumstances of the particular case may

require, be used in the cases to which they apply and, when so used, shall be good and sufficient in law.

In this case, the said Count Two of the information reads thus-

Obtaining Money by False Pretence, contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Decree No. 13 of 1995, LFN as amended by Decree No. 62 of 1999, applicable in Imo State of Nigeria. (Hereinafter referred to as the Decree)

The PARTICULARS OF OFFENCE states as follows –

IKECHUKWU IKPA and others now at large between the 1/12/1998 and 8/12/1998 at Orlu in Orlu Judicial Division fraudulently obtained several sums of money totaling N399,000.00 from one Mrs. Justina Okeke under a false pretense that you will supply to her golden wrist watches and trinkets of the value of the same amount you obtained from her, which golden wrist watches and trinkets you did not have to your knowledge.

The Court of Appeal held as follows on the issue of Charge-

The Charge against the Appellant not only stated the specific name of the offence committed as obtaining money by false pretence but also stated the written law as the Advanced Fee

Fraud and Other related offences Clearly therefore, sufficient notice of the matter charged was given to the Appellant. Also, Section 463(1) of the CPA, which deals with the use of Forms in the schedules, clearly permits the use of the punishment section of the offences in the drafting of Charges on information. In the instant case, Count 2 of the Statement of Offence is in conformity with the Model in the Third Schedule as stipulated under the provisions of Section 338 and 463 of the Criminal Procedure Act.

The Appellant submitted that Section 1(3) of the said Decree did not disclose any definition of offence, therefore, he was not charged under any substantive law but was only charged under a punishment section for an offence, whose provision was not expressly stated in the Statement of offence, which is a gross violation of the provisions of Section 36 (2) of the Constitution.

Furthermore, that it is settled that the substantive law under which a person is standing trial must be stated in the Charge; that it would be wrong for a Court to speculate as to whether he was charged under Subsection (1) or (2) of the Decree; and that the

failure to charge him under a substantive law rendered the trial a nullity – A-G., Fed. V lsong (1986) 1 WLRN 75, Okeke V. IGP (1965) All NLR 81, Abu v. Amaize (2005) 4 ACLR 582.

He further submitted that the law enjoins the Prosecution, when drafting a Charge, to follow the words of the provisions of the law under which the Charge was laid Ofuani V. Nig Navy (2007) 8 NWLR (Pt. 1037) 470 and Yerima & 2 Ors V. State (2010) 14 NWLR (PT. 1213) 25; that the use of the word shall in Section 151(3) of the CPA makes it absolutely mandatory that the Written Law and Section thereof shall be set out in the charge since shall” has always been constructed as mandatory and not permissive or directory -Nwankwo & 2 Ors V. YarAdua & 4 Ors (2010) 12 NWLR (Pt. 1209) 518, Agip (Nig) Ltd. V. Agip Petroli International & Ors (2010) 5 NWLR (PT 1187) 348.

He also argued that the Court of Appeal was wrong to hold that Count Two was in conformity with the model in the Third Schedule of the CPA because it is wrong to use the punishment Section of the offence in the drafting of Charges on Information – Festus Amayo v. State

(2001)18 NWLR (Pt 745) 251 at 290.

The Appellant also contends that the Particulars of Offence is incompetent because Section 1(1) of the Decree makes “intent an essential element of the offence. He argued that the clause “and with intent to defraud was not part of the said Particulars: that where an offence consists of doing an act with particular intent or in a particular manner, the Charge must allege it was done with that intent or in that manner R. V Yakubu (1994) WACA 262 and that the details as provided by law as it relates to intent must be stated on the charge sheet and failure to do so is fatal and vitiates the trial – COP v Agbi (1980) 1 NCR 234.

The Respondent, however, argued that the Charge contains the requirements stipulated in Section 151 of the CPA in that it stated the specific name of the offence and also the written law; that the said Section 463(1) of the CPA permits the use of the punishment Section of the offence in the drafting of Charges – Criminal Procedure of the Southern States of Nigeria, 2nd Ed. by Fidelis Nwadialo at 121, Section 151(3) of the CPA; and that the Appellant’s complaint is misconstrued

because where a Section defines an offence and another prescribes the penalty, precedents in the Second and Third schedules to the CPA follow the practice of referring to the Section prescribing the penalty, and since these Forms are good and sufficient in law, the practice must be regarded as correct – Brett and Maclean: Criminal Code of the Six Southern States by Akinola Aguda.

On the question of intent, the Respondent submitted that the Charge used the term ‘fraudulently obtained” and from the definition of “fraudulent as “intended to deceive somebody” – Oxford Advanced Learner’s Dictionary Special Edition at 472, the words with intent are clearly embedded in the Charge – Section 152 of the CPA; that the Appellant had sufficient notice of the said charge against him, and was therefore not misled – Okoyen V. Police (1964) NMLR 146, Queen v. Ijomah (1962) 1 ALL NLR 402, Amodu v Police (1955) 21 NLR 39 and Akinloye & Ors v. Way (1967) NMLR 107 and that the recent trend is for the Courts to ask whether the Appellant was misled, in keeping with provisions of Section 166 of the Criminal Procedure Law.

It further

argued that under Section 167 of the said CPL, any objection to a charge shall be taken immediately after the Charge has been read over to the Accused and not later; that the use of the word “shall is couched in mandatory term – Obakpolor v. State (1991) 2 LRN 314, and that there is nothing in the Records to show that the Appellant raised any objection, and as he was represented by counsel, he cannot now raise it.

It also referred to Sections 166 and 168 of the Criminal Procedure Law, Ogbomor V. State (1985) 2 SC 289 and John Ojukwu V. Police 5 ECSL 245 and submitted that Appellant was never misled by the Charge as he was represented by counsel.

Let me quickly say that far from being misconstrued as the Respondent argued, the Appellant’s complaint is well-founded. Section 1 of the Decree, applicable in this case, provides –

(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intent to defraud-

(a) Obtains, from any other person, in Nigeria or in any other country for himself or any other person; or

(b) induces any other person, in Nigeria or in any other

country for himself or any other person; or

(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under this Act.

(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitted a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Decree.

(3) A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term not less than ten years without the option of fine.

Olanrewaju Adesola Onadeko explained the practice in drafting Charges in his book – The Nigerian Criminal Trial Procedure –

The practice — is to refer to the section prescribing the punishment for the offence in the charge. For example, although Section 383 of the Criminal Code defines the offence of stealing, it is Section 390, which prescribes the punishment for stealing that is referred to in a

charge. Where the same section defines and stipulates the punishment for an offence, the section will be referred to–The use of punishment section conforms with the precedents contained in the Second and Third Schedules to the Criminal Procedure Act. Where a law creates a number of offences in different sections and later prescribes in a single section a general punishment for them, both the section creating the offence as well as the general punishment section must be referred to in the charge. The section creating the offence will first be mentioned before the punishment section. The offender will be referred to as having committed an offence contrary to the offence creating section; and punishable under the punishment prescribing section.

In other words, the procedure, as Oluwatoyin Doherty (Mrs.) explained in Criminal Procedure in Nigeria: Law and Practice is

(i) Where an offence is defined in one section and the punishment for the offence is prescribed in that same section, the charge sheet must state that section only.

(ii) Where an offence is defined in one section and the penalty for the offence is

prescribed in another section, the charge sheet must state the penalty section.

(iii) Where an offence is defined in one section, but the punishment for that particular offence and other offences are jointly stated in a separate section, the charge sheet shall state both the definition section and the penalty section. Therefore – – the charge sheet should contain both the section defining the ingredients of the offence allegedly committed and the section prescribing punishment for the said offence.

In this case, the offence of obtaining property by false pretence is defined in Subsections (1) and (2) of Section 1 of the Decree, and the penalty for the offence is stated in its Subsection (3).

However, Count Two of the said Information simply states – “obtaining money by false pretence contrary to Section 1 (3) of the Advance Fee Fraud and other Related Offences Decree”; instead of reading – contrary to Section 1 (1) or (2) of the said Decree and punishable under Section 1 (3) of the said Decree.

The Appellant’s position is that this error vitiates the entire trial; but Section 166 of the CPA makes it abundantly clear that –

No error in

stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission.

In Ogbomor V. State (supra), also (1985) 1 NWLR (Pt. 2) 223, this Court, per Karibi-Whyte, JSC, explained the law as follows-

Thus, error in stating the statute or in the section of the statute under which the information or charge is laid per se will not be registered as material unless the accused is misled by such omission or error. However, where the omission or error is sufficient so as to mislead the accused in his defence, of the charge, such omission or error is material and would in my opinion, vitiate the trial. Thus, the law distinguishes omission or errors, which are trivial and not material and will not vitiate a trial, and those, which are material and will vitiate the trial. Where the omission or error is material to the charge, it necessarily misleads and will vitiate the trial. For instance, where the information refers to a repealed enactment, and there is no similar offence known to

law, the error would be regarded as material and fundamental, and will undoubtedly mislead the accused – See R. Ogunremi (1961) 1 All NLR 467.

In that case (supra), the Appellant was charged inter alia with possessing an offensive weapon but the statement of offence did not state the statute he was alleged to have contravened.

The question in Ogbomors Case (supra) was the effect of non-compliance with provision of Section 151(3) of the CPA and on this score, Karibi-Whyte, JSC, concluded as follows –

I do not think Appellant was misled by the omission of the phrase special provisions in the identification of the written law under which the offence with which he was charged was laid. Appellant was throughout represented by counsel, who is presumed to appreciate the difference between a trial under the Robbery and Firearms (Special Provisions) Decree and a trial by the regular Courts under the provision of S. 402 of the Criminal Code. Furthermore, Appellant was charged under the provisions of S. 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 as amended— which corresponds completely with the

offence as laid in the information.

Karibi-Whyte, JSC, further explained as follows in that case-

The mis-description of the status creating an offence does not remove the acts or omission in the information from the category of offences known to law; where such offences already exist. There is no doubt that the Robbery and Firearms (Special Provisions) Decree No. 47 of 1970 is such a law as prescribed under S. 33(12) of the Constitution 1979. There is also no doubt that it creates the offences under which the Appellant was charged. It is in the circumstances of little moment to contend that the statute stated in the information did not create any offence. What is material, in my opinion, is whether Appellant was charged with an offence known to law. As long as Appellant was not misled by the omission, no miscarriage of justice has occurred and the conviction is right.

Oputa, JSC, had this to say in Ogbomor v. State (Supra)-

The important thing about the charge in any criminal case is that it must tell the person accused enough, so that he may know the case alleged against him and prepare his defence for the fact that a

charge is made equivalent to a statement that every legal condition required by law to constitute the offence charged was fulfilled in the particular case – Section 151(4) of the CPA. The charge must not, therefore, have defects or errors, which could mislead the accused. The emphasis is not, on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omission could and did in fact mislead the defence. Subject to the above, a defect, error or omission, which does not prejudice the defence, is no ground for quashing a conviction on a charge for a known offence.

In this case, the Court of Appeal held as follows on this issue –

The Appellant, who was represented by counsel, not only at the time his plea was taken but so effectively throughout the trial, could not be said to have been misled by either the Statement of Offence or the Particulars of Offence— The Record of 7/11/2001, when the Appellants plea was taken is in summary as follows-

The Accused is present

Appearances

S. Oni., for the Prosecution.

C. Attama, Esq., for the Accused.

Plea: The

charge is read to the Accused in English and he seemed perfectly to have understood the charge before pleading thereto as follows:-

Count one: Not Guilty

Count Two: Not Guilty

Mr. Attamma says that the Accused is on bail. That he was granted bail on 23/10/2000 by Ukachukwu, J., sitting in High Court 2. He applies that the bail be allowed to continue on the same terms and conditions. Mr. Oni says he does not oppose the Application.

Court: This case is adjourned to 23/12/2002 for hearing. The bail granted to the Accused on 23/10/2000 is to continue on the same terms and conditions.

In the instant case, there was no objection at the time of taking the Appellants plea about any defect in the charges against the Appellant. The Appellant was effectively represented by counsel throughout the proceedings.Assuming without holding that there was any defect in the Charge against the Appellant, I agree with the Respondents counsel that in all the circumstances of the case, the Appellant was not misled by the charge against him.

The above decision of the Court of Appeal cannot be faulted and this is where I say

that the Respondent is absolutely right. The Appellant had reason to complain but it is the timing or the stage of making his objection that put the spanner in the works. Section 167 of the CPA says that any objection to a Charge for any formal defect on the face of it shall be taken immediately after the Charge has been read over to the Accused; not later.

There is also nothing to indicate that Appellant was misled by the non-inclusion of the said definition Section in the Charge. As the Court of Appeal rightly observed, the said Charge stated the specific name of the offence committed and the written law, therefore, the Appellant had sufficient notice of what he was up against when he pleaded not guilty to the Charge read to him.

The important question is whether the Appellant was misled by the error or defect in the Charge – Ogbomor V . State (supra). The Appellant was charged with an offence known lo law and he was represented by counsel from Plea to Judgment stage, and since there is no evidence that the Appellant was misled, no miscarriage of justice occurred and the conviction is right. The said issue 1 is, therefore, resolved against the

Appellant.

Issue 2 questions whether the Particulars of offence relate to a future event or representation. The Court of Appeal held –

The Particulars of Offense did not show any future representation, more especially as the Particulars of Offence disclosed that at the time of the representation, the Appellant knew that he had no trinkets to supply to the Complainant. The Particulars of offence, which clearly reveals a present representation reads as follows-

Ikechukwu Ikpa and others now at large between 1/2/1998 and 8/12/1998 – – fraudulently obtained several sums of money totaling N399,000.00 from One Mrs. Justina Okeke under a false pretence that you will supply to her golden wrist watches and trinkets of the value of the same amount you obtained from her, which golden wrist watches and trinkets you did not have to your knowledge.

The charges show that the Appellant obtained money under a pretence that he had trinkets, which at the time of the representation, he knew he did not have. This is different from the case of Anchora v. Police (1958) 3 FSC 30 and Anu v. Police (1958) 3 FSC 34 cited by the Appellants

counsel wherein the pretence was that the accused will use money for a particular purpose. Clearly, therefore, the Charge in the instant case does not relate to a future representation.

The Appellant submitted that the Particulars of Offence relate to future promise, future conduct and future representation, and is absolutely incompetent; and so, the Court of Appeal is wrong – Achonra V. IGP (1958) 3 FSC 30, Anu V. IGP (1958) 3 FSC 34 and State V. Osler (2005) 4 ACLR 502 at 514. He mixed up his arguments on this Issue with his earlier contention that he was misled by the Particulars of Offence since the clause that deals with mens rea or intent to defraud was omitted from the charge.

However, the gist of his arguments with regard to this issue is that the portion of the Particulars of Offence that says “under a false pretence that you will supply to her golden wristwatches and trinkets”, relate to a future promise or future representation and it is wrong and incompetent to charge him under the same; that the said Achonra’s Case (supra) and Anu’s Case (supra) are binding on the Court of Appeal, and the distinction drawn of the said two cases by the

Court of Appeal, does not arise at all.

The Respondent argued that the Particulars of Offence do not relate to any future event or representation as it disclosed that at the time of the representation, the Appellant knew that he had no trinkets to supply to the complainant. It referred to evidence of the complainant [PW2] on page 47 of the Record, and submitted that with what transpired between the Appellant and PW2, it is clear that the Appellant did not have any goods at the Wharf and he also knew he did not have any such goods; and that the said Particulars and the evidence do not relate to any future event as the two must go together to prove a charge.

Now, the key word here is “future which is a verb tense “denoting action that will take place at some time to come” Webster’s Comprehensive Dictionary. In the case of Anchora V. IGP (supra), (1958) 1 NSCC 83, the Charge read as follows

That you on 15/10/1956 — with intent to defraud, obtained from John Ukeren the sum of N33-8s-0d by falsely pretending that you would give the said sum — to the Senior Superintendent of Police, Warri, in order to influence him to enlist the

said John Ukeren into the Nigerian Police Force and thereby committed an offence punishable under Section 419 of the Criminal Code.

The Federal Supreme Court, per Abbott FJ, stated as follows-

It is obvious that the charge, alleging it does, a representation of the Appellant that he would do an act in the future, disclose no criminal offence at all, and the fact that the evidence adduced by the Prosecution supported, as indeed it did, the Charge before the Court, cannot cure the defect in the Charge. It is idle to speculate on what would have been the outcome had the Charge been amended to disclose an offence and the same evidence given.

InAnu v. IGP (supra), (1958) 1 NSCC 80, the charge read-

That you, on 28/7/1956 – with intent to defraud, obtained from Ofoyeju Rakpoloke the sum of N17 by falsely pretending that you would use the said sum – to secure employment for Willie Ofoyeju as a recruit in the Nigerian Police Force and thereby committed an offence punishable under Section 419 of the Criminal Code.

No objection was taken to the Charge and at conclusion of trial, the Senior Magistrate found that the said representation

proved related to the future and not to the past or present. He held that the Charge must fail yet convicted the Appellant for stealing.

The Appellant’s appeal to the High Court was dismissed.

He appealed to the Federal Supreme Court on the ground that the charge disclosed no offence known to law, therefore, his trial and conviction was a nullity. The Court held that the charge was defective in that the false pretence was a promise to the future, and not a representation as to a past or an existing fact.

In allowing the Appeal, Mbanefo, FJ, elucidated further thus –

There was no evidence that the Appellant did not pay the money to the Senior Police Officer, however, unlikely that might be. But assuming that there was such evidence, the conversion of N17 must have taken place at some time subsequent to the time it was obtained from by the Appellant. That is to say when the complainant asked for the return of his money, and the Appellant failed to return it. The Appellant, it seems from the evidence, received the money as the agent of the complainant and the subsequent conversion, if there was one, was a separate and distinct offence, which

could be and should have been the subject of a separate charge or a separate Count of the same indictment.

In this case, without going into evidence, which is unnecessary, as the Charge must speak for itself, it is clear that the two cases – Achonra’s Case and Anu’s Case, are easily distinguishable from this case, wherein the representation is as to existing fact.

In Achonra’s Case (supra), the Appellant obtained the said sum of money from the complainant to give the Superintendent of Police in order to get him enlisted in the Nigeria Police Force. Thus, the Charge alleged a representation of the Appellant that he would do an act in the future, which discloses no offence.

In Anu’s Case (supra), the Appellant obtained the money from the complainant to do a future act; to use same to secure employment for her son as a recruit in the Nigeria Police Force.

In this case, a close reading of the Particulars of Offence reveals that despite the words therein that he “will supply to her golden wristwatches and trinkets, the said COUNT TWO alleges a representation of the Appellant that he will supply the items to PW2 knowing fully well that

when he made the representation, he did not have the said “golden wristwatches and trinkets.

Section 1 (1) and (2) of the Decree creates the offence of obtaining property by false pretence. The offence is committed when any person, by false pretence and with intent to defraud, obtains any property, including money, from any other person.

In this case, notwithstanding Appellants hue and cry about “with intent to defraud” missing from the Particulars of Offence, the Appellant is alleged to have fraudulently obtained the sum of N399,000.00 from PW2 under a false pretence that he would supply her with the said jewelry that he knew he did not have; an existing fact, not a representation to do any act in the future.

In other words, the Appellant is alleged to have known that he did not have the “golden wristwatches and trinkets when he made the representation to PW2 that he would supply her with the said jewelry, and thereby fraudulently obtained the sum of N399,000.00 from PW2 under what is clearly false pretences. Obviously, the Particulars of Offence painted a clear picture of the allegation against the Appellant, without

the missing words.

The term “fraudulent misrepresentation or representation”, means “a false statement that is known to be false or is made recklessly – without knowing or caring whether it is true or false – and that is intended to induce a party to detrimentally rely on it” -see Black’s Law Dictionary, 9th Ed., wherein he added that-

A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts, or (b) does not have the confidence that he states or implies in the truth of his assertion, or (c) knows that he does not have the basis that he states or implies for the assertion.

But the Appellant insists that he was misled because the clause “with intent to defraud is an integral part of Section 1(1) of the said Decree, which is the substantive law creating the offence for which he was charged, therefore, where the intent clause is omitted from the Charge, as in this case, it renders the Charge incompetent and the entire proceedings a nullity. He argued that the fact that he was represented by counsel at the

time of his Plea and during the trial, does not mean he was not misled.

The word ‘mislead’ means “to direct wrongly; lead astray or into error – Webster’s Comprehensive Dictionary. In effect, the Appellant is saying that the fact that the said intent clause is missing from the Charge, he was directed wrongly or led astray, even as he was represented by his counsel throughout the trial.

It goes without saying that the fact that the Appellant was represented by counsel is not a mere trifle, as he has indicated. This is because, as Galinje, JCA (as he then was) observed in Adegboye V. Salawu (2013) LPELR-22140(CA), Counsel has –

An unflinching obligation to forcefully defend his clients case within the ambit of the law and the decorum with which the profession is known for. He should not acquiesce at unfair proceeding that is capable of doing harm to the case of his client. For that is the reason why lawyers are employed to handle matters in Court so as to excel where laymen would be unable to cope.

In this case, I am satisfied that Appellant was not misled since Prosecution Witnesses were vigorously cross-examined by his

Counsel and Appellant’s defence was clearly geared towards negativing the notion that he committed the offence as alleged in the Charge against him. This Issue is resolved against him.

Issue 3 is simply whether the Prosecution proved its case beyond reasonable doubt, as formulated by the Respondent. The Court of Appeal pointed out that the Appellant complained of two species of contradictions – the presence or absence of particular Prosecution Witnesses when the first N50.000.00 was given to him; and the alleged contradiction between PW2’s evidence and her previous Statements to the Police and/or the Police Investigation Report that were not tendered in evidence.

On the firsts specie of contradiction, the Court of Appeal held –

It is clear that even if there were such contradictions between the evidence of the Prosecution Witnesses, it could not be held to be material. This is because, the alleged contradiction did not effect or disturb the Prosecutions case in establishing that the Appellant in fact received the said N50,000.00 on the first day in question irrespective of who PW2 or PW3 actually handed over the money to the Appellant.

Secondly, the circumstances of the handing over or the giving of the first N50,000 to the Appellant did not affect the collection of N341,000.00 by the Appellant on the occasion which made the total collected by the Appellant to be N399,000.00. For a statement to be said to be contradiction, it must not only be the direct opposite of what was spoken or stated, it must also have affected the substance of the Prosecutions case. On a careful perusal of the printed record there was no material contradiction between the evidence of PW1, PW2, PW3 and PW4 which affected the substance of the case for the prosecution.

On the second specie of contradiction, it observed as follows-

It is noteworthy that the statement was neither shown to the complainant nor tendered in Court. In these instances, it is clear that an alleged contradiction, resulting from extra-judicial statement, not put to the Witness in his testimony in Court, goes to no issue. See Patrick Oforiete vs. The State (supra). In the instant case, contrary to the suggestion of the learned counsel for the Appellant, the learned trial judge carried out a comprehensive evaluation of

evidence of the Prosecution Witnesses and the Defence Witness from pages 95-107 of the printed record—

But the Appellant contends that there were serious and material contradictions in the evidence of the Prosecution Witnesses.

He set out their evidence, and commented thereon as follows:

– PW1, Mrs. Ijeoma Ochonma, is not a witness of truth because the same PW1, who said in her Statement to the Police that she did not know what discussion he had with her mother, made a “volte face or U-turn in her evidence in chief: that her Statement to the Police confirms that contrary to testimony of PW2, PW3 and PW4, PW1 did not know anything about her mothers allegation against him; therefore, the evidence of PW1 in Court should be completely discountenanced as it goes to no issue and a total fabrication.

– PW2 Mrs Justina Okeke, made her first Statement to the Police on 10/12/99, “immediately after the alleged incident on 8/12/98 when the incident was very fresh in her mind”, and it is clear therefrom that what transpired between two of them was a loan transaction, that he simply sought for a loan from PW2 to enable him clear

his goods at the Wharf and pay for the change of school of his sister, Miss Chinenye Ikpa, and he promised to pay on or before 8/12/98 and contrary to her evidence in Court, there was no mention of the gold wristwatches, trinkets or necklace or even name of Osuofia” in her Statement to the Police; that PW2’s admission under cross-examination that she made same is not only self-destructive but an admission against interest as it shows her entire testimony is a lie; that when it was put to her, PW2 said “I did not lie to the Court I did not give him any money as a loan. Rather I gave him money to supply the goods, which samples he showed to me”; and the trial Court noted at page 54 that – “This witness (PW2) agitated and looked confused and hesitated before answering this question, which confirm the lies PW2 told the Court; that it is unfortunate that the trial Court still failed to evaluate this evidence to his benefit: and that the failure has occasioned miscarriage of justice on him.

– PW1, PW2, PW3 and PW4 being a family coming to Court from the same roof, changed their stories. There was no mention of some of what PW2 said in her Statement of 10/12/98.

PW1 contradicted herself when she testified that she got to know the Appellant on 30/11/98 when he came to her house. PW2 stated that the discussions took place in her office when she bought him a coke, which contradicts her testimony that the meetings took place in her house in the presence of her family and one Osuofia; and PW3, PW2’s husband, testified that he received him on his first visit, while the other members of his family had a different account.

– PW3’s response under cross-examination is materially in conflict with evidence of PW2 that PW1 was not present when the money was allegedly given. PW3 said the first N50, 000 was counted by PW1 and he (PW4) was the person that handed the money over. PW4 (Patrick Onyebuchi Okeke) said his mother (PW2) gave the money to him; he recounted it and handed over to the Appellant.

From the testimonies, which contradict the Statement of 10/1288 made by PW2, where she said she brought the money from the government money in her custody, the crucial or vital question to ask is who brought the alleged N50, 000 and who gave it to him PW3 contradicted himself by claiming under cross-examination that it was his

wife (PW2), who had handed the money over to him. PW4 under cross-examination claimed that his father, his senior sister and himself, were present during the transaction but under cross-examination PW4 said that the money was counted by PW2, who give it to him to recount, as his father was sick at the time.

– On the alleged N341,000, which PW2 stated she gave him from government money in her custody, PW3 contradicted her by saying he sold his Peugeot cars and realised the sum of N341,000.00 which he paid to him, the Appellant. He submitted that the story is not only contradictory but totally incredible and unbelievable.

– The testimony of PW4 shows that contrary to the others’ testimony that there was no agreement of how much to be given before the final request was allegedly made. PW4 said his mother asked how much was needed and he [Appellant] allegedly said N400, 000, which is another twist to the whole story. Was the money given at the discretion of PW4 or was it based on how much she can raise Again, was the allegedly money actually raised, and who raised it

– PW2 and PW3 struggled to accept ownership of the money which both of them claims at each

circumstance that she or he brought.

The evidence of PW3 and PW4 shows that there was a serious and material contradiction on the source of the money and who handed it over to him. While PW3 said he gave PW2 the money. PW4 said PW2 took an overdraft from Ebenator Community Bank. PW5, Insp. John Omenazu, and PW6, Sgt. Emmanuel Ojuyenum gave conflicting testimonies as to when the complaint was made by PW2 and when he [Appellant] wrote his Statement. While PW5 said it was on 11/3/99 that the case was transferred from Orlu Police Division to State C.I.D Owerri and assigned to his section for investigation and that he obtained his Statement on 11/399, PW6 said it was on 24/11/99 while on duty at State C.I.D Owerri that a petition written by PW2 was referred to him for investigation.

‘The Court cannot pick or choose, which of the evidence of the two witnesses to believe. See Onubogu vs. the State (1974) 9 SC 1.

The Appellant further submitted that under cross-examination, PW5 admitted that PW2 made a Statement at Owerri that was not tendered in evidence by the Prosecution and was not made available to his counsel when he requested for it;

and that this amounts to withholding of material evidence in a criminal trial, which is not permissible – Section 167(d) of the Evidence Act, Ogbuanyinya & Ors V. Obi Okudo & Ors (1990) 7 SC (Pt. 1) 66, Anyanwu & Ors. V. Uzowuaka & Ors (2009) 13 NWLR (Pt. 1159) 445, High Grade Maritime Services Ltd. V. First Bank (1991) 1 NWLR (Pt. 167) 290, R. V. Iregbu (1938) 4 WACA 32.

He cited the following on burden and standard of proof – Anekwe v. State (1976) 9 -10 SC 252, Aiguoreghian & Anor V. State (2004) 3 NWLR (PT 860) 367, Ojo & Anor V. F.R.N (2008) 11 NWLR (PT 1099) 462 and argued that the evidence was raddled with material contradictions and inconsistencies, which makes it most unsafe to convict, and a Court cannot pick and choose which one to believe and which one not to believe.

Citing Archibong v. State (2006) 14 NWLR (Pt. 1000) 349, Audu V. INEC (2010) 13 NWLR (PT 1212) 456, Kalu V. State (1988) 4 NWLR (PT 90) 503, Okonji V. State (1987) 1 NWLR (PT. 52) 659, Musa V. State (2009) 15 NWLR (Pt. 1165) 467, he further submitted that where there are such contradictions on material fact and they are not explained by the Prosecution, a

trial Court must not be left to speculate or proffer explanation for the contradictions so as not to find itself in a position where it will pick and choose from the evidence of the Prosecution.

It is his contention that the contradictions were substantial and affected basic issues and the Court’s decision Onubogu V. State (1974) 9 SC 1, Nasamu V. State (1976) 6 SC 153, Enahoro V. Queen (1965) 1 All NLR 125, Ibe V. State (1992) 5 NWLR (Pt. 244) 642 and Ishola V . State (1978) 9- 10 SC 81.

He addressed presumption of innocence and the burden on the Prosecution to prove its case beyond reasonable doubt, citing Afolalu V. State (2010) 16 NWLR (pt. 1220) 554, Lado v. State (1999) 9 NWLR (Pt. 619) 389, Ogundiyan V. State (1991) 3 NWLR (Pt. 181) 519 SC, Alonge V. l.G.P. (1959) 4 FSC 203, Yongo V. C.O.P. (1992) SCN 113, The State V. Emine & Ors (1992) NWLR (PT. 256) 658, Alor V. State (1990) 6 NWLR (PT 155) 125 and Public Prosecutor V Yuvared (1970) A.C. 913, and submitted that both the trial Court and the lower Court were wrong and fell into serious error when they failed to resolve the above stated material contradictions and doubts in his

favour.

He also argued that the Court of Appeal relied on the case of Ebeinwe V. State (2011) 7 NWLR (Pt. 246) 402 at 413-414, which is not applicable to this case as the facts are different in that the contradictions in that case were minor, inconsequential and irrelevant and did not occasion a miscarriage of justice but in this case, the contradictions were substantial and occasioned a serious miscarriage of justice on him; that there is nothing on record to show that the trial Court adverted his mind to them, and it did not state the reasons for believing the Prosecution Witnesses in spite of the material contradictions or discrepancy.

Furthermore, that the trial Court’s conclusion as affirmed by the lower Court on what transpired between the Appellant, PW2 and her family, are speculative – Ahmed v. State (1999) 7 NWLR (Pt 612) 641; that a Court can refer to the file before it – Agbareh V. Mimra (2008) 2 NWLR (PT 1071) 378, Agbaisi V. Ebikorefe (1997) 4 NWLR (PT. 502) 630, Osafile V. Odi (No. 1) (1990) 3 NWLR (Pt. 137) 130, therefore, the fact that PW2’s Statement was not shown to her or tendered in Court does not mean the trial Court could not

make use of it since it was in its file and forms part of the proof of evidence; and that the lower Court was wrong to hold that the contradiction resulting from the said Statement goes to no issue simply because the said Statement was not put to the witness in his testimony in Court.

He also submitted that an Accused Person is entitled to any defence available to him whether or not he specifically raised it; and the Court has a duty to consider the evidence and give him the benefit of any defence available to him notwithstanding the fact that it was not raised by him – Gabriel v. State (1989) 5 NWLR (PT 122) 457, Williams V. State (1992) 8 NWLR (Pt 261) 515, Udofia V. State (1984) 12 SC. 139 and Edibo V. State (2007) 12 NWLR (PT. 1051) 306, that the case of Oforlete V. State (2000) 12 NWLR (Pt. 681) 415, relied upon by the Court of Appeal is not applicable as the facts are different; and that it is settled law that where the Court entertains even the slightest doubt, it should be resolved in favour of the Accused – Almu V. The State (2009) 10 NWLR (pt. 1148) 31 at 53 SC.

The Respondent’s position is that the Prosecution proved the ingredients of

obtaining by false pretence against the Appellant. It referred to the evidence of PW2 and PW3, and submitted that they show that he made a representation to PW2 that made her part with money believing the representation by the Appellant, and the Prosecution proved that the pretence was false when he made it and that he knew it to be false and did not believe it.

It further argued that there were no material contradictions in the evidence of Prosecution Witnesses; that PW1’s evidence in Court is not materially different from her Statement to the police as it does not affect the substance of the matter, and does not remove the fact that PW2 parted with the money for the supply of those items, which he knew he never had right from day one; and that the Statement is a summary of her case and not every detail needs be there, as she has a right to expatiate in Court.

As to PW2 being agitated, it submitted that the trial Court that made the observation is in a better position to evaluate same, but having evaluated the entire facts, it was not in error to have resolved the entire case in the Respondents favour; that PW2 did not lie and the fact

remains that Appellant defrauded her of the said sum when he knew that he did not have trinkets to sell.

As to who handed over the payment, it submitted that the alleged contradictions did not affect the prosecutions case that he received N50.000.00 on that day irrespective of who actually handed over the money to him, and did not affect the fact that he later collected N431,000 and N8,000; that is N399,000 in all

On the evidence of PW5 and PW6, it submitted that they were both in Court but they were not cross-examined as to any discrepancies between them to enable them explain the facts; and that the defence was deemed to have fully accepted the evidence of the Witnesses and makers of the said Statement.

As to the Statement that was not tendered, it argued that in the absence of evidence, the Court is not open to speculate on what is not before it as a Court considers only the evidence before it, not fiction or imagined evidence; and that the Court’s duty is to render unto every one according to his proven claim, because it is not a charitable institution – Stephen Idugboe & Sons Ltd. V. Anenih (2003) FWLR (PT 249) 1418 at

1437.

Under Issue 4, Respondent added that his complaints are not material to warrant disturbing the lower Courts’ Judgments; that what is material is that PW2 was defrauded and Appellant was the person who did that by causing her to part with the sum of N399, 000 when he knew he had no watches/trinkets to sell to her; that the alleged inconsistences are mere discrepancies, which are not material, since two pieces of evidence contradict each other when they are by themselves inconsistent, while a discrepancy may occur when a piece of evidence stops short of or contains some minor differences in their details – Idiok V. State (2006) AIl FWLR (Pt. 333) 1788; Ogoala v. State (1991) 2 NWLR (Pt. 175) 509, Omonga V. State (2006) All FWLR (PT 306) (sic), Ejibadero v. State (1978) 9-10 SC 81, Nwosisi V. State (1976) 6 SC 109 and Onubogu V. State (1974) 9 SC 1.

In resolving this issue, I must point out that the trial Court found that the Prosecution proved all the ingredients of the said offence of obtaining property by false pretence, which is that –

(a) A pretence was made by the Accused person;

(b) The pretence was false;

pretence to be false or did not believe it to be true.

(d) The pretence operated on the mind of the person from whom the property was obtained; and

(e) Some property must have been obtained as a result of the pretence.

It is clear that the Appellant is not quarreling with findings of the trial Court on the ingredients per se. His bone of contention is that the evidence on which it based its decision to convict him is riddled with serious and material contradictions, which makes nonsense of the case before it as presented by the prosecution.

The position of the law on the issue of contradictions in the evidence of witnesses that testify in Court is pretty well settled. It is not every minor contradiction that matters; for a trial Judge to disbelieve a witness, the contradiction in his evidence must be on a material point – Kalu v. State (1988) 3 NSCC 1. Thus, the law allows room for minor discrepancies in the evidence of witnesses, which may not be fatal to the prosecution’s case.

The word “contradiction” comes from two Latin words – contra meaning opposite, and dicere, which means to say. So, to contradict is to speak or affirm the

contrary, and a piece of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts; not necessarily when there are minor discrepancies in the details between them.

As Nnaemeka-Agu, JSC, said in Ogoala V. State (supra) – “contradiction between two pieces of evidence goes rather to the essentiality of something being or not being at the same time whereas minor discrepancies depend on the person’s astuteness and capacity for observing meticulous detail see Akpan v. State (1991) 3 NWLR (Pt. 182) 646 SC, Daggaya V. State (2006) 7 NWLR (Pt. 980) 637 SC and Ochemaje V State (2008) 15 NWLR (Pt. | 109) 57, where in Tobi, JSC, explained

Contradictions definitely arise in evidence of witnesses in Court. That explains the human nature and the humanity in witnesses. Although witnesses see and watch the same event, they may narrate it from different angles, in their individual peculiar focus, perspective or slant. This does not necessarily mean that the event they are narrating did not take place. It only means most of the time that the event took place, but what led to the event was given

different interpretations, arising from the senses of sight and mind dictated by their impressions and idiosyncrasies. That is why the law says that contradictions, which are not material or substantial will go to no issue. The main interest of the Court is that the witnesses are in Union or Unison as to the happeninig of the event but gave different versions in respect of the peripheral surrounding the event. In our con, the event is the murder of Alhaji Bameyi and where PW1 and PW2 were on the day— The number of persons who participated in the murder and the date and manner of the arrest of the Appellant, are merely peripheral.— What has the date of arrest of the Appellant have to do with the act of murder committed by the Appellant

In this case, I am tempted to ask and I will not resist – what has who handed the N50. 000.00 to the Appellant got to do with the offence with which he is charged What has the source of the money that he collected from PW2, which he insists was a loan, got to do with it How will knowing the source of money alter the equation in his favour or exonerate him from the allegation

These and many more unanswered

questions arising from the catalogue of contradictions/inconsistencies he enumerated, make it abundantly clear that the Court of Appeal was right that the alleged contradictions cannot be held to be material since they did not affect or disturb the Prosecution’s case that he did receive the said N50. 000, irrespective of who handed it to him.

Take another example, the Appellant pointed to an alleged contradiction in where they had the said discussion with PW2. In the said Statement she made to the Police. PW2 stated that –

On the 30/11/98, when I was going to the Zonal Education Board Orlu, the said I. K. [Appellant] saw me and reversed his Mercedes Benz car and approached me asking if I know him, I said No. He then introduced himself to me as having helped him in the Bank sometimes ago. I said I have forgotten. I told him I am just good to help but I dont recognize faces. He then said I.K. [Appellant] told me he had been looking for me after helping him in the bank, he later left for oversea. Now that he had seen me, he wants me to help him in changing school for the younger sister, Miss Chinenye Ikpa. I told him to come to the school, as I was

going out, him going to Mgbidi town. On that same 30/11/98, he came on arrival from Mgbidi town to the school compound where I lived, he saw my daughter who told him that I am not available but will soon come he said he I.K cannot wait and left. He came the next day in the office, he saw me, I bought him a bottle of coke as kola. It was then he narrated his stories of changing school for the sister. I promised helping no matter the problem. He then told me madam my main aim of looking for you, that I needed some money to enable him clear his goods at the Port Harcourt Wharf. That he had empty pocket to pay for the change of school. I told him as a civil servant our salaries are counted money that the money I had with me is Government money, he said I should give it to him: he must sale (sic) the goods before I will pay in the WAEC fees, and staff salaries that are involved. He said surely he must give me back the money in question on or before 8/12/98.

The Appellant submitted as follows at page 18 of his Brief-

From the above excerpts of the extra-judicial statement of PW2 it is crystal clear that what transpired between PW2 and the Appellant was a

loan transaction. The Appellant simply sought for a loan from the PW2 to enable him clear his goods at the wharf and pay for the changing of school for the younger sister, Miss Chinenye Ikpa. The Appellant promised to pay back the money on or before 8/12/98.

Pray, where is the “serious and material contradiction” there The Appellant himself corroborated the substance of her story- whether they discussed in her house or office, the Appellant initially told Pw2 that he wanted her to assist in changing his junior sisters school, and his sister’s name is as PW2 stated. The Appellant also admitted that he later asked her for money to clear goods at the wharf so as to pay for changing schools, and he promised to pay back the money on or before 8/12/98.

In other words, Appellant admitted the background facts; he took money from PW2 to clear his goods at the Wharf and the fact that PW2 did not mention what those goods were in the said Statement she made to the Police is neither here nor there. She specified what the goods were when she testified in Court. So, what has where they had this discussion got to do with it

In my view, the Appellant was

merely grasping at straws, and his litany of contradictions cannot assist him in any way.

As to his argument that the trial Court should have looked or referred to the Statement that was not tendered