Ofoneme Enukora V. Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Federal High Court sitting at Awka delivered on 13th May 2015 convicting and sentencing the appellant in respect of charge No. FHC/AWK/14C/2015. The appellant was prosecuted for the offence of obtaining money by false pretences. In addition to the seven years imprisonment without an option of fine, the trial Court ordered the appellant to refund the sum of four and a half million naira (N4, 500,000.00k) he falsely obtained to his victim. The facts on which the appeal hinges are briefly narrated at once.
The appellant and one other person were charged for conspiracy and obtaining the sum of N4,500,000.00k by false pretences contrary to Section 8 (A) and (1) A of the Advance Fee fraud and Other Related Offences Act 2006 punishable under Section 1 (3) of the same statute. The appellant was convicted on the 2nd count only.
The prosecutor’s case is that DW5, the 2nd accused at the trial Court, approached PW4, the complainant, informing him that the appellant had a plot for sale at a price of four million five hundred
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naira. Desirous of purchasing the piece of land, PW4 instructed PW1, his personal assistant, to pay for the same on establishing the genuineness of title to and being satisfied that the land was free from any encumbrances. On being assured by DW5, PW4 instructed PW1 to pay the agreed purchase price of the sum of four million five hundred thousand naira to the appellant and a purchase agreement was subsequently executed.
PW4 moved unto the acquired land intending to commence construction thereon. His workmen were however chased away by the family of one Mr. Onuorah who had died in 1996 whose family asserted ownership of the land. Mr. Onuorah’s wife claimed she had inherited the land from her husband on the latters demise. All efforts by PW4 to get the appellant refund his money having failed, he petitioned the EFCC. The appellant and DW5 were then arrested and charged jointly for conspiracy and obtaining by false pretences.
Whereas DW5 was discharged and acquitted for both offences, the appellant on the other hand was convicted on the 2nd count for obtaining by false pretences and sentenced to seven years imprisonment without option
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of fine. Appellant was further ordered to refund the four and a half million naira he obtained from PW4.
Aggrieved, the appellant filed his notice of appeal against the trial Court’s judgment on 26th May 2015 to the Court of Appeal. The appeal was found unmeritorious and dismissed by the Court, hereinafter referred to as the lower Court. He has further appealed to this Court vide a notice dated the 25th but filed on the 27th of February, 2017 containing two grounds. Under the first ground of appeal, the appellant challenges the jurisdiction of the trial Court while under the 2nd ground he asserts that his conviction and sentence by the trial Court which the lower Court affirmed is not proved beyond reasonable doubt.
In keeping with the rules of this Court, parties have filed and exchanged briefs of argument which, on being identified at the hearing of the appeal, they adopted and relied upon as their arguments for and against the appeal.
The two issues the appellant distilled at paragraph 2 page 2 of his brief settled by his counsel Tochukwu Maduka Esq., read:-
“(i) Whether the trial Court had the jurisdiction to entertain the
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charge (s) against the appellant (Ground 1).
(ii) Whether the Court below was right in holding that the prosecution proved the ingredients of the charge in count 2 beyond reasonable doubt.”
The respondent at paragraph 3, page 6 of its brief coded appellant’s 2nd issue as its first and appellant first issue as its 2nd issue as arising for the determination of the appeal. The issues distilled by the appellant shall be resolved in the determination of the appeal firstly because he is the party aggrieved by the decision appealed against and most importantly, the determination whether or not the trial Court has jurisdiction to try and convict the appellant, upon which decision the lower Court’s affirmation rests, is overriding. It is settled that the issue of jurisdiction is fundamental as it touches on the competence of the Court. Jurisdiction remains a threshold issue. Being the lifewire of any determination by the Court, it should be considered and determined first before anything else since no matter how well considered the Court’s decision is, it will come to naught once the Court lacks the competence to try and determine the issue before it. In
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the case at hand, the lower Court’s judgment appealed against would come to nothing once the trial Court which decision the former affirmed is shown to have lacked the competence to try and determine the charge against the appellant. As it has always been, you can only add something unto something. See Madukolu V. Nkemdilim (1962) 1 ALL NLR 587, Skenconsult V. Ukey (1981) 11 SC 6 and AG Lagos State V. Dosunmu (1989) 3 NWLR (Pt III) 552.
On the 1st issue, learned appellant’s counsel contends that the law allows him to raise the issue of the trial Court’s competence for the first time at this Court. He relies on a tremendous number of cases that includes Obikoya V. The Registrar of Companies & Official Receiver of Pool House GRP (1975) 4 SC (reprint) 23 and Oni V. Cadbury Nigeria Plc (2016) 9 NWLR (Pt 1516) 80.
The appellant, argues learned counsel is convicted by the Federal High Court at Awka under Section 1 (1) (b) of the Advance Fee Fraud and Other Fraud Related Offences Act and sentenced under Section 1 (3) of the same Act for obtaining money by false pretences. Appellant, learned counsel further submits, it alleged to
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have falsely sold a piece of land which he knew he did not own. Neither the transaction nor the parties thereto, it is contended, fall within the purview of Section 251 (1) of the 1999 Constitution to confer jurisdiction on the Federal High Court. The jurisdiction to try the appellant, by virtue of Section 272 of the 1999 Constitution, it is submitted, lies in the High Court of Anambra State as against the Federal High Court. Not being a cause that has arisen from any of the items listed under Section 251 (1), the trial, conviction and sentence of the appellant by the trial Court, submits learned counsel, are all in vain. Relying onEze V. Federal Republic of Nigeria (1987) 1 NWLR (Pt 51) 505 and Mandara V. Attorney General of the Federation (1989) ALL NLR 219, learned counsel urges that the issue be resolved in appellant’s favour and his trial, conviction and sentence by the trial Court that is lacking of the necessary jurisdiction be set aside.
On the 2nd issue, it is argued that the law requires the respondent to prove the charge against the appellant beyond reasonable doubt. The ingredients of the offence for which the appellant is convicted in count 2 of the
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charge, it is further submitted, has not been established by respondent. None of the five witnesses called by the respondent, learned counsel argues, proved the fact that the appellant had the intention of defrauding the complainant. On the other hand, it is further contended, the appellant by himself and the witnesses he called clearly established that he owned the land he sold to the complainant which evidence was neither challenged nor controverted. Most surprisingly, the lower Court at page 251 of the record, submits learned appellant’s counsel, fell into the same error as did the trial Court that the appellant had made some misrepresentation to the PW1 and PW4. A conviction, submits learned counsel, cannot be founded on unproved facts. Relying on Kim v. State (1992) 4 NWLR (Pt 233) 17, Igabele V. State (2006) 6 NWLR (Pt 975) 100, Nweke v. State (2001) 4 NWLR (Pt 704) 588, ljuaka V. Commissioner of Police (1976) 6 SC 99 and Onwudiwe V. FRN (2006) 10 NWLR (Pt 988) 382, learned appellant’s counsel further submits that the decision of the lower Court that does not arise from the evidence on record having occasioned miscarriage of justice be set-aside on the appeal being allowed.
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Responding under their 2nd issue, learned respondent’s counsel contends that the charge or information before the court vis-a-vis the law by virtue of which the accused stands trial determines the jurisdiction of the Court where same is challenged. Indeed, it is submitted, the law is settled that the jurisdiction of a Court is statutorily conferred. The appellant, learned respondent’s counsel submits, is tried and convicted under Section 1(1) (b) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 and punished under Section 1(3) of the same Act. Section 14 of the Statute, it is further submitted, confers jurisdiction on the trial Court to try and convict the appellant. lt is not the law, learned counsel contends, that the character of the evidence led against an accused person determines whether or not the Court by which an accused is tried or convicted has the requisite jurisdiction.
Once the criminal elements of the offence the accused stands charged for are contained in the information the Court will exercise the jurisdiction conferred on it by the law. The trial Court, argues learned respondent’s
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counsel, rightly refused to bother itself with the contractual relationship between the appellant and the complainant. Rather, it is submitted, the Court correctly fixed its decision on the fact that at the time of the transaction the appellant pretended that he owned the land and that same was not encumbered. These are facts well within the charge, the appellant is convicted as provided for by the statue that confers jurisdiction on the trial Court. The Court, contends learned respondent’s counsel, rightly assumed jurisdiction. Relying on Hon. Gabriel Yinusa Olofu & 3 Ors v. Michael Adejo Itodo & 5 Ors (2010) 12 SC (pt 1) 165, Abas v. COP (1998) 12 NWLR (Pt 577) 308 and Onwudiwe V. FRN (2006) 10 NWLR (pt 988) 382 at 425, learned counsel submits that the lower Court is equally right to have affirmed the trial Court’s judgment. He prays that the issue be resolved against the appellant.
Under respondent’s 1st issue, it is contended that all the elements of the offence under Section 1(1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 have been established by the respondent beyond reasonable doubt. The appellant
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failed to successfully controvert the evidence led by the prosecution witnesses that he had received the sum of 4.5 million naira from the PW4 fraudulently either through cross examination or evidence proffered on his behalf. Having received the money with the intention of transferring the plot he knows does not belong to him the appellant, it is contended, has brought himself within the offence he is convicted for. On the authority inter-alia of Gbadamosi & Ors V. Akinloye & Ors (2013) LPELR-20937 (SC) Reptico S.A. Geneva V. Afri Bank Nig Plc (2013) LPELR-20662 (SC), State V. Babangida John (2013) 12 NWLR (Pt 1368) 337 and Dibie V. The State (2007) 9 NWLR (Pt 1038) 30, given the evidence on record, learned respondent’s counsel concludes, appellant’s guilt has been proved beyond reasonable doubt. He urges that appellant’s 2nd issue be resolved against him too and that the unmeritorious appeal be dismissed.
The two issues this appeal raises have long been settled by this Court.
On the first issue, both counsel agree and they are indeed right that jurisdiction of a Court is statutorily conferred be the statute the Constitution or a lesser legislation.
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Where vehemently canvassed as does the appellant herein, a Court’s jurisdiction is determinable in the light of what is set out in the enabling law vis-a-vis the charge for which the appellant has been tried and convicted by the trial Court. Thus where the facts on which the charge the appellant is tried and convicted for lie within the jurisdiction conferred on the Court by the enabling law of the Court, learned respondent’s counsel would be right, has properly assumed jurisdiction.
Where however the offence for which the appellant is convicted is outside the jurisdiction conferred on the trial court by the enabling law, learned appellant’s counsel would be particularly right that the trial court being bereft of the necessary jurisdiction would have proceeded in vain. See Onwudiwe v. FRN (2006) 10 NWLR (Pt 988) 982 at 425 and Charles Egbirika V. The State (2014) l SCM 36 at 54.
Learned appellant’s counsel has argued that the criminal jurisdiction of the trial Court is as exhaustively provided for by Section 251 of the 1999 Constitution (as amended) and that the offence for which the appellant is convicted having not been provided for under the
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Section, the trial Court has wrongly assumed jurisdiction.
Not surprisingly, learned respondent’s counsel contends to the contrary. He submits and rightly too, that the jurisdiction conferred on the trial Court by Section 251 of the 1999 Constitution (as amended) is not exhaustive since the Section admits of appropriate situations where the legislature may confer on the Court additional jurisdiction to be exercised exclusively or concurrently with other Courts of record. In the exercise of its powers, the legislature, further submits learned respondent’s counsel has enacted the Advance Fee Fraud and Other Fraud Related Offences Act 2005 and conferred the trial Court with jurisdiction to try the appellant. The lower Court’s affirmation of the trial Court’s legitimate assumption of jurisdiction, it is further contended, cannot be faulted. Learned respondent counsel’s submissions are unassailable.
It is indeed the decision of this Court that the trial Court, where conferred with such additional jurisdiction by the legislature, notwithstanding the provision of Section 251(1) (a)-(s) of the 1999 Constitution (as amended), may exercise same either
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exclusively or concurrently with other Courts of record as the case may be. Put differently, quite apart from the jurisdiction vested in the trial Court by Section251 (1)(a)-(s) of the Constitution (as amended), the Court enjoys such additional jurisdiction as is conferred on it by the National Assembly which for the purpose of the case at hand enacted in Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act thus:-
“14 The Federal High Court or the High Court of the Federal Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act
Having been conferred by the foregoing section such jurisdiction in addition to the jurisdiction it enjoys under Section 251(1) (a) – (s), learned respondent counsel’s insistence that the trial Court’s assumption of jurisdiction is proper does prevail. The trial Court’s judgment is, therefore, not a nullity as posited learned appellant’s counsel. See Senator Dahiru Bako Gassol V. Alhaji Abubakar Umar Tutare & Ors (2013) LPELR 20232 (SC), General Mohammed A. Garba (RTD) V. Mustapha Sani Mohammed & Ors (2016) LPELR-40612 (SC).
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The first issue in the appeal is accordingly resolved against the appellant.
The 2nd issue in the appeal touches on the evaluation of evidence carried out by the trial Court as affirmed by the Court below. Learned appellant’s counsel argues that the judgment of the trial Court which the lower Court affirmed is not founded on the evidence on record. Learned respondent’s counsel posits otherwise.
It is well settled that the evaluation of evidence and ascription of probative value to same is primarily the function of the trial Court. See Mogaji V. Odofin (1973) NSCC 275 at 277 (Pt 265) 260-278, Alake V. State (1992) 9 NWLR and Nkebisi & Anor V. State (2010) LPELR-2046 (SC). The lower Court and indeed this Court, both sitting in their appellate capacity, would only interfere with the trial Court’s findings of fact if the findings are perverse. See Akpan V. Bob (2010) 17 NWLR (Pt 1223) 421 at 479 and James V. INEC & Ors LPELR-24494 (SC).
In the instant case where the two Courts below are concurrent in their findings, this Court is very hesitant to interfere unless their findings are shown to be
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manifestly perversed.It is only where the appellant has established clear errors in law or fact which have occasioned miscarriage of justice that this Court intervenes to reverse the concurrent findings of fact of the two Courts. See Ogundiyan V. The State (1991) LPELR-2333 (SC), Iyaro v. The State (1988) 1 NWLR (Pt 69) 256 and Ukpabi V. State (2004) LPELR-3346(SC).
If indeed the respondent has not proved any of the ingredients of the offence for which the appellant is convicted by both Courts below, learned appellant’s counsel would be correct in his contention that the offence has not been proved beyond reasonable doubt and conviction thereon must fail.
See Bakare V. The State (1987) 3 SC 1 at 32 and Afolabi V. State (2010) 6-7 MJSC 187.
The appellant is charged and convicted under Section 1 (1) (b) of the Advance Fee Fraud and Other Related Offences Act 2006 for obtaining the sum of 4.5 million naira by false pretenses. The Section 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
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other country for himself or any other person;
(b) Induces any other person in Nigeria or in any other country to deliver to any 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 the 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 any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.
(3). A person who commits an offence under this Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term not more than twenty years and not less than seven years without the option of fine.”
By Section 20 of the Act, “false pretence means any 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 the person making it knows to be false or does not believe to be true.
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In the case at hand, there is evidence on record: that the appellant had offered through DW5 a plot of land for sale to PW4, his victim, for the sum of (N4,500,000.00k) four million five hundred thousand naira; that the appellant had collected the purchase price from PW1 whom PW4 instructed to pay the former on ensuring that the appellant is the owner of the land and that the land is not encumbered; that the land, contrary to what the appellant represented to PW1 and PW4, belong to PW2’s deceased husband from whom the latter inherited and continued to cultivate until 2007 when she realized that someone had trespassed on the land; that as at 2008 when the appellant offered the land to PW4 for sale he knew that he does not own the land and that the land was encumbered. It is on account of these facts that the trial Court found the appellant guilty as charged.
In affirming the trial Court’s findings leading to the conviction and sentence of the appellant for the offence of obtaining by false pretences, the lower Court at page 252 of the record of appeal inter-alia held as follows:-
“No doubt the criminal intent of the Appellant was
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manifested by his sale of the land to an innocent third party for value immediately the land dispute became persistent and serious. He wanted to get out of the problem by shifting it on an innocent purchaser. He refused to return the purchase price and only offered to do so after he was convicted. From the evidence on record, he knew that he had passed on to PW4 questionable title.”
The Court concluded at page 253 of the record of appeal as follows:-
“Once all the ingredients of an offence have been proved by the prosecution to the satisfaction of the Court, the charge is said to have been proved beyond reasonable doubt. I am convinced that the charge before the trial Court was proved beyond reasonable doubt, the prosecution having proved the required ingredients as enumerated above.”
The foregoing are the findings of the lower Court, the appellant asserts constitute erroneous affirmation of the trial Court’s judgment. They cannot be. The lower Court could not have arrived at a decision contrary to that of the trial Court.
The trial Court’s decision that emanated from the evidence of parties which evidence the Court, having
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had the advantage of seeing,listening to and observing the witnesses in the course of their testimony, faultlessly evaluated, must endure. Appellant’s failure to establish that these concurrent findings are perverse renders his appeal unmeritorious. I so hold, dismiss the appeal and further affirm the judgment of the trial Court convicting and sentencing the appellant as charged.
SC.217/2017
