Onyia Ifeanyi V Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.S.C.
Facts contained in the Printed Record of this appeal reveal that the appellant, who was the accused at the Federal High Court, holden at Enugu (the trial Court), is a graduate of Sociology from Nnamdi Azikiwe University, Awka. He was alleged to have represented himself as a British businessman with the name, David Gary, a motor spare parts dealer, intending to have business partnership with one Pakawan Samneang, a woman from Thailand. According to the complainant/respondent, the accused/appellant was able to obtain the sum of $45,000.00 twice and another $60.000.00 from Pakawan Samneang upon false pretence and presentation of himself as a British businessman. He had operated through e-mail messages which he originated from his e-mail address – “[email protected]” to some unsuspecting persons whom he had given the impression that he was into motor spare parts business. His operation base was Malaysia.
There was a petition against the appellant to the Economic and Financial Crimes Commission (EFFC), Enugu Zonal Office which Swung into action and got
1
the appellant arrested when he visited Nigeria from Malaysia.
The appellant was later arraigned and prosecuted at the trial Court upon an amended eleven (11) count charge. The Prosecution called two witnesses and tendered some documents. The appellant testified for himself and called no other witness.
At the end of hearing, the learned trial judge found the appellant guilty. He convicted the appellant on all the eleven counts. The appellant was sentenced to seven (7) years imprisonment on each count with the sentences to run concurrently.
Appellant was aggrieved with the decision of the trial Court and he appealed to the Court of Appeal, Enugu Division.
After reviewing the judgment of the trial Court, submissions of learned counsel for the respective parties, the Court of Appeal (Court below) found the appeal lacking in merit and it dismissed same accordingly.
Further dissatisfied, the appellant filed his appeal to this Court. Parties in the appeal, soon thereafter, complied with Court Rules; filed and exchanged briefs of argument and distilled issues for determination.
Learned counsel for the appellant formulated the following three (3) issues for determination;
2
1) “Whether the learned justices of the Court below rightly affirmed the conviction and sentence of the appellant upon an 11 count charge of advance fee fraud and possession of scam documents when the said charge as laid did not disclose offences cognizable under the law (DISTILLED FROM GROUND ONE).
2) Whether the learned justices of the Court below rightly affirmed the conviction and sentence of the appellant on each of the eight (8) counts of possession of scam documents when there was no proof of receipt of the scam documents by those they were directed at (DISTILLED FROM GROUND TWO).
3) Whether the retracted confessional statement on the basis of which the appellant was convicted and sentenced by the trial Court and affirmed by the Court below was direct, positive and corroborated (DISTILLED FROM GROUND THREE).
Learned counsel for the respondent formulated three (3) issues as well:
1) “Whether the learned Justices of the Court below rightly affirmed the conviction and sentence of the appellant upon an eleven (11) count charge of advance fee fraud and possession of scam documents when the said charge as
3
laid did not disclose offences cognizable under the law (Distilled from Ground One)
2) Whether the learned Justices of the Court below rightly affirmed the conviction and sentence of the appellant on each of the eight (8) counts of possession of scam documents when there was no proof of receipt of the scam documents by those they were directed at (Distilled from Ground two).
3) Whether the retracted confessional statements on the basis of which the appellant was convicted and sentenced by the trial Court and affirmed by the Court below was direct, positive and corroborated (Distilled from Ground Three)
In his submission in this Court, learned counsel for the appellant stated on issue No.1 that the counts as constituted are unknown to law and the offence alleged under Section 6 of the Advance Fee Fraud and Other Related Offences Act 2006, (the Act herein) is not defined with prescribed penalty in utter derogation to Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), which insists that offences ought to be defined and penalty prescribed. Learned counsel set out the provision of Section 6 of the
4
Act and argued that the Section (i.e. Section 6) under which the appellant was tried and convicted has no punishment for its infringement which Section 36(12) of the Constitution enjoins in absence of defined penalty, no one shall be convicted. He faulted the approach of the Court below while treating the said Section and its calling in aid, Section 1(2) of the Act. Learned counsel argued further that the preferment of the 11 count charge was also in breach of the rule of drafting a count which the Court below downplayed as “inelegant” as the appellant was not misled. He cited the case of Asuquo v. The State (1967) ANLRP 32. Learned counsel tried to draw distinction between document containing false pretence” as employed in Section 6 of the Act and the phrase “Scam document used in the charge. He said that they are two different phrases. They mean different things. They are world apart and cannot be used interchangeably. He urged that this Court should hold that the Court below erred in law when it affirmed the conviction and sentence of the appellant based on the charge as laid and that same be set aside.
On issue No. 2 the learned counsel
5
for the appellant submitted that the learned justices of the Court below were not right when they affirmed the conviction and sentence of the appellant upon 8 counts of possession of scam documents when there was no proof of receipt of the scam documents on persons they were directed at. Learned counsel set out the provisions of Section 5(1) and 6 of the Act and submits that it is a material ingredient in the proof of case of possession of scam documents that those who the scam documents were directed at, did receive them and that the learned justices of the Court below did not consider the position stipulated by Sections 5(1) and 6 of the Act
Further, it is argued by the appellant that Nwankwo’s case (supra) relied on by the Court below is not on all fours with the instant appeal. Learned counsel for the appellant in his comparison stated that it was not necessary to call the victim, sister Mary Dominica to testify in Nwankwo’s case as she was the complainant who petitioned the police and whose petition was tendered in evidence. The complainant’s petition in Nwankwo’s case, he argued further, without more, was proof of receipt of scam document unlike
6
in the instant case, the victims or person(s) to whom the documents were directed did not petition the EFFC or had their petitions tendered in evidence. Neither were the complainants called as witnesses nor were evidence of their receipt of the scam document(s) tendered. The prosecution, he argued, failed to prove woefully, an ingredient constituting the offence charged. Learned counsel urged this Court to set aside the conviction and sentence of the appellant in respect of counts 4 – 11 of the amended charge.
Appellant’s issue No.3 is on the veracity of Exhibits A & B alleged confessional statements by the appellant which were said to be retracted by the appellant. Learned counsel for the appellant submitted that the said statements upon which the appellant was convicted and sentenced by the trial Court and affirmed by the Court below were not direct, positive and corroborated. The findings made by the Court below in support of the trial Court that there is corroborative evidence in Exhibits C and D is not borne out by the record of appeal. It was argued further that aside the requirement of corroboration of the retracted confessional
7
statements, the Court below ought to have gone further to test the veracity or otherwise of the confessional statement which it failed to do. Learned counsel cited and relied on the cases of State v. Isah (2012) 16 NWLR (Pt.1327) 613; Kabiru v. AG Ogun State (2009) 5 NWLR (Pt.1134) 209; Haruna v.AG Federation (2012) 9 NWLR (Pt.1306) 419.
In further submissions, the learned counsel for the appellant stated that at the time the alleged offence was said to have been committed i.e. in September, 2011, the appellant was not in Nigeria. It is obvious that there was no commission of the alleged offence by the appellant.
Learned counsel made reference to the (proof of evidence) of the 8 count charge filed on 22/6/12 (pp 3 – 4 of the record) as the said charge did not contain the allegation of obtaining from Pakawan Sammeng.
Learned counsel urged this Court to hold that it is unsafe to rely upon the confessional statement of the appellant to convict him and that the conviction and sentence be set aside.
Learned counsel for the respondent made his submissions on the three (3) issues formulated (reproduced earlier in this judgment) which are
8
identical with appellant’s issues for determination. In his issue (1) one, learned counsel for the respondent stated that the offences for which the appellant was tried and convicted bordered on offences of obtaining money under false pretence and being in possession of scam documents all contrary to Section 6 and punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act. 2006. Learned counsel set out the provisions of the above sections cited.
Learned counsel made reference to several Sections of the Act including Section 20 which defines “false pretence”, “document” 8(b) defines “attempt.” He submitted that the fact that the phrase “false pretence” was not employed in the drafting of the charge, the word “scam” can be accommodated in the phrase “false pretence” as all of them relate to dishonest way of making money. He urged that the rule of ejusdem generis should be employed to include the word “Scam”. He also referred to the case of FRN v lfegwu (2003) 15 NWLR (Pt. 842) 43 at 195 – 196 G C. Learned counsel for the respondent made further submission that the appellant pleaded to the charge when it was read to
9
him and participated in his defence. An objection to any defect in a charge can only be raised immediately after the charge is read over to an accused but before his plea is taken. He cited Section 167 of the Criminal Procedure Act. LFN 2004. Cap 80; Adio v. State (1986) 3 NWLR (Pt.31) 714; Amadi v. FRN (2008) 18 NWLR (Pt.119) 259. The appellant, it was further argued, has not shown how he was misled after the service of the charge to which he pleaded. Learned counsel for the respondent urged this Court to dismiss this appeal as the offence for which appellant was prosecuted is known to law.
Learned counsel for the respondent’s argument on issue two (2) is that the appellant misconceived the provision of Section 6 of the Act as the offence created in that Section is not a complete one but an inchoate one. Learned counsel set out the ingredients of the offence in Section 6 which the prosecution must prove to secure conviction. He referred to exhibit C series which contained false pretences, printed from the sent folder of appellant’s E-mail which he duly acknowledged in the exhibits. The said exhibits contained false pretence within the provision of
10
Section 6 of the Act constituting an offence of attempt as contemplated by Section 8 and punishable under Section 3(1) of the Act. Learned counsel referred to the case of Amadi v. FRN (supra) at p.281 B – C. In the appeal on hand, like in the case of Nwankwo v. FRN (2003) 4 NWLR (Pt. 809) 1 at page 323, the appellants were also charged for obtaining property by false pretence and attempt to obtain certain amount of money from one sister Mary Dominica. He argued further that by the provision of Sections 5 and 6 of the Act (which is in pari-materia to Section 5 of Decree No.13 of 1995), it is not mandatory to call as a witness the recipient of the scam or fraudulent letter in order to prove the offence of attempt. All the prosecution needs to prove is that the document containing false pretence was recorded by the person to whom it was directed. The said documents, in this case, were received and acted upon by the person to whom they were directed at. Learned counsel urged this Court to dismiss this appeal on this ground.
On issue (No.3) three, it is the submission of learned counsel for the respondent that exhibits C series and D are
11
independent evidence of exhibits A series and B in which the appellant corroborated the contents of exhibits C series and D by providing his E-mail address and password. Appellant made mention of a friend – David Gary from Nigeria. Learned counsel for the respondent submitted that aside from Exhibits A series and B, there are some evidence outside the said exhibits to corroborate the fact that it was not merely that a crime has been committed but that it was committed by the appellant. Learned counsel urged that this Court or an appellate Court for that matter, should not interfere with the concurrent findings by the trial Court and Court below. Amadi v. FRN (supra) p.283; Adimora v. Ajufo (1988) 3 NWLR (Pt.80) 1 and Echi v. Nnamani (2000) 8 NWLR (Pt. 667)1. He urged this Court to dismiss this appeal on this ground.
It is my intention to consider this appeal in line with the issues framed by the learned counsel for the appellant. Issue No.1 challenges the conviction and sentence of the appellant by the trial Court and affirmed by the Court below on the basis that all the (11) eleven count charge of advance fee fraud and possession of scam documents did not
12
disclose offences recognizable under the law. I think the first step, although tedious, is to take a look at the (11) count charge as framed against the appellant.
COUNT ONE
That you Onyia lfeanyi in September, 2011, Enugu within the judicial Division of the Federal High Court, of Nigeria with intent to defraud, obtained the sum of $45,000.00 (forty five thousand United State Dollars) from one Pakawan Samneang when you represented yourself as a British businessman and want her to partner with you in your business, which representation you knew to be false and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT TWO
That you Onyia lfeanyi in September, 2011, at Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, obtained the sum of $45,000.00 (forty five thousand United States Dollars) from one Pakawan Samneag when you represented yourself as a British businessman and want her to partner with you in your business, which representation you knew to be false and thereby committed
13
an offence contrary to Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT THREE
That you Onyia lfeanyi in September, 2011, at Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, obtained the sum of $60,000.00 (Sixty Thousand United States Dollars) from one Pakawan Samneang when you represented yourself as a British businessman and want her to partner with you in your business, which representation you knew to be false and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT FOUR
That you Onyia lfeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard, Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document, filled RE INFO FROM WALTER” dated November, 8th 2011 which was addressed to David Gary and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable
14
under Section 1(3) of the same Act.
COUNT FIVE
That you Onyia lfeanyi on or about 20th April 2012 at No. 16, Co-operative Boulevard Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document filed ‘RE INFO FROM WALTER’ dated November 8th, 2011 which was addressed to Ani Uchenna and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT SIX
That you Onyia lfeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document filed ‘RE INFO FROM WALTER’ dated November 8th, 2011 which was addressed to Ani Uchenna and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT SEVEN
That you Onyia lfeanyi on or about 20th
15
April, 2012 at No. 16, Co-operative Boulevard. Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document filed ‘RE INFO FROM WALTER” dated November 8th, 2011 which was addressed to Ani Uchenna and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT EIGHT
That you Onyia Ifeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document filed “RE INFO” dated November 8th, 2011 which was addressed to David Gary and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act. 2006 and punishable under Section 1(3) of the same Act.
COUNT NINE
That you Onyia Ifeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard. Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam
16
document filed ‘RE INFO FROM WALTER’ dated November 14th, 2011 which was addressed to David Gary and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT TEN
That you Onyia lfeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard, Trans- Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with intent to defraud, and in possession (e-mail) [email protected] a scam document filed RE INFO dated December, 6th,2011 which was addressed to David Gary and thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act 2006 and punishable under Section 1(3) of the same Act.
COUNT ELEVEN
That you Onyia Ifeanyi on or about 20th April, 2012 at No. 16, Co-operative Boulevard, Trans-Ekulu, Enugu within the judicial Division of the Federal High Court of Nigeria with Intent to defraud, and in possession (e-mail) [email protected] a scam document filed RE INFO dated November, 22nd, 2011 which was addressed to David Gary and
17
thereby committed an offence contrary to Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
All underlining for emphasis)
Thus, all the offences in the (11) eleven counts as above, with which the appellant was charged, tried, convicted and sentenced by the trial Court which was later affirmed by the Court below were created and punishable by the Advance Fee Fraud and Other Related Offences Act, 2006 (herein below simply referred to as “the Act”). This Act is an Act of the National Assembly of the Federal Republic of Nigeria. Section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) (“the Constitution” for short) provides, inter alia, as follows:
“The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof – with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to this Constitution.”
In Part II of the Second Schedule titled “Supplemental and Interpretation,” the National Assembly may make a
18
declaration by an Act of the National Assembly or by a Resolution passed by both the Houses of the National Assembly. References to any incidental and supplementary matters include references to, among other offences.
This is an Act which was legislated to prohibit and punish certain offences pertaining to advance fee fraud and other fraud related offences and to repeal other Acts related therewith. Indeed Section 21(1) of the Act repealed the Advance Fee Fraud and Other Fraud Related Offences Act No.13 of 1995, and the Advance Fee Fraud and Other Fraud Related Offences (Amendment) Act, 2005. The date of commencement of this Act was June, 2006. My lords, I think it is elementary, though beneficial to the doubting Thomases, to remind all about the supremacy of the Constitution as established by Section 1(1) of the said Constitution:
“This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
(Underlining for emphasis)
It is to be observed by all that all the offences contained in the eleven counts of the charge before the trial Court and the various
19
punishments were brought under Sections 6 and 1(3) of the Act.
Now, to begin with, Section 6 of the Act provides as follows:
“A person who is in possession of a document containing a false pretence which constitutes an offence under this Act commits an offence of (sic: or) an attempt to commit an offence under this Act if he knows or ought to know having regard to the circumstances of the case, that the document contains the false pretence.”
(Underlining for emphasis)
My lords, the interpretation section of an enactment is the most effective in revealing the intention, aim or purpose of the legislators which they assign to a particular word/phrase as may appear in the body of the legislation. Section 20 of the Act guides us to understand the interpretation given to “document” and “false pretence.
“document in this Act includes letter, maps, plans, drawings, photographs and also includes any matter expressed or described upon any substance by means of letter, figures or marks or by more than one of these means, intended to be used or which may be used for the purpose of recording that matter and further includes a document
20
transmitted through fax or telex machine or any other electronic or electrical device a telegram and a computer print out.
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.
There are findings by the learned trial judge to the effect that:
a) there is evidence supporting the allegation of obtaining $45,000.00 twice and $60,000.d0 totaling to $150,000.00 found in the appellants extra-judicial statements. Exhibit A series (page 229 of the Record of Appeal).
b) there are other corroborative facts showing the fraudulent activities of the appellant with his collaborators at Malaysia as evident in the printed out scam documents Exhibits C and D series which were duly acknowledged and endorsed by the appellant (page 230 the Record of Appeal).
c) in both his evidence and extra judicial statements, the appellant had maintained that he is a Nigerian not a British as claimed in the documents
21
sent to prospective victims. Thus, the representations were false both in substance and form (page 231 of the Record of Appeal).
d) As regards to the allegation of possession of scam or fraudulent documents, the appellant had admitted orally and in his statements that he gave out his E-mail and password through which Exhibits C and D series were printed out and a careful examination of these documents clearly shows that the contents are fraudulent and were sent to unsuspecting victims with intent to defraud. (page 231of the Record of Appeal)
e) Exhibit F confirmed that Caroline Kapambune Sianga was actually defrauded (page 231 Record of Appeal).
In affirming the trial Courts conviction and sentence, the Court below, after setting out the definition as contained in Sections 6, 1(2) and (3) of the Act and Section 36 of the Constitution, made alot of useful explanations. For instance, on the phrase “false pretence, the learned Justice of the Court of Appeal who write the read judgment, Yakubu, JCA, stated:
“It is a community reading of Sections 1(2); 6 and 20 of the Act that brings to the fore the essence of the offences
22
laid in counts 1 – 11 in the amended charge against the appellant. The catchword in each of the Section aforesaid is the phrase false pretence.
Thus, where a representation is made by an accused deliberately or recklessly, in word, in writing or by conduct which representation is known to the accused, the maker thereof, to be false and he does not believe in its truth but nevertheless armed with a document which contains the false pretence and representation and uses it to induce another person to confer some benefit to himself, the offence of obtaining property by false pretence is constituted.
On the counts (all the eleven counts of the charge) being unknown to law, the learned JCA, stated:
I tried in vain to fathom the merit in the submission of appellant’s learned counsel to the effect that all the counts 1 – 11 in the amended charge against the appellant are unknown to law. The offences are created or constituted in Sections 1(2) and 6 of the Act whilst the punishment for each of trial is stipulated at Section 1(3) of the Act. Thus, the constituent elements of the offences in counts 1-3 of the amended charge
23
such as making false pretences were indeed false; they were intended to deceive/defraud another person; they were intended to be acted upon by the unsuspecting victim and they were actually acted upon by Pakawan Samneang who parted with her $150,000.00 to the appellant, were clearly present.
I am firm and certainly of the considered opinion that counts 1 – 3 of the amended charge herein, are apt. They are as clear as crystal. They are known offences and the punishment for each of them is provided for under Section 1(3) of the Act.
With respect to counts 4 – 11 of amended charge, the main grouse of the appellants learned counsel against them is that the use of the phrase being in possession of ”Scam documents” is not an offence known to Section 6 of the Act which created the offence of being in possession of document containing false pretence. This according to him damnifies counts 4 -11 as they are an infringement of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The documents referred to throughout the eleven counts are ”scam documents and not documents containing false
24
pretence. The arguments of learned counsel for the appellant is that the phrase “document containing false pretence” employed in Section 6 of the Act is not a synonym to the phrase scam document used in the charge. They mean different things and are world apart. They cannot be used interchangeably. The employment of the phrase scam document in the charge, learned counsel for the appellant argued is not only inelegant but unconstitutional and unintended by law.
The Act has not defined the word “offence” but, ordinarily, it connotes on illegal act or a crime. Thus, in the realm of criminal law, an offence/offense, generally, is violation of law for which penalty is prescribed. It is an act clearly prohibited by the lawful authority of the State. The Criminal Code Act, Cap. C38, Laws of the Federation, 2004, defines an offence to be an act or omission which renders the person doing the act or making the omission liable to punishment under any Act or law. “False pretence” has been defined by the Act to mean:
“a representation, whether deliberate or reckless, made by word, in writing or by conduct of a matter of fact
25
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 word “scam” on the hand, has not been employed by the Act and remained undefined therein.”
However, the day – day English usage of the word suggests that it is a clever and dishonest plan for (making money (Oxford Advanced Learners Dictionary, 6th ed; page1048). In a wider connotation, it is a large – scale illegal treek, usually with the purpose of getting money from people or avoiding paying tax, (Collins Cobuild Learner’s Dictionary, Harper Collins Publishers Ltd; 1996 – Latest reprint, 2001, Omnia Books Ltd; Glasgow, Great Britain) page 977. Be that as it may, the word “Scam” has combined the elements of falsify, deceit with the aim of conferring some unjustified benefits (mainly financial) or avoiding some justified disadvantage, loss or punishment by or to the maker, who, from his commission or omission of the intended act. It is thus, my view, that the word “Scam” can conveniently be accommodated to express or substitute the phrase “false pretence.” The principle of interpretation in
26
EJUSDEM GENERIS Rules, relatively and effectively applies in this case. In the case of FRN v. lfegwu (2003) 15 NWLR (Pt.842) 113, (2003) 5 SC 252. The respondent in this case was one of six accused persons arraigned and tried before the Failed Banks Tribunal, Lagos.
The charge contained 10 counts. The Tribunal convicted the respondent on the two counts and sentenced him to various terms of fines and or imprisonment. On appeal, the Special Appeal Tribunal allowed the appeal and substituted the sentences. The decision of the Special Appeal Tribunal was final. The respondent, however, filed an originating summons before the Federal High Court, Lagos, under the Fundamental Rights of Protection. The sum total of the complaint was that the Failed Banks Tribunal and the Special Appeal Tribunal which heard the case acted in breach of the fundamental rights of the respondent guaranteed under Section 33 of the 1979 Constitution, then applicable, being without jurisdiction to try, convict and sentence him in respect of the counts laid against him. In other words, the respondent could not be made to suffer criminal penalties for acts which did not constitute
27
any offence at the time they were committed.
Issue No.6 placed for determination before that Court was:
”Whether the misuse of the word “fraudulently” in the description of the offence for which the respondent was convicted when the respondent was not deceived or misled by the description.”
This Court, per Uwaifo, JSC (Rtd.) held, among other things as follows:
”Besides, the use of the word “fraudulently” can, in my view, be accommodated under the ejusdem generis rule to stand in for the word “Otherwise” as used in Section 19(1) (a) of Decree No.18 of 1994. In effect, ejusdem generis (or sometimes noscitur a sociis) rule helps to confine the construction of general words within the genus of Special words which they follow in a statutory provision or in a document. See Fawehinmi v. Inspector General of Police (2002) S SC (pt.1) 63, (2002) 7 NWLR (Pt767) 606 at 683. It means that where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified. It is said to be a question of the assumed intention of the statute.” His Lordship, supported his
28
pronouncement with a New Zealand case of Cooney v. Covell (1901) 21 NZLR 106 at 108, where Williams J; stated
“There is a very well known rule of construction that if a general word follows a particular and specific word of the same nature as itself, it takes its meaning from that word and is presumed to be restricted to the same genus as that word. No doubt that rule is one which has to be followed with care, but if not to follow it leads to absurd results, then I am of opinion that it ought to be followed.”
Now, as the word “scam” can conveniently substitute the phrase “false pretence,” which was employed in the Act and the duo mean the same thing to me, resulting in dishonest and clever way of making money, and are interchangeable, I am of the firm view that the findings of the trial Court which were affirmed by the Court below are beyond any reproach.
These were the instances where the appellant was found by the trial Court to have:
a) represented himself as a British businessman wanting to have business partnership with one Pakawan Samneang as a result of which he obtained the sum of $45,000.00 twice and $60,000.00 from the same
29
Pakawan Samneang, knowing same representation to be false: both in substance and form;
b) falsely and fraudulently possessed scam documents which he admitted orally and in his statements that he gave out his e-mail passwords through which Exhibits C and D series were printed out and a careful examination of these documents clearly shows that the documents are fraudulent and were sent to unsuspecting victims with intent to defraud;
c) defrauded one Caroline Kapambwe Sianga.
My noble lordships, the appellant was charged, arraigned, tried, convicted and sentenced for several offences created by the Advance Fee Fraud and Other Related Offences Act, 2006. It is elementary to remind your lordships that an Act is any law made by the National Assembly and includes any law which takes effect under the provisions of the Constitution of the Federal Republic of Nigeria,1999 (as amended). The Act under consideration is an existing law. This is one of the situations in which if a Court of law when faced with what may appear to create a lacunae in a legislation that Court has to, of necessity, revert to the canon of interpretation of statutes. For
30
instance, under the ejusdem generis Rule, construction of general words within the genus of special words which they follow in a statutory provision or in a document is normally resorted to. In other words, where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, and that is said to be a question of assumed intention of the statutes see: Scales v Pickering (1828) 4 Bing; 448 at 452 – 453: Cooney v. Covell (1901) 21 NZLR 106 at 108; Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt.767) 606 at page 689. Therefore, I have no difficulty in accepting the submission of learned counsel for the respondent that the fact that the phrase “false pretence” was not employed in the drafting of the charge, the word ”Scam” can be accommodated in the phrase false pretence, or even substitute it as both false pretence and scam relate to dishonest way of making money. Thus, the employment of the word Scam in the charge instead of the phrase ”false pretence. does not, in my view, make the offence with which the
31
appellant was charged, unknown to law. The offence is known and cognizable by the law.
Further, the appellant understood the charge and pleaded to same. He participated fully in the trial which led to his conviction and sentence. lf the appellant did not understand the charge and the trial at the trial Court, he would have raised an objection at the earliest opportunity. See Section 167 of the Criminal Procedure Code Act, Laws of the Federation Cap. 80, 2004; Adio v. State (1986)3 NWLR (Pt.31)714; Amadi v FRN (2008) 18 NWLR (Pt.119) 259; FRN v. Adewunmi (2007) 10 NWLR (Pt.1042) 399. I hold that the offence for which the appellant was tried and sentenced is known and cognizable to law and that he was not in any way misled by the use of the word ”Scam” instead of false pretence” as used by the Act. I resolve this issue against the appellant and in favour of the respondent.
Appellant’s issue No.2 is on the possession of scam documents when there was no proof of receipt of same by those to whom they were directed. Learned counsel for the appellant was emphatic that the justices of the Court below were not right when they failed to consider
32
the issue of non-proof of the material ingredient in proof of possession of scam document as required by Section 5(1) of the Act. Permit me to set out the provision of Section 5(1) of the Act, my lords:
“Where a false pretence which constitutes an offence under the Act is contained in a document, it shall be sufficient in a charge of an attempt to commit an offence under the Act to prove the document was received by the person to whom the false pretence was directed.”
My first port of call is the trial Court. The learned trial judge made the following finding in relation to the issue under consideration:
“The defence has made an allusion that the failure to call as a witness the recipient of the scam documents is fetal (sic) to the prosecution’s case. It was held in Nwankwo v. FRN (2003) 4 NWLR (Pt.809) 1 at 34 that it is not mandatory to call as a witness the recipient of the scam or fraudulent letter in order to prove the offence of attempt to obtain property by false pretence. What is required is for the prosecution to prove that the letter or other document was received by the person to whom the false pretence was directed. In this case by the evidence of
33
PW2, the letter of investigation (sic) activities and the reply thereto conclusively showed that the fraudulent letters were indeed received and even acted upon.
As regards to the allegation of possession of scam or fraudulent document, the accused has admitted orally and in his statements, that he gave out his email and password through which Exhibits C and D series were printed and a careful examination of these documents clearly shows that the contents are fraudulent and were sent to unsuspecting victims with intent to defraud.
In affirming the above findings, the Court below, held inter alia:
“The pieces of evidence by PW1 and PW2 against the appellant remain unimpeached, to the effect that the false pretences of the appellant consists of the operation of false e-mail messages to his unsuspecting victims, the appellant knew that the said e-mail messages were false; the appellant wanted the addresses or representees to believe his false e-mail messages and to act upon them.
I am satisfied that the appellants e-mail was accessed by the PW2 who used the password sunshine which was provided by the
34
appellant. The evidence of PW2 that the sent folder of the appellants e-mail [email protected] was accessed by PW2 and it is from the said “sent” folder that the recipients of the appellants e-mail messages vide Exhibit D, were known. The law is settled that the recipients of false e-mail messages need not be called as witnesses by the prosecution. Nwankwo v. Federal Republic Nigeria (2003) 4 NWLR (Pt.809) 1.
My lords, l think without being unnecessarily verbose, there is need to set out the ingredients of proof of the offence of attempt to obtain property by false pretence as provided by Section 6 of the Act, which in my view, applies mutatis mutandis to possession of Scam documents as the case is in this appeal. Section 1 of the Act makes the following provisions:
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 in any other country, for himself or any other person;
b) induces any other person, in Nigeria or in any other country,
35
to deliver to any person, 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 on 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.
(See; Advance Fee Fraud and Other Related Offences Act, as contained in Cap A6 Laws of the Federation of Nigeria, Vol. 1 – updated to the 31st day of December, 2010).
The prosecution has a duty to prove that:
1) there was a document
2) the document contains false pretence (scam)
3) the document was in possession of the accused person;
4) the accused person knows or had knowledge that the said document contains false pretence (scam) and
5) the document was received by the person to whom it is directed.
See: Alake v. The State (1991) 7 NWLR (Pt.705)567; Amadi v. FRN (2008) 8 NWLR (Pt. 1119)
36
259 at pages 277 – 278.
All these were found by the trial Court to have been proved by the prosecution and affirmed by the Court below.
Proof of the above ingredients equally relate to issue No.2, i.e. proof of possession of scam documents and receipt of same by persons to whom they were directed at. An attempt to commit the offence under the Act was already established by the two lower Courts. The challenge, however, as thrown by the appellant is whether it is necessary on the prosecution to call as a witness or witnesses the recipient(s) of the scam or fraudulent letter in order to prove the offence created by the Act.
From the records of appeal, it is clear that the trial Court made some findings that other corroborative facts, in addition to the confessional statement of the appellant show the fraudulent activities of the appellant with his collaborators at Malaysia as evident in the printed out scam documents Exhibits C and D series which were duly acknowledged and endorsed by the appellant. The trial Court re-stated the position of the law that it is not mandatory as held in Nwankwo v. FRN (2003) 4 NWLR (Pt.809) 1 at 34, to call
37
as a witness the recipient of the scam or fraudulent letter in order to prove the offence of attempt to obtain property by false pretence and that what is required is for the prosecution to prove that the letter or other document was received by the person to whom the false pretence was directed at. The learned trial judge relied on the evidence of PW2, that the letter of investigation of activities of the appellant and the reply thereto, conclusively showed that the fraudulent letters were indeed received and acted upon. It is the finding of the trial Court that in both his evidence and extra judicial statements, the appellant had maintained that he was a Nigerian not a British as claimed in the documents sent to prospective victims. Such representations were found to be false both in substance and in form.
The trial Court found on the possession of scam or fraudulent documents that the appellant had admitted orally and in his statements that he gave out his e-mail and passwords through which Exhibits C and D series were printed out and careful examination of the documents clearly showed that the contents thereof were fraudulent and sent to
38
unsuspecting victims with intent to defraud. The trial Court found also that Exh. F confirmed that one Caroline Kapambwe Sianga was actually defrauded. Other false documents were equally printed from the “sent” folder of the e-mail of the appellant from his laptop addressed to one “David Gary.”
My lords, the evidence of Pw2, one Jidda Mohammed an operative of the EFCC, is quite revealing on this issue. I find it pertinent to give a summarised form of his evidence. After the administering of cautionary words on the appellant at the beginning of the interview, the appellant volunteered a statement:
“After the statement we open(ed) the laptop and goggled yahoo and entered his e-mail address which he gave me that is [email protected] and entered his password as given to me by him that is sunshine. I went into sent messages and clicked. I picked randomly some of the sent messages and I am shocked on the contents of the messages sent. I printed the documents in his presence which he acknowledged authorship and possession. In view of that I sent mail warning prospective victims that if they have release(sic) any mail soliciting for funds or promises of
39
gift from either the Accused or David Gary, Jane-bhatt. Some of the victims have responded to the mail. One Analyn Gansane from Philippians and Maria Delounds also from Philiphians.
The 2 victims attempts were made to them but on realizing that it was a scan(scam), they did not pay any money. The 3rd person one Caroline Sianga from Zambia was a victim who was induced to pay 870 USA Dollars through Western Union. We have written to Western Union and they have confirmed that 870 US Dollars was paid by the victim. We also wrote a letter to Cooperate Affairs Commission to confirm whether or not GLO Express Service is a registered Company and response has been received confirming that GLO Express Service was not so registered. In conclusion, investigation has revealed that it is an organised Crime headed by the Accused who orchestrated all the information sent to the victims by using proxies.
Most of the documents printed from the Accused’s computer were all sent by him to his proxies to induce the victims. Also the Accused travelled to Malaysia and coming back to Nigeria he was arrested and all the other members of the team are still in Malaysia.
40
At the time we looked into the Computer (laptop) was in good condition and was the same instrument he used in perpetrating the offence. The Accused wrote a mail to David and is entitled RE: lnfo’ and the document has a list of prospective victims mostly ladies and each of the victim has his name, telephone number, e-mail address and home address. To that document shewuga wrote to David Gary indicating purported tracking number of goods to the victims. In another mail entitled RE: info from Walter the Accused wrote to one Ani Uchenna and a name of a company called GLO Express Services purported to be a courier and also gave a website www.gloservsexpress as the e-mail address of a courier service that has never existed. These are the ones I can remember, I can identify the statement of the Accused of 20/4/12 with my hand writing. This is the statement.”
Thus, no one is left in doubt that all these documents containing false pretence (scam) were actually received by the persons to whom they were directed at. In such a situation all the prosecution is required to prove under Section 5 of the Act is that such documents containing false pretence (scam)
41
were received by the said persons. The provision of Section 6 of the Act caps it by providing that a person who is in possession of a document which he knows to be containing a false pretence must be taken to have attempted to commit the offence of false pretence.
Further, Section 1 of the Act provides in clear terms:
1) “Notwithstanding anything contained in any other enactment law, any person who by any false pretence and with intent 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,to deliver to any Person, 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 them or on 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.”
42
Therefore, all the findings made by the trial Court in relation to the fraudulent activities of the appellant and as affirmed by the Court below are to my mind, a justification to the application of the provisions of the Act including the punitive Section. There is no window for the appellant to escape. I resolve issue two against the appellant and in favour of the respondent.
Appellant’s issue No.3 is whether the retracted confessional statement by the appellant was direct, positive and corroborated.
On the 4th day of March, 2013, the prosecution sought to tender appellant’s statement in evidence. Mr. Tagbo lke, who appeared for the (defence) appellant, objected on the ground that it was involuntarily made. A trial within trial was conducted and at the end, the learned trial judge, Shuaibu, J, found that the prosecution proved that the statement being objected by the (defence) appellant was voluntarily made and it was admitted and marked as Exh. B. In evaluating the evidence placed before him, the learned trial judge found as follows:
“Aside from (sic) the confessional statement, there are other corroborative facts showing
43
the fraudulent activities of the Accused with his collaborators at Malaysia as evident in the printed out scam documents Exhibits C and D series which were duly acknowledged and endorsed by the Accused person.
Thus, the confessional statement of the Accused is direct and positive and same are sufficiently corroborated by facts which fortified the statements.”
Expatiating on appellant’s retracted confessional statement, the Court below held:
“For our purpose here, the requirement for corroboration is not a requirement of any statute, but a rule of practice set by common law. It is indeed, a rule of prudence that before a conviction is grounded on a retracted confessional statement, some bit of other evidence outside the confessional statement, be found by the trial judge, in order to ground a conviction.I am of the considered opinion and on the same page with the learned trial judge that Exhibits C and D series provided the additional evidence against the appellant and they clearly supported the fact that he positively and directly made the confessional statements in Exhibit A and B series. Undeniably Exhibit C particularly was discovered as
44
a material fact by the PW2 against the appellant who endorsed it and so it was rightly admitted into evidence against him. I am therefore of the considered and firm opinion that the appellant was rightly convicted by the learned trial judge on the formers confessional statement.”
My lords, it has been an established practice that an accused person(defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial Court. Omoju v. FRN (2008)2 SCNJ 197; Kasa v.The State (2008)2 SCNJ, 375. However, where the accused person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement doest not IPSO FACTO render it inadmissible in evidence. See R. v. Itule (1961) All NLR 462; R. v. Sapale & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p.431; Bature v. The State (1994)
45
1 NWLR (Pt.320) 267; Alarape v. The State (2001) 5 NWLR (Pt.205) 79. Thus, a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial Court should not, however, act on the confession without first testing the truth thereof.
See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v. The State (1976) 6 SC 167; Obosi v. The State (1965) NMLR 119; R. v. Omokaru (1941) 7 WACA 146. But so long as the Court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra); Yesufu v. The State (supra). The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
- Whether there is anything outside the confession
46
to show that it is true,
- Whether the statement is corroborated, no matter how slight.
- Whether the facts contained therein, so far as can be tested, are true.
- Whether the accused person had the opportunity of committing the offence.
- Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
- Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this Court over a long period of time in a number of cases. See: lkpasa v. Attorney General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248) 439 at 460.
In the appeal on hand, the learned trial judge tested the veracity of the appellant’s statement before admitting same in evidence. The Court below (as seen earlier) was quite satisfied that the confessional statement was fully corroborated by a legion of other evidence outside the confession. This is what amounts to corroboration. Exhibits C and D series, for instance, are independent evidence of Exhibits A and B series. In Exhibits A and B
47
series, the appellant corroborated the contents of Exhibits C and D series by providing his E-mail address and password. He also mentioned that David Gary was his friend from Nigeria. Thus, when the confessional statement of the appellant are considered side by side with the evidence of the prosecution witness, some degree of consistency on the facts are indicated. I resolve issue 3 in favour of the respondent against the appellant.
In conclusion, I find no merit in this appeal. It is hereby dismissed by me. I affirm the concurrent decisions of both the trial Court and the Court below.
SC.247/2015
