Raymond Nwokedi V. The State (1977)

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G. IRIKEFE, J.S.C.

In this matter, the appellant was tried and convicted at the Chief Magistrate’s Court of the Njikoka Magisterial District holden at Amawbia-Awka on a charge which reads:”That you Raymond Nwokedi alias Theophilus Anazonwu on the 12th day of May, 1973, at Igwebuike Secondary School, Awka in the Njikoka Magisterial District, attempted to commit a felony to wit, to obtain with intent to defraud the sum of N160.00 from Michael Nweke by falsely pretending you were in position to give him June, 1973 West African School Certificate question papers and thereby committed an offence punishable under section 509 of the Criminal Code, Cap. 30 Vol. 2, Laws of Eastern Nigeria, 1963.”

At the trial, the appellant called no evidence, his counsel having stated that he was resting his case on the evidence adduced by the prosecution. The prosecution’s case depended in the main upon the testimony of P.W.5 (Michael Nweke). In view of the importance of this witness’s testimony we propose to carry a substantial part of it in full. This testimony given n 17th August, 1973 runs thus:”I am a student at Igwebuike Secondary School Awka. I am in Class V. I took my W.A.E.C. Examination last June. I know the accused. I am a boarder. On 4/5/73 I was in the school compound. On 4/5/73 the accused drove into the school compound at 3.30 p.m. and told me that his name was Theophilus Anazonwu. He came with a taxi No. ECE 9732 Toyota car. He asked me of the senior prefect. I told him that he was not around. I asked him to tell me the reason why he wanted the senior prefect. He told me he had a special message, for the Class V students of the Igwebuike Secondary School Awka. He said the message was from the W.A.E.C. Examination Council. I told him to deliver the message and that I could represent the senior prefect. The senior prefect was sleeping at that time. He told me that he was in the position to give us the question papers for May/June 1973 W.A.S.C. examination. He asked me to tell him if we had two classes of Class V. I told him that we had only one. He told me that his message should not be known by any member of the staff of the school. He told me that we should pay N160 since we had only one Class. He gave reasons why he wanted the sum of N160.00. He told me that N160.00 he charged was to cover the taxi fare. He also told me that the taxi was given him by W.A.E.C. Examination Council. In order to convince me he presented an identity card to me which bore the name Theophilus Anazonwu and his photograph. The identity card was stamped with W.A.E.C. stamp. He said that the card was signed by the Chairman of the

W.A.E.C. Examination Council. I asked him to tell me when he could come next because the money was not available. He promised to come on 11/5/73. He then left, On 11/5/73 we expected him, but could not see him. When he left on 4/5/73, I went and reported the incident to the Principal and the Vice-Principal. They told me something. On 11/5/73 the accused did not come. On 12/5/73 the accused met me. He told me to go because the papers were not yet available. He dressed in blue shirt upon trousers as he is now dressed in Court. He had his hand bag. I told him to wait so that I would go and get the money. I called the Vice-Principal. He came in his friend’s car with his friend. He ran away in his taxi. They chased him while the Vice-Principal and I went to the police station to report. . . I did not know the accused before 4/5/73. That was all the accused did.”

There was evidence that the accused was arrested after a brief pursuit and that on his person was found not question papers, but a W.A.E.C. “Instructions to Supervisors”.

The prosecution also called evidence to show that since the Civil War in Nigeria (1967-1970) question papers had been leaking (i.e. question papers had been falling into unauthorised hands before being properly released at examination centres) and that the appellant was not on the staff of the West African Examinations Council at either ENUGU or LAGOS, the two places where P. W.3 (Paul Charles Imolaome) had worked. In view of the further evidence from this witness that there were W .A.E. C. offices in other centres in Nigeria as well as in GHANA, SIERRA LEONE, GAMBIA and LIBERIA and that he did not know any of the staff at these other centres, it would be difficult to conclude that the prosecution had satisfactorily established that the appellant was at the material time not in the employ of W.A.E.C. This inference flows naturally from the case made by the prosecution as the appellant had declined to testify on oath, thus depriving the prosecution of an opportunity to cross-examine him.

Having been convicted as charged on the above facts, the appellant appealed unsuccessfully to the High Court and from that court to this court.

Although a large body of grounds of appeal were filed, Mr. Okafor, learned counsel representing the appellant in presenting his arguments before us made the following points:

(a) That the charge laid was at variance with the evidence tendered in proof of it.

(b) That there was no false pretence as charged on 12/5/73.

(c) That the prosecution on the evidence such as there was, failed to establish the falsity of the pretence.

On the first complaint, we note that the evidence produced at the hearing was that the appellant falsely represented himself to P.W.5 that he had been sent by W.A.E.C. to sell W.A.E.C. examination papers to Class V students of the school for N160. Although this evidence was accepted by the court of trial.

This was not the representation charged. The representation charged was merely that the appellant falsely pretended that he was in the position to provide P.W.5 with June, 1973 West African Certificate question papers and no more.

On the second complaint, it is plain that what happened on 12/5/73 before the appellant was apprehended as could be seen from the testimony of P.W.5 which we carried in full earlier on in this judgment was that he had come to inform P. W.5 that the promised question papers were not yet available. The record does not show that any other representation was made and it is equally significant that the appellant on that occasion had not asked for any money.

We think, however, that the third complaint is the most substantial. There was not an iota of evidence on the record to show that the prosecution had discharged, as it should have, as a matter of law, the burden of showing that the representation made by the appellant was false to his knowledge. Failure to supply this evidence is fatal to the case of the prosecution. See NG. v. The Queen A.C. p.173.

It is manifest from the testimony of P.W.3 that since the end of the war, all sorts of persons had come by W.A.E.C. examination question papers by means both fair and foul. It had thus not been established that the appellant could not and was not in the position to acquire such papers. In view also of what transpired on 12/5/73 between the appellant and P.W.5 we think that the conviction of the appellant as well as the affirmation of the said conviction by the High Court was based upon an erroneous view of the law.

Mr. Amaizu, learned counsel representing the respondent, conceded that the only evidence against the appellant was the testimony of P.W.5. We accordingly allowed the appeal, quashed the conviction and set aside the sentence. We also ordered that the appellant be discharged and acquitted. As the record shows that the fine imposed in lieu of sentence had been paid, we ordered that same to be refunded to the appellant.

SC.156/76