Stanley Odua (Alias Duru Idika) V. The Federal Republic of Nigeria (2002)
LawGlobal-Hub Lead Judgment Report
CHUKWUMA-ENEH, J.C.A.
The appellant in this matter, was found guilty on three counts of a-four count charge by the Miscellaneous Offences Tribunal Zone 1, holden at Lagos. Against the said decision delivered on 23/3/99, the appellant has on 16/10/2000, filed a notice of appeal containing three grounds of appeal. From the three grounds of appeal, three issues have been identified by the appellant, and they are as per his brief of argument, filed in this matter as follows:
“1. Whether the trial Judge was right to have convicted the appellant on the 2nd count of the charge, when there was no evidence in proof of same contrary to the provisions of section 3 of the Advance Fee Fraud and Other Fraud Related Offences Decree No.13, 1995.
- Whether in the circumstances of this case, the testimony of PW2, exhibits 1-10 and photocopies of exhibits 65, 66 and 67, being documents not certified as true copies in compliance with the provisions of the Evidence Act, 1990, the conviction of the appellant on the 3rd count charge can be sustained if the documents are held inadmissible.
- Whether the conviction of the appellant can be sustained wherein the trial Judge held that the appellant had in his possession about one million letters, when same was not proved beyond reasonable doubt as required by section 138 of the Evidence Act.”
The respondent filed a brief of argument and also formulated three issues for determination as follows:
“1. Whether the prosecution had proved its case beyond reasonable doubt that the appellant attempted to obtain from Mr. F.N. Fausing the sum of $10,000.00 by false pretence.
- Whether there was sufficient evidence adduced by the prosecutor at the trial to support the conviction and sentence the appellant on count two of the charge.
- Whether the prosecution had proved its case as required by law that the appellant with intent to defraud knowingly had in his possession about one million letters containing false pretences.”
The facts of the matter are simple and in this regard the parties are in substantial agreement. One Dr. Idika, by fax, opened communication with one Mr. F.N. Fausing in Denmark for purposes of transferring the sum of $36,561.00 from the NNPC account in Nigeria to Denmark on commission. Mr. Fausing reported the matter to the Nigerian Embassy in Stockholm, Sweden, and was asked to play along with the appellant in the deal. Dr. Idika requested Mr. Fausing for $10,000.00 as gratification for Central Bank officials in Nigeria, so as to facilitate the transfer to be remitted to him at No. 25 Eti-Osa Way, Dolphin Estate, Lagos by the DHL Office, Isolo. Having notified the Nigerian Embassy in Denmark, as well as the Special Fraud Unit of the Nigerian Police Force, of these developments, a parcel purportedly containing the sum of $10,000 was despatched as directed by Dr. Idika. Surveillance was mounted at the DHL office, Isolo, by the police. The appellant came for the parcel and claimed it for Dr. Idika. He was apprehended there and then, with one Clifford Ovywurah, who drove him to the place. An identity card and a driver’s licence, bearing the name of Dr. Idika, recovered on him were collected. The appellant later took the police to his residence, at Block 13, Flat 7, Dolphin Estate, Lagos. On a search conducted in the flat, the police collected some letters addressed to people outside Nigeria. Entries of the items recovered were itemised on the search warrant, which was signed by the police and the appellant. Two other persons met at the said premises/residence were also arrested. The appellant and Clifford Ovywurah were later arraigned before the aforesaid Tribunal on a four-count charge as follows:
“COUNT ONE:
That you, Stanley Odua alias Duru Idika and Ovywurah, on or about the 15th October, 1996, at Dolphin Estate, Ikoyi, Lagos, in the Lagos Zone of the Miscellaneous Offences Tribunal, conspired to obtain the sum of Ten thousand U.S. Dollars($10,000.00) from Mr. F.N. Fausing by false pretence and thereby, committed an offence contrary to section 8(a) and punishable under section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995.
COUNT TWO:
That you, Stanley Odua alias Duru Idika and Ovywurah, on or about the 10th October, 1996, at Dolphin Estate, Ikoyi, Lagos, in the Lagos Zone of the Miscellaneous Offences Tribunal, being the occupier or concerned with the management of Block 13, Flat 7, Dolphin Estate, Ikoyi, Lagos, knowingly permitted the said house to be used in preparing, faking and storing letters containing false pretences addressed to people outside Nigeria and thereby, committed an offence punishable under section 3 of the Advance Fee Fraud and other Fraud Related Offences Decree No. 13 of 1995.
COUNT THREE:
That you, Stanley Odua alias Duru Idika and Clifford Ovywurah, on or about the 10th October, 1996, at Dolphin Estate, Ikoyi, Lagos Zone of the Miscellaneous Offences Tribunal, with the intention to defraud attempted to obtain from Mr. F.N. Fausing of Nosgesfack Denmark, the sum of Ten Thousand U.S. Dollars ($10,000) on the false pretence that it was demanded by the Central Bank of Nigeria, to enable them transfer the sum of $36,561.00 from NNPC account, to the F.N. Fausing Nosgesfack and thereby committed an offence contrary to section 8(b) and punishable under section 3 of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995.
COUNT FOUR:
That you, Stanley Odua alias Dum Idika and Clifford Ovywurah on or about the 10th October, 1996, at Block 13, Flat 7, Dolphin Estate, Ikoyi – Lagos, in the Lagos Zone of Miscellaneous Offences Tribunal, with intent to defraud knowingly had in your possession about one million letters, containing false pretences and thereby, committed an offence contrary to section 6 and punishable under section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995.”
The Tribunal found the appellant guilty on the 2nd, 3rd and 4th counts of the charge and acquitted and discharged him on count one. The 2nd accused was acquitted and discharged on all the four counts. It is against the said decision that the appellant has appealed to this court. In addition to the appellant’s brief, a reply brief has also been filed by the appellant.
On the first issue, the appellant contended the prosecution’s failure to link him with Block 13, Flat 7, Dolphin Estate, Ikoyi, Lagos, either as a place of business or residence. He distanced himself from Tony Link (Nig.) Ltd, and from the materials and exhibits relating faxing and storing of scam letters found in perpetrating false pretences. He challenged the finding that he was the occupier of the premises and recalled that in exhibits 68 and 69, Charles Eze and Chuka Ilombu, met in the premises, denied knowing him. On contradictions in the prosecutions case as reflected on exhibit 15, which also described the flat as the premises of Tony Link Nig. Ltd., he referred to Onubogu v. State (1974) 9 SC 1 at 20 and Ibeh v. State (1997) 1 NWLR (Pt.484) 632 at 635 and submitted it was material.
Next, the appellant raised the issue of sustainability of the decision of the court below, when exhibits 1-10 (photocopies) and exhibits 66 and 67, also photocopies of exhibits 1-10, were legally inadmissible evidence being secondary evidence, whether or not objected to at the Tribunal. And also as no proper foundation was laid for their admission nor was Mr. Fausing, called to identify the documents as his; consequently, the evidence should remain excluded. See Oladele v. The State (1991) 1 NWLR (Pt.170) 708 at 712. Okereke v. The State (1998) 3 NWLR (Pt.540) 75. Regarding exhibits A-A4 and exhibits B to B4 he submitted, were affected by the same virus as exhibits 1-10 being photocopies.
On the third issue, the appellant contended that for the prosecution to succeed on the charge, it had to show conclusively that the scam letters were one million, and in the possession of the appellant as at 10/10/96 and that the letters contained false pretence, as what was put in evidence by the prosecution were 5 bags full of scam letters, thus, leaving it to the court to speculate as to the precise number. Also, that the use of the premises for storing, faxing scam letters were left to speculation. In conclusion, the appellant maintained that the decision was perverse and unsupportable by the evidence led by the prosecution and urged the court to allow the appeal.
On the first issue, the respondent relied on section 73 of the Evidence Act on the implication of documents judicially noticed and section 5 of the Advance Fee Fraud and Other Related Offences Decree No. 13 of 1995, as well as the appellant’s confessional statement, exhibit 43, to submit that exhibits 1-10 (photo-copies) and exhibits 66 and 67 was properly admitted in evidence. See Edamine v. State (1996) 3 NWLR (Pt. 438) 530 paragraphs F to G. The respondent observed that exhibit 63 – the confessional statement was admitted unchallenged and was rightly given legal effect. See Peter v. The State (1993) 12 NWLR (Pt.531) 1 at 22 paragraphs.
The question to ask under the second issue, according to the respondent, was whether the appellant was the occupier or was concerned in the management of Block 13, Flat 7, Dolphin Estate, Lagos, as it was the appellant, who took the PW1 and PW2 there, and a search was conducted as per exhibit 15 and further incriminating materials, including scam letters recovered. The appellant endorsed the search warrant – exhibit 15 showing that the scam letters were so recovered. The respondent submitted that the appellant was the occupier of the premises even though by exhibits 68 and 69 made by the two persons met in the premises and who let in the PW1 and PW2 denied knowing the appellant and exhibit 15 linked Tony Link (Nig.) Ltd, to the premises as the subscriber to the telephone.
On the controversy surrounding, not proving the one million scam letters i.e. exhibits 16-60 containing false pretences, the respondent remarked that they were not objected to at their tendering as one million and even moreso as it was not made an issue. Further, that the scam letters were acknowledged by exhibit 15 as being in the appellant’s possession. See: Waziri v. State (1997) 3 NWLR (Pt.496) 689 at 718 paragraph.
The appellant in the reply brief, dwelt on sections 74 and 79 of the Evidence Act to show that exhibits 1-10 could not be judicially noticed and also being secondary evidence need to be proved as required by section 97(1) otherwise they were inadmissible. See: Agagu v. Dawodu (1990) 7 NWLR (Pt.160) 56 at 66-67. And furthermore that, the respondent misconstrued the words “other documents” used in section 5(1) of the Decree No. 13 of 1995.
On a close study of the issues formulated, I think I have to be guided by the appellant’s issues as formulated. They are more aptly adapted to resolving the controversies in the appeal. Besides, the said issues have embraced the respondent’s issues as formulated.
One of the cardinal principles of criminal adjudication, is that burden of proof on the prosecution to prove its case beyond reasonable doubt does not shift. Though there are exceptions, there is no cause to expatiate on them here as the instant matter does not fall into that category. The question to answer, is whether the appellant was the occupier or was concerned with the management of the said premises. The premises in issue being block 13, Flat 7, Dolphin Estate, Lagos. The appellant apart from repudiating the claim by the prosecution that he took the PW1 and PW2 to the premises also denied living or carrying on business thereat. The court below was however, categorical that the appellant was at the time of his arrest, the occupier of Block 13, Flat 7, Dolphin Estate, Lagos. In this appeal, the appellant has challenged the finding. It behoves to me to examine the issue. Section 3 of the Advance Fee Fraud and Other Fraud Related Offences Decree No. 13 of 1995, under which the offence to count one was premised stated thus:
“A person, who being the occupier or is concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose, which constitute an offence under this Decree is guilty of an offence…”
The unambiguous intendment of the foregoing provision clearly contemplates (1) any person, who is the occupier of the premises and, (2) any person, who manages the premises.
The Decree has thereby, laid some emphasis on the words “occupier” and “premises.” And it seems to me that these words have to be further examined in con of the said provision and the Act itself for their proper application in this matter. “Occupier” has its ordinary dictionary meaning, as a person living in a building, whereas, “premises” means land and building owned by someone.
On the other hand, a person managing any premises, would include one managing or taking care or doing business in the premises.
The bottom-line in all the foregoing cases, being that where the premises is knowingly being used for purposes prohibited under section 3 of the Decree, that is, by promoting offences of false pretences, then the occupier or the person managing the premises come within the ambit of the Law and is liable to be prosecuted. I must mention that the occupier or the person managing the premises, need not himself be the person directly engaged in the actual despatching of letters of false pretences as the case in this matter. This is contemplated in section 5 of the Decree No. 13 of 1995. The Decree it would appear in sections 3 and 5 of the same has launched a-two-pronged attack on the use of premises and against persons facilitating fraudulent letters.
That said, the prosecution’s case as well as that of defence has to be examined, against the foregoing backgrounds. The main thrust of the prosecution’s case is that the appellant took the PW1 and PW2 to the premises at Block 13, Flat 7, Dolphin Estate, Lagos. And that by exhibit 15 a search of premises was conducted and exhibits 16-60 were the incriminating items recovered. And that the appellant endorsed exhibit 15 to that effect. The appellant countered by saying that there was no basis for the finding. I think that in the con of the above definition given to “occupier” and the reflection given to a person concerned with the management of premises, the prosecution fell short of the onus on it as it was required to go further to show that the appellant irrespective of his being, the person who despatched the letters of false pretence to Mr. Fausing in Denmark, was also the occupier of Block 13, Flat 7, Dolphin Estate, Lagos. See: Sections 3 & 5 of the Decree. In this regard, it would be necessary to show that he either lived there, i.e., the premises as the owner or whatever or managed, used or conducted his nefarious business in that premises. Those areas of the question were left to speculation. It was, however, in evidence that one Tony Link (Nig.) Ltd. was the owner of the premises. The relationship between this company and the appellant was not explored. Nor was the silence on it explained and excused. I must observe that in the spirit of the Decree the occupier of the premises was person aimed at, that is, under section 3 of the Decree and he could also be the person who caused the receipt of letters of false pretences under section 5 of the Decree. It is pertinent to ask if the prosecution linked the appellant with the said premises in any way. My answer is definitely in the negative. It is evident from exhibit 15 that apart from the appellant, other two persons, that is, Mr. Eze and Mr. Ilombu also endorsed exhibit 15. The prosecution failed to explain the reasons behind the endorsements on exhibit 15 by the other two persons met in the premises. Were the appellant, the two persons met in the flat along with Tony Link (Nig.) Ltd., co-owners or living in the premises as occupiers at the same time or operating the same business there. In the statements made by the appellant he clearly stated what he was and his address in Benin, and where he used to stay in Lagos whenever he was in Lagos. As the police did not investigate these facts the prosecution offered no evidence on them. This is a shoddy job by the police. And no court would want to be part of the guessing game, the prosecution has set forth. Even more worrisome is want of any attempt to link the appellant with any of the items recovered as per exhibit 15 in the premises, to justify the charge that he was in possession of them. None of the items of property recovered was shown to be referrable to the appellant by name. Even the telephone which the appellant acknowledged in exhibit 63 his confessional statement he used in making contacts was not by evidence shown to be one of those in the premises. These are vital lacunae in the prosecution’s case. From the above scenario it becomes difficult to link the appellant with the possession of the one million scam letters the subject matter of issue number three and said to have been recovered at the premises. I must however, confess that I find the argument by the appellant, that the prosecution did not prove the one million scam letters rather disconcerting and without basis. Not only that the charge raised in that respect said “about one million” (which is permissible in drafting charges) it was never an issue at the tribunal and exhibits 16-60 were not challenged when they were tendered. From the above reasons, this court is therefore, bound to interfere with the findings of the Tribunal, in these respects as the findings encompassed under issues numbers one and three are definitely perverse and have shown that the Tribunal improperly evaluated the evidence at the trial. See Adeyeri II v. Atanda (1995) 5 NWLR (Pt.397) 512; Silli v. Mosoka (1997) 1 NWLR (Pt.479) 98. Finally, I resolve the first and third issues in the appellant’s favour.
Coming to the 2nd issue, the question to answer revolves on sustaining the conviction on exhibits 1-10 (photocopies and exhibits 65 66 and 67 as they were inadmissible documentary evidence. On record exhibits 1-10 represent the latters by fax, sent by the appellant to Mr. Fausing. There can be no disputing the fact that exhibits 1-10 were photocopies of fax messages and that as the law stands today, they are no better than secondary evidence in contrast to primary evidence and it would offend against best evidence rule to admit secondary evidence. See Anyaebosi v. R.T. Briscoe (Nig.) Ltd. (1987) C 3 NWLR (Pt.59) 84. In other words, exhibits 1-10 being photocopies are inadmissible in a criminal trial without laying proper foundation. See section 96 of the Evidence Act, 1990, for tendering photocopies. This recognises the distinction between primary and secondary evidence. The appellant has not disputed that no foundation was laid before exhibits 1-10 were tendered before the Tribunal. Rather, the respondent relied on section 73 of the Evidence Act to urge that the exhibits be judicially noticed. But they cannot be judicially noticed not being covered by section 74 of the Evidence Act. I am inclined therefore, to hold that the Tribunal erred to have relied on exhibits 1-10 as legal evidence to reach the conclusion on the appellant guilt – This court is left with no other option than to expunge exhibits 1-14 from the record. And I so order.
In this situation, it becomes difficult to satisfy the second limb of section 5 of the Decree, that is, “to prove that the letter or other document was received by the person to whom the false pretence was directed.” Ordinarily, once the second limb of section 5 of the Decree is established, the offence of an attempt is constituted under the Decree. The rejection of exhibits 1-10 has to rock exhibits 65, 66 and 67 to their foundations particularly as exhibits 66 and 67, are the photo-copies of exhibits 1-10 and exhibit 65 is the report of the hand-writing expert on the disputed documents exhibits 66 and 67 (photo-copies ).
The appellant made a confessional statement and its legal effect has been challenged by the appellant.
Before giving legal effect to a confessional statement, the law has enjoined the trial court to carry out certain tests, which have been expounded and set forth in a number of cases including Kopa v. State (1971) 1 All NLR 150. In Re Osakwe (1994) 2 NWLR (Pt.326) 273; In Bature v. State (1994) 1 NWLR (Pt.320) 267 at 283-284 the Supreme Court restated the test as follows:
“For a confession to be upheld, it should be tested as to its truth by examining it along other evidence to determine whether:
(a) There is anything outside it to show that it is true., (b) It is corroborated., (c) The facts stated in it are true in so far as can be tested., (d) The accused’s confession is possible., (e) The confession is consistent with other facts, which have been ascertained and proved.
The respondent identified certain pieces of evidence, outside the confessional statement to corroborate it and to show that it was true. In this respect, the respondent referred to exhibits 11 and 12, i.e., the identity card and driver’s licence and also exhibit 16 – the parcel signed for and collected by the appellant at the DHL, Office at Isolo. Also relied upon were exhibits 65, 66 and 67, from handwriting expert on disputed documents made from exhibits 1-10. I think this line of argument would come to nought in the absence of any proof, that Mr. Fausing got any letter of false pretences from the appellant. I made this observation in view of my finding on exhibits 1-10.
Having ruled that exhibits 1-10 ought not to have been admitted as legal evidence it has completely knocked the bottom off the prosecution’s case. I however, concede that under the section by which the appellant was charged, that to constitute the offence of “an attempt” it must be proved that the letter or other document was received by the person to whom the false pretences was directed. Any thing short of that the charge will not stick. That is to say the charge will collapse. Again, having raised strong question marks over exhibit 15 – the search warrant had distanced the appellant by way of reasoning above from the possession of the scam letters recovered at the premises and further shown that he could not have come within the definition of “occupier” or a person concerned with the management of the said premises, exhibit 63 has no leg on which to stand. There are no material facts outside to it in support of its veracity. That being the case, it was therefore, wrong for the Tribunal to have relied on exhibit 63 without more in convicting the appellant on count 3 of the charge particularly. In the circumstances, it (exhibit 63) would be most unreliable evidence on which to anchore the guilt of the appellant in this matter. So that the second issue is definitely resolved in favour of the appellant.
In the result, there is merit in the appeal and it should be allowed. I allow it. The judgment of the Miscellaneous Offences Tribunal Zone 1, holden at Lagos, is hereby, set aside, including the conviction and sentence contained therein. In its place, the appellant is hereby, discharged and acquitted on all the counts of the charge.
Other Citations: (2002)LCN/1078(CA)
