CORAM

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JOSEPH EYO EKANEM

JUSTICE CHIDI NWAOMA UMA

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PARTIES

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ABDULKADIR NTIEM APPELLANTS

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FEDERAL REPUBLIC OF NIGERIA RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

APPEAL, COURT, CRIMINAL LAW AND PROCEDURE, WORDS AND PHRASES
SUMMARY OF FACTS
The Appellant herein as the Accused person before the Federal High Court was arraigned on 29th March 2011 on a 5 count amended charge for offences bothering on: obtaining money by false pretenses, contrary to section 1(1) (a) of the Advance Fee Fraud Act and Section 108 of the Criminal Code laws of the Federation 2004 and impersonating a Public Officer contrary to section 108 (2) of the Criminal Code Cap C38 Laws of the Federation of Nigeria 2004. The Respondent called 3 witnesses (PW1 – PW3) in proof, and tendered 10 Exhibits and thereafter closed its case, while the Appellant testified for himself and did not tender any exhibit nor call any other witness. The trial court convicted the Appellant on all the 5 counts and sentenced him to seven years and six months imprisonment respectively, to run concurrently. Upon an application by the Prosecution, the convict was further ordered to restitute Mark Anthony Ugochukwu (a victim of the crime), the sum of Four Million, Five Hundred Thousand Naira (N4, 500, 000.000). Dissatisfied with the decision, the Appellant appealed to this court contending that restitution cannot be ordered in respect of cash where same has gone into circulation but in respect of stolen property or property procured from proceeds of stolen money.

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HELD

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Appeal Dismissed

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ISSUES

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Whether the Learned Trial Judge was right in ordering restitution in cash against the Appellant in the light of Rex vs. Akinloye (1931) 10 NLR Pg. 98. Whether from the totality of evidence adduced the prosecution proved the offense of obtaining money by false pretense against the accused beyond reasonable doubt.

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RATIONES DECIDENDI

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ORDER OF RESTITUTION – HOW CAN AN ORDER OF RESTITUTION BE ENFORCED?

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“Section 11 of the Advanced Fee Fraud Act provides as follows;
“(1) In addition to any penalty prescribed under this Act, the High Court shall order a person convicted of an offence under this Act to make restitution to the victim of the false pretence or fraud by directing that person –
(a) Where the property involved is money, to pay to the victim an amount equivalent to the loss sustained by the victim
(2) An order of restitution may be enforced by the victim or by the prosecutor on behalf of the victim in the same manner as a judgment in a civil action.”
The restitution, order made by the trial court pursuant to this section of the law is clearly not without basis, even by admission of learned counsel to the appellant, whose only grouse appears to be that the appellant did not have that kind of money kept or invested to pay the respondent”.

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AWARD OF RESTITUTION – WHEN CAN A COURT AWARD RESTITUTION?

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“The law empowers the court to award restitution, and that informed the application for restitution by the prosecution; that being so, restitution can only be ordered after the court has found the accused person guilty, as was done in this case. The trial court could not have awarded restitution before deciding the guilt of the accused person, because that would have been pre mature.

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ORDER OF RESTITUTION – WHETHER A TRIAL COURT MUST INVESTIGATE ON THE FINANCIAL STATUS OF AN ACCUSED PERSON BEFORE IT CAN ORDER RESTITUTION UNDER SECTION 11 OF THE ADVANCED FEE FRAUD ACT

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“The restitution awarded is clearly in ‘addition’ to any other penalty the court may award as prescribed by the law, there is no need or necessity for additional evidence of any kind at this point. The trial court does not have to further investigate or rely on whether the appellant had money in his account before restitution can be ordered under section 11 of the Advanced Fee Fraud Act, what matters most in the eyes of the law is whether the accused/ appellant is guilty of the offense of fraud for which he was charged, and now found guilty.

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AWARD OF RESTITUTION – WHEN CAN AN AWARD OF RESTITUTION BE MADE?

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“The award of restitution can only be made after the plea of allocutus, as was the case in Raji v. State (2012) LPELR-7968-CA; the lower court cannot therefore be accused of being functus officio at this stage, because the proceeding is to all intents and purposes one and the same; the authority of Odigwe v. JSC Delta supra cited in support of learned counsel to the appellant’s contention is therefore least appropriate.”

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CLEAR AND UNAMBIGUOUS WORDS OF A STATUTE – DUTY OF COURT WHERE THE WORDS OF A STATUTE ARE CLEAR AND UNAMBIGUOUS

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“Section 11 of the Act is very clear as it is unambiguous, and where the words of a statute are clear and unambiguous, the court ought to give such words their ordinary and literal meaning, see C.C.C & C.C V Ltd v. Ekpo (2008) FWLR part 418 page 198.”

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ORDER OF RESTITUTION – POWER OF COURT TO ORDER RESTITUTION

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“A careful reading of section 11 of the Advance Fee Fraud Act clearly shows that it has empowered the court to make an order for restitution, which the law sees as an act of giving back to a person something that was lost or stolen, or of paying him money for the loss, apart from any other punishment or penalty it may have imposed on a convict.”

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“FALSE PRETENSE”- DEFINITION OF “FALSE PRETENSE”

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“Section 20 of the Advance Fee Fraud defines ‘false pretense’ as representation, whether deliberate or reckless, made by word, in writing or any conduct, of a matter of facts 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.”

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PROOF OF OBTAINING MONEY BY FALSE PRETENSE – STANDARD OF PROOF REQUIRED TO ESTABLISH THE OFFENCE OF OBTAINING MONEY BY FALSE PRETENCE

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“The standard of proof required to prove the offenses charged is to simply establish the guilt of the accused appellant with compelling evidence and that was clearly done in this case through the evidence of PWS 1, 2 and 3; see Nwaturuocha v. State (2011) 6 NWLR (Pt.1242) p.170”.

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CASES CITED

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STATUTES REFERRED TO

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Advance Fee Fraud and Other Fraud Related Offences Act, 2006|Criminal Code Cap C38 Laws of the Federation of Nigeria 2004|

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