Legalpedia Electronic Citation: LER [2019]CA/L/782C/2018

CA/L/782C/2018

AREAS OF LAW:

Appeal, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS

The Appellant  and one Michael Nnodu (who was described to be at large)was charged before the trial court on six counts for conspiracy, obtaining by false pretence and stealing. The trial court found the Appellant not guilty of the offence of conspiracy but guilty of the offences of stealing and obtaining by false pretence. He was sentenced to 7 and 5 years for counts 2, 3 &4 and Counts 5 & 6 respectively, which counts were to run concurrently. Dissatisfied with the judgment of the trial court, the Appellant has appealed to the Court of Appeal contending that the burden of proof in criminal matter is on the prosecution that he has no duty to prove his innocence.

HELD

Appeal Dismissed

 

ISSUES FOR DETERMINATION

• Whether the burden of proof on the prosecution to prove its case against the Defendant shift.

 

• Whether the prosecution proved its case beyond reasonable doubt in convicting the Defendant for the offence of stealing and obtaining by false pretence.

 

 

• Whether the Defendant is not liable to be discharged and acquitted following the discharge of the co-accused with which he was charged when the evidence relied upon by the trial court was same and similar.

RATIONES

BURDEN OF PROOF – WHETHER THE BURDEN OF PROOF IN CRIMINAL TRIAL SHIFTS

“The position of the law is trite. It is that in criminal cases, the burden is entirely on the prosecution to prove the guilt of the Defendant. This burden does not shift if the Respondent must secure conviction. This is because, there is the presumption of innocence in favour of the Defendant as he has no obligation in law to prove his innocence. The duty is squarely on the shoulder of the Respondent to prove all the ingredients of the offence to secure conviction. This burden does not shift at all. In Ankpegher vs. State (2018) LPELR-43906 (SC), the apex court per Kekere-Ekun, JSC at pages 24-25 held:

“There is no doubt that in criminal proceedings the onus of proof lies on the prosecution throughout the trial and does not shift. In other words, there is no burden on the accused person to prove his innocence. It is also trite that the standard of proof in criminal proceedings is proof beyond reasonable doubt but not proof beyond the shadow of a doubt. See: Section 135 of the Evidence Act, 2011; Ikpo vs. The State (2016) 2-3 SC (Pt. III) 88; Oseni vs. The State (2012) 5 NWLR (Pt.1293) 351 @ 388 F-G; Woolmington vs. D.P.P (1935) AC 462.”

Similarly, in Ugboji vs. State (2017) LPELR-43427 (SC), Sanusi, JSC at page 28 held:

“The law is well settled, that the prosecution always has the burden to prove the commission of an offence (See Section 138 of the Evidence Act 2011 (as amended). This tallies with time honored principle of law that who asserts must prove. In criminal cases the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of   Ani v State (2000) 6 SCNJ 98 at 107.”

One more case will not harm. In State vs. Ajayi (2016) LPELR-40663 (SC), Okoro, JSC at page 50 held:

“It is trite that in criminal the proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt and the prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the charge or charges are proved by evidence. See; Yongo vs. COP (1992) 4 SCNJ 113, (1992) LPELR – 3528 (SC); Uche Williams vs. The State (1992)10 SCNJ 74. It must be noted that under our system of criminal justice, accused person is presumed innocent until he is proved guilty and the burden of proof is always on the prosecution. See Okputuobiode & Ors vs. The State (1970) ALL NLR 36, (1970) LPELR – 2524 (SC).”

• PER E. TOBI, J.C.A

 BURDEN OF PROOF – INSTANCES WHERE THE BURDEN OF PROOF SHIFTS IN A CRIMINAL CASE

“The point must be made however that while the burden to prove the guilt of the Defendant does not shift, there are instance in a criminal case when burden of prove shift. This is when, the Defendant makes an assertion over a fact in a criminal matter, the burden is on him to prove that fact. This is because the law is trite and it is that whoever alleges a fact is under obligation in law to prove the fact he alleges. See; Ex- Captain Charles C. Ekeagwu vs. The Nigerian Army & Anor NSCQR Vol. 42 2010 pg. 1238; Michael Eyo vs. Emeka Collins Onuoha NSCQR 210; Eze vs. State (1976) 1 SC (reprint) 69. In Omorede Darlinton vs. FRN ELC (2018) 2415 page 1, the apex court held:

“There is no doubt, and it is trite as well, that the Appellant has the burden of establishing his assertions. He has a duty to establish the assertions made in the complaints either in his grounds of appeal or the issues formulated from the grounds of appeal for the determination of his appeal. Section 131(1) of the Evidence Act, 2011 is quite categorical on this: whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

• PER E. TOBI, J.C.A

STANDARD OF PROOF – STANDARD OF PROOF REQUIRED TO SECURE A CONVICTION FOR AN OFFENCE

“It is a trite position of the law that to secure conviction, the prosecution must not only connect the Defendant to the offence but in doing so the standard of prove required is; prove beyond reasonable doubt. This means the Respondent must prove all the ingredients of the offence for which the Defendant is charged with. The standard is beyond reasonable doubt. The law is, when there is any doubt in the course of proving any ingredient of the offence; the doubt will be resolved in favour of the Defendant, as that will mean that the Respondent has not proved his case beyond reasonable doubt. See Vivan Odogwu vs. The State NSCQR Vol. 55 2013 page 309; Chukwuka Ogodu vs. The State NSCQR Vol. 48 2011 page 377; Jimoh vs. The State (2018) LPELR- 44074(CA)”. PER E. TOBI, J.C.A

PROOF BEYOND REASONABLE DOUBT – WHAT AMOUNTS TO PROOF BEYOND REASONABLE DOUBT?

“The apex court in a cloud of cases established beyond any dispute what will amount to prove beyond reasonable doubt. This does not mean beyond all doubt or shadow of doubt. There cannot probably be any prove that can be beyond all doubt or shadow of doubt. For as long as we are on this side of life, it will be expecting and demanding too much to prove a criminal case beyond any shadow of doubt. There will be some doubts here and there but the doubt to be relevant, as to affect the case of the prosecution, must relate to any of the ingredients of the offence. That is what really counts. Anything apart from that will not be a relevant doubt.   I will take a few cases on this point. In Alabi vs. State (1993) 7 NWLR (pt. 307) 511, the Supreme Court held:

“Before it can rightly be said that the prosecution has proved its case beyond reasonable doubt therefore, every ingredient of the offence charged, which in the instant case is robbery must be established. In other words, if one element is left out then there is no proof beyond reasonable doubt”.

The Supreme Court also in Ikaria vs. State (2014) 1 NWLR (pt 1389) 639 affirm the above position per Ogunbiyi, JSC thus:

“By the use of the phrase “Proof beyond reasonable doubt,” it presupposes that all the ingredients establishing the offences must be proved to such a degree that there would be no question or stone left unturned as to the certainty that it is the accused/appellant and none other than must have committed the act complained of. In other words, all fingers would irritably point towards the direction of the accused. The culpability of the appellant should not be in any shadow of doubt but a clear focus of attention. For such proof, to sustain, it must earn the credibility of witnesses’ testimonies who must give a first-hand account of facts which are within their personal knowledge. Any other source of information would be rated a hearsay evidence and therefore not admissible.

The burden placed on the prosecution to prove the charge against the accused/appellant never shifts and failure on the part of the prosecution to establish even one of the ingredients of the offence will lead to the discharge of the accused person. See; the case of Nweke vs. State (2001)4 NWLR (Pt. 704) 588; Tanko vs. State (2003) 16 NWLR (Pt. 114) 597 @ 636 and Aruma vs. State (1990) 66 NWLR (Pt. 153) 125.

It is further relevant to also restate that the purport of Section 138 of the Evidence Act is to affirm the absence of duty on the accused person to establish his innocence in a criminal charge proffered against him. That duty squarely lies on the prosecution to establish the guilt of the accused beyond reasonable doubt. In the case of KIM v. State (1992) 4 NWLR (Pt.233) 17 for instance Nnaemeka Agu JSC (of blessed memory) in his summation said: –

“The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused.” See; also the case of Woolmington vs. DPP (1935) AC 462 and Igabele vs. State (2006) 6 NWLR (Pt. 975) 100.”

Similarly, in Aiguoreghian & Anor vs. State (2004) 1 SC (pt 1) 65, the apex court held:

“It is a cardinal requirement of our criminal justice system that the prosecution must prove its case beyond all reasonable doubt: see Muka vs. The State (1976)9-10 SC 305; Anekwe vs. The State (1976)8-10 SC 255. This means that every ingredient of an offence must be established to that standard of proof so as to leave no reasonable doubt of the guilt of an accused.”

• PER E. TOBI, J.C.A

 

OFFENCE OF OBTAINING BY FALSE PRETENCE – WHEN IS THE OFFENCE OF OBTAINING BY FALSE PRETENCE CONSTITUTED?

“In Omorede Darlinton vs. FRN ELC (2018) 2415page 1, the Supre Court per Eko, JSC in bringing out the ingredients of the offence held:

“The offence of obtaining by false pretence created by Section 1(1) (a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts

1. A pretense is made by way of representation.
2. From the accused person.

III. To the person defrauded.

1. The representation is pretence.
2. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
3. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.

VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person.

VIII. The property transferred is capable of being stolen i.e. is as portable.

These elements of the offence, under Section 1(1) (a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence.”

• PER E. TOBI, J.C.A

OBTAINING BY FALSE PRETENCE – DEFINITION OF OBTAINING BY FALSE PRETENCE

“In Osareren vs. FRN (2018) LPELR 43839 (SC), the Supreme Court defining obtaining by false pretence under the Act the Appellant is charged for said per Peter-Odili, JSC at page 46 held:

“In respect to the offence of obtaining money under false pretence in counts three to seven against the appellant, I shall first cite the relevant statutory provision thus: –

Section 1(1) (a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, states thus:

“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intend to defraud…

• Obtain from any person, in Nigeria or in any other country, for himself or any other person… Any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under this Act.”
• PER E. TOBI, J.C.A

OBTAINING BY FALSE PRETENCE – INGREDIENTS OF THE OFFENCE OF OBTAINING BY FALSE PRETENCE

“The ingredients of the offence under the Act and under the Criminal code are not fundamentally different. The apex court in Onwudiwe vs. FRN (2006) 4 SC (Pt. II) 70 defining the offence under the Criminal Code held:

“Let me deal with the offence as provided for in Section 419 of the Criminal Code Law. In order to succeed, the prosecution must prove (1), that there is a pretence; (2) that the pretence emanated from the accused person; (3) and that it was false; (4) that the accused person knew of its falsity or did not believe in its truth; (5) that there was an intention to defraud; (6) that the thing is capable of being stolen; (7) that the accused person induced the owner to transfer his whole interest in the property. The offence could be committed either by oral communication or in writing or even by conduct of the accused person. An honest belief in the truth of the statement on the part of the accused which later turns out to be false, cannot found a conviction on false pretence.”

The ingredients must be proved conjunctively and not disjunctively. In other words, the ingredients are mutually inclusive and not mutually exclusive. See; Bello vs. FRN (2018) LPELR- 43688”. PER E. TOBI, J.C.A

PROOF OF INTENTION – MODE OF PROVING INTENTION

“Apparently, intention is a state of mind which is not capable of direct prove. It is commonly said, not even the devil knows the intention of a man. The intention of a man cannot be seen by facial expression. It is therefore by inference that an intention can be proved. This much this court held in Confido Consult Services Ltd vs. FRN (2018) LPELR-43676 (CA) per Nimpar, JCA at page 29 thus:

“As to the contention on whether or not intent to defraud was made out, intent is a state of mind which can seldom be proved by direct evidence, but will ordinarily be inferred from surrounding circumstances. Such proof can only be made possible by certain acts, circumstances and inferences deducible from the facts of the case. Clearly, by representing itself as a capital market operator without due license, despite knowing that it had no license to operate, the Appellant deceitfully made false representations to the complainant in a bid to obtain money from him and the Lower Court was in order to have found as such.”

• PER E. TOBI, J.C.A

OFFENCE OF STEALING – INGREDIENTS OF THE OFFENCE OF STEALING

The ingredients of the offence of stealing is stated clearly in Adejobi & Anor vs. State (2011) 6-7 SC (pt III) 65. The apex court held:

“A person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen is said to steal that thing. The ingredients of the offence of stealing are as follows namely: –

1. The ownership of the thing stolen.
2. That the thing stolen is capable of being stolen.
3. The fraudulent taking or conversion.

Oshinye vs. Commissioner of Police (1960)5 SC Pg. 105, Chianugo vs. State (2002)2 NWLR (Pt.750) pg. 325”

See also Ayeni vs. State (2016) LPELR- 40105; Oyebanji vs. State (2015) LPELR- 24751 (SC)”.PER E. TOBI, J.C.A

 

STATUTE REFERRED TO

Advance Fee Fraud and Other Fraud Related Offences Act No. 11, 2006