Legalpedia Citation: (2023-04) Legalpedia 76454 (CA)

In the Court of Appeal

CALABAR JUDICIAL DIVISION

Mon Apr 3, 2023

Suit Number: CA/C/15C/2021

CORAM

Raphael Chikwe Agbo JSC

Oyebisi Folayemi Omoleye JSC

Balkisu Bello Aliyu JSC

PARTIES

CHIONYE CHUKWUDI

APPELLANTS

COMMISSIONER OF POLICE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

Sometimes in 2011, the victim Miss Augustina Nwankwo (PW1), met the Appellant’s co-convict (Chike Akwuruoha) through 2go and Facebook social media. PW1 said the Appellant’s co-convict was known to her as Chikezie Ogbuefi a land agent and a property law student at the River State University of Technology, living at Port Harcourt. PW1 said the Appellant’s co-convict and her became social media friends, and she told him of her desire to expand her business to Port Harcourt as such, she wanted to buy a piece of land in that city. But she expressed fear of being defrauded and the Appellant’s co-convict assured PW1 that he was not a fraudster and to further assuage her fears and assure her of his sincerity, he introduced the Appellant to her, whom he told her was a serving police officer with rank of Inspector working in Port Harcourt and was his friend. The Appellant’s co-convict assured her that all transactions regarding the purchase of land in Port Harcourt would pass through the Appellant, a serving police officer and would therefore be secured.

​PW1 was convinced and informed the Appellant and his co-convict that the reason she wanted to buy a piece of land was to build a supermarket in Port Harcourt. The Appellant informed PW1 that he has secured a land which he would sell to her at the price of N10million which she agreed to buy and to pay for in installments. The Appellant then sent his Access Bank account number in his name in which PW1 started sending him money for the land. The Appellant later called PW1 and told her that his account with Access Bank that was sent to her was a saving account and he was not allowed to withdraw more than N1million at a time, she therefore should send parts of the money through AKTC Drivers in the name of the Appellant’s co-convict which she did but was received each time by the Appellant. When she concluded payments for the land, the Appellant’s co-convict invited her to come to Port Harcourt to collect the title documents of the land, but before the scheduled day of the meeting, the Appellant and his co-convict stopped taking her telephone calls.

​The Appellant’s co-convict later called her with a different telephone number and informed her that he was in hiding with the Appellant at the police quarters Port Harcourt because some kidnappers were after him. He told her that he needed money to settle kidnappers that were on his trail and he had a Toyota Highlander which he purchased at N7.5million and offered it to PW1 for N3.5million so he can settle his issues and come out of hiding to meet her. PW1 said she believed him and paid the N3.5million for the vehicle.

After that payment for the jeep, the Appellant and his co-convict asked her whether she was personally going to Port Harcourt to collect the land title documents and the vehicle or would she send someone to collect them for her. She opted to send someone else to collect the items for her. But before she could send for the documents and the vehicle, the Appellant and his co-convict told her that they needed N350,000 to buy tyers, battery, and other things for the vehicle and she sent the said sums of money through AKTC Drivers. On the morning that PW1 was to send for the vehicle and the land title documents, the Appellant again called her and said that there was no light showing on the dashboard of the vehicle because the brain box was damaged, and he needed her to send more money. It was then that it downed on PW1 that she had been dealing with fraudsters.

​ On advice of a friend (PW2), PW1 called the Appellant on phone and recorded their conversation with which she laid a complaint with the police. The police asked her to send the sum of N50,000 to the Appellant for the brain box of the vehicle through the AKTC drivers. She parceled the money and called the Appellant’s co-convict and told him that she had sent him the money through AKTC Drivers. The police investigation officer in disguise, wearing AKTC Drivers uniform travelled to Port Harcourt. Upon reaching Port Harcourt, the police asked PW1 to call Appellant’s co-convict to go to the AKTC Drivers to collect the message. The Appellant went to collect the package as usual, but the police disguised as AKTC drivers refused to hand him the package and asked him to place a phone call to PW1 for proper identification. When he did, PW1 confirmed to police his identity and they arrested him.

The Appellant and the co-accused pleaded not-guilty and claimed that all the money sent through the accounts and the AKTC drivers were gifts from the victim whom they claimed was in love with the Appellant’s co-accused and they had promised marriage to each other.

The Appellant along with the co-accused were convicted and sentenced to five years imprisonment for the offence of obtaining money by false pretence, contrary to Section 1(a) of Advance Fee Fraud and Other Related Offences Act, 2006. The trial Court in addition, ordered him to pay the sum of N3million to PW1 as restitution.

Aggrieved, the Appellant made the instant appeal before this court.

HELD

Appeal dismissed

ISSUES

Ø Whether the charge was proved before the trial Court beyond reasonable doubt?

RATIONES DECIDENDI

OBTAINING BY FALSE PRETENSE – ELEMENTS OF THE OFFENSE OF OBTAINING BY FALSE PRETENSE

The Respondent as the prosecutor was duty bound to establish, with credible evidence the elements of the offence of fraudulently obtaining the sums of money stated in the two counts charge against the Appellant beyond reasonable doubt, as required by Section 135(1) and (2) of the Evidence Act, 2011. The elements of the offence charged to be proved are embedded in Section 1(a) of the Act, namely; that the Appellant with (1) the intention to defraud, (2) made false representation, (3) which representation he knew was false, and (4) the victim was convinced/induced by the false pretence to part with her money, and (5) the accused obtained the sums of money from the victim pursuant to that false pretence or misrepresentation. See DARLINGTON VS. FRN (2018) LPELR-43850 at Pgs. 14-15 paras. A-A, cited by the Respondent, where the Apex Court, per EKO, JSC explained in detail the elements of the offence of obtaining by false pretence under Section 1 (1)(a) of the AFF Act. The Apex Court added that:

In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct. – Per B. B. Aliyu, JCA

BURDEN OF PROOF – REQUIREMENT FOR DISCHARGING THE BURDEN OF PROOF BY THE PROSECUTOR

On the Appellant’s 1st and 2nd complaints, the law is trite that in the discharge of burden of proof, the prosecution is not required to call every available or a particular witness or a particular piece of evidence. All that the law requires from the prosecution is to adduce evidence which is sufficient and credible to prove the charge against the accused person beyond reasonable doubt. The prosecution, therefore, has the discretion to call only material witnesses whose evidence is sufficient to prove the charge against the accused. See STATE VS. ADU (2021) LPELR-56616 (SC) at pages 87-88 A-A where it was held, inter alia per PETER ODILI, JSC that “the law does not impose on the prosecution, the duty or function of both the prosecution and the defence and so it is not even bound to call every material witness but if requested such a witness must be tendered for cross-examination.” Also in the case of MOHAMMED VS. A. G. FED. (2020) LPELR-52526 (S.C.), per KEKERE-EKUN, JSC at page 30-31 paras. it was held that:

“The law is quite settled that in discharging its burden of proving its case beyond reasonable doubt, the prosecution is not bound to call a particular number of witnesses or any specific witnesses. It has the discretion to call only those material witnesses whose evidence would enable it to discharge the burden of proof. After all, the evidence of a single witness, if cogent and credible may suffice to prove the case, even in murder charge… The accused person is at liberty to call any witness not called by the prosecution that he believes would assist his case…”– Per B. B. Aliyu, JCA

CASES CITED

STATUTES REFERRED TO

1. Advance Fee Fraud and Other Related Offences Act, 2006
2. Administration of Criminal Justice Act, 2015
3.  Evidence Act, 2011

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