CORAM

---

Yargata Byenchit Nimpar Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

---

PARTIES

---

OKEWOLE ADESESAN

APPELLANTS 

---

THE FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

---

AREA(S) OF LAW

---

CRIMINAL LAW, ADVANCE FEE FRAUD, EVIDENCE, CONSPIRACY, FALSE PRETENCE, SENTENCING, APPEAL, PRACTICE AND PROCEDURE, JUDICIAL DISCRETION, CONSTITUTIONAL LAW

 

---

SUMMARY OF FACTS

This appeal arose from the judgment of the Oyo State High Court delivered by Honourable Justice M. L. Abimbola, the Chief Judge of Oyo State, on February 3, 2021. The Appellant was convicted on a 6-count charge brought under the Advanced Fee Fraud and other Fraud Related Offences Act, Cap. A6 LFN and sentenced to 2 years imprisonment on each count, with the sentences to run concurrently.

The Appellant was charged before the lower Court on September 13, 2013. To prove its case, the Respondent called 5 witnesses and tendered exhibits A to U20. After the Prosecution closed its case, the Appellant made a “no case submission” which was overruled by the trial Court. The Appellant then entered his defense by testifying on his own behalf and closed his case. After hearing, the trial Court delivered its judgment and found the Appellant guilty.

Dissatisfied with the trial Court’s decision, the Appellant filed a Notice of Appeal dated February 18, 2021, which was deemed properly filed and served on January 8, 2024. The appeal was premised on three grounds with their particulars set out in the Notice of Appeal.

 

---

HELD

---

1. The appeal was dismissed.

2. The Court affirmed the Appellant’s conviction by the trial Court.

3. The Court found that the sentence of two years imprisonment imposed by the trial Court was inappropriate as it was below the mandatory minimum sentence of seven years prescribed by the Advance Fee Fraud and Other Fraud Related Offences Act.

4. The Court substituted the two years sentence with the mandatory minimum sentence of seven years imprisonment without the option of fine.

5. However, in view of the fact that the Appellant may have already served the two years imprisonment term, the Court, in exercise of its inherent jurisdiction under Section 6(6)(a) of the 1999 Constitution (as amended), held that the Appellant should not be re-arrested or confined to correctional facilities.

 

---

ISSUES

---

1. Whether the purported confessional statement described as exhibits T, T1-7 upon which the conviction and sentence of the Appellant was made encapsulates the elements of the offence charged and whether same was direct, positive and corroborated?

2. Whether the Respondent satisfactorily proved beyond reasonable doubt the guilt of the Appellant?

3. Whether the trial Court was right in sentencing the Appellant, a first-time offender, to two years imprisonment on all the charges which were not proved beyond reasonable doubt.

 

---

RATIONES DECIDENDI

---

BURDEN AND STANDARD OF PROOF – PROOF BEYOND REASONABLE DOUBT IN CRIMINAL CASES

---

I will like to state as a preface remark that as a general rule of our adversarial system of justice that the burden of proof, is on the person who asserts. The combined effects of the provisions of SECTIONS 131 and 132 of the EVIDENCE ACT 2011 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he who asserts, shall prove that those facts exist and the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. This principle has also been established in a plethora of cases such as in MUHAMMED SARKI FULANI VS. THE STATE (2018) 6-7 SC (PT. 1111) 55. While the burden referred to above is discharged in civil causes and matters on a balance of probabilities, the standard however in criminal cases such as the instant case which this Honourable Court is faced with, is that of proof beyond reasonable doubt. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

PROOF BEYOND REASONABLE DOUBT – MEANING AND SCOPE OF REASONABLE DOUBT

---

Proof beyond reasonable doubt does not however, mean proof beyond all shadow of doubt. This position has been clearly stated in SECTION 135 (1) AND (2) OF THE EVIDENCE ACT 2011. See also MOSES VS. STATE (2006) 11 NWLR (PT. 992) 458, ALAO VS. STATE (2019) 17 NWLR (PT. 1702) 502 (SC). – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

BURDEN OF PROOF IN CRIMINAL MATTERS – QUALITY OF EVIDENCE REQUIRED FROM PROSECUTION

---

Similarly, the Apex Court and indeed this Court, have held in a plethora of cases that in discharging the burden of proof in criminal matters, the prosecution is required to produce a plausible and credible evidence which may be direct or if circumstantial, it must be of such quality or cogency that a Court could safely rely on it in coming to its decision in the case. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

REASONABLE DOUBT – RESOLUTION IN FAVOR OF DEFENDANT

---

Where the evidence led, including documentary exhibits tendered by either or both parties which when construed, leaves out any reasonable proposition on the facts, such doubt is required to be resolved in favour of the Defendant, and therein lies the difference between our common law accusatorial criminal justice system in contrast with the French’s or other jurisdiction’s inquisitorial system where a defendant may be required to prove his innocence on the indictment that formed the charge. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

DEFINITION OF FRAUD – ELEMENTS OF FRAUD UNDER THE LAW

---

In the case of UMANAH VS. ATTAH & ORS. (2006) LPELR – 255/2005(SC), Onnoghen, JSC (as he then was, now rtd CJN) defined fraud as follows: ‘As defined in VULCAN GASES LTD. VS. G. F. IND. A-G (2001) 9 NWLR (PT. 719) 610 at 624. ‘Fraud, in most cases involves dishonesty. Actually fraud takes either the form of statement which is false or a suppression of what is true. The partial statement of fact and the withholding of essential qualifications may make that which is stated absolutely false and fix it under the head of suggestio falsi.’ – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

ELEMENTS OF OBTAINING BY FALSE PRETENCE – CONSTITUENTS OF THE OFFENCE

---

The Supreme Court, per Eko, JSC in DARLINTON V FRN (2018) LPELR-43850(SC) AT PAGES 14 -15 carefully spelt out the elements of this offense and it states thus: ‘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 I. A pretence is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. V. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. 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 property to 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. Onwudiwe v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382.’ – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

MENS REA AND ACTUS REUS – ESSENTIAL ELEMENTS IN CRIMINAL LIABILITY

---

The elements of this offence reveal that there are two aspects of this offence, the intention to defraud and the actual act of defrauding. It is a fundamental principle of criminal law that a crime consists of both a mental (mens rea) and a physical (actus reus) element. The standard common law test of criminal liability is expressed in the Latin phrase ‘actus reus non facitreum nisi mens sit rea’, which means: ‘the act is not culpable unless the mind is guilty’. Mens rea means a guilty mind while actus reus means a guilty act. Put another way, the guilty mind instigates the guilty act or flows into the guilty act. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

DUTY OF APPLICANT – RESPONSIBILITY FOR DOCUMENTS SUBMITTED

---

I find it necessary to address the Appellant’s contention that he bears no liability for the submission of false documents in support of the visa application. This argument in my opinion is rather puerile, specious and unpersuasive. It is well-established that applicants have a duty to ensure the accuracy and authenticity of documents submitted in support of their applications. In this case, the Appellant claims that he engaged an agent-Mr. Popoola who was at large at the trial Court, to assist with his application, but this does not absolve him of responsibility for the contents of the submission. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

MANDATORY SENTENCE – COURT’S LACK OF DISCRETION IN IMPOSING MANDATORY SENTENCES

---

It is settled law that where the law provides a mandatory sentence for an offence, as opposed to a maximum sentence, the Court cannot impose a lesser sentence. This is to avoid incidents of judicial arbitrariness in a solemn judicial decision of sentencing. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

MANDATORY SENTENCE UNDER ADVANCE FEE FRAUD ACT – LACK OF DISCRETION IN IMPOSING LESSER SENTENCE

---

In addressing the punishment attached to the offence of conspiracy in the case of YUSUF V. F.R.N (2016) LPELR-41811 (CA) (PP. 33-35 paras. E-A) which I believe is on all fours with the instant appeal, my learned brother, SHUAIBU, PJCA held thus: ‘I must however make a few comment by way of emphasis of the mandatory nature of Sections 8 (a) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 under which the appellant was tried convicted and sentenced. These sections prescribed mandatory sentence which a judicial officer is required to impose regardless of the circumstances of the offence. In other words, the judicial officer has no discretion to impose a higher or lower sentence depending upon the nature of the crime.'” – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

POWERS OF COURT OF APPEAL – SUBSTITUTION OF APPROPRIATE SENTENCE

---

In view of the above resolutions, I find it imperative to invoke the provisions of SECTION 15 OF THE COURT APPEAL ACT, 2004 by substituting the two (2) years sentence made by the trial Court, for a minimum sentence of seven (7) years prescribed by the law without an option of fine as the trial chief Judge, was clearly acting outside the frontiers of the law when he sentenced the Appellant to two (2) years imprisonment.– Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

FIRST-TIME OFFENDER – CONSIDERATION IN SENTENCING

---

Ancillary to this issue is to state it clearly, that the fact of a convicted person being a first time offender is not necessarily decisive in getting a lighter sentence, there are other several considerations which a Court will take cognisance of before exercising its judicial discretion to impose a lighter sentence, but even at that, it cannot go below the mandatory threshold set by the Legislature in the law that was used to formulate the indictment with which the Appellant was tried and adjudged guilty. – Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

INHERENT JURISDICTION – POWER TO PREVENT RE-ARREST AFTER SENTENCE HAS BEEN SERVED

---

In the event that the Appellant had fully served the two years term of imprisonment sentence imposed on him by the trial Chief Judge, (this is because, custodial sentence is often by operation of law, immediately executory), the Appellant shall not in consequence of this judgment be re-arrested and or confined into custody of a correctional facilities, he is by this development, ‘freed’ as his punishment may have already been served. This decision, in the exercise of the inherent jurisdiction of this Court as prescribed by Section 6 (6) (a) of the Constitution, 1999 As Amended was informed by the fact that I have not seen or stumble on any process or order either of this Court or the trial Court in the record of appeal that indicates that the sentence imposed on the Appellant was stayed or suspended pending the outcome of the instant appeal.– Per GABRIEL OMONIYI KOLAWOLE, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Evidence Act, 2011

3. Advance Fee Fraud and other Fraud Related Offences Act, Cap. A6 LFN 2004

4. Court of Appeal Act, 2004

5. Administration of Criminal Justice Act, 2015

6. Court of Appeal Rules, 2021

 

---

CLICK HERE TO READ FULL JUDGMENT