CORAM

---

---

PARTIES

---

OLABAMIJI MICHAEL KAYODE

---

FEDERAL REPUBLIC OF NIGERIA

---

AREA(S) OF LAW

---

---

SUMMARY OF FACTS

The Appellant was charged at the High Court of Lagos State, Ikeja Judicial Division on a 99 count charge of obtaining by false pretences contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, Cap A6, Laws of the Federation 2006. It was alleged that the Appellant had between May-December 2009, at Kirikiri Town with intent to defraud obtained from various persons, numbering about 99, various sum of money and falsely represented to them that he had various types of accommodation at a property situate at No. 2 Amuda Street, Kirikiri Town Lagos, to rent to them and which representation he knew to be false. On his part, the Appellant denied the allegations made against him and insisted that he had a Property Development Agreement over the said property, which was under renovation and indeed received the various sums from the various persons with the intention to give them various types of accommodation as paid for to those who can have space in the said property and then make a refund to those who would not get in view of the limited number of types of accommodation available in the said property. At the end of the trial, the Court found the Appellant guilty and sentenced him to 15 years imprisonment on each of the 99 counts to run concurrently from 1/4/2010, an order of forfeiture of the Appellant’s terms of years under the Development Agreement in respect of the subject property used in the commission of the crimes and an order authorizing the EFCC to manage the said property till 2025 when the Appellant term of years would expire, using the proceed to settle the various victims of the Appellant’s offences. Dissatisfied, the Appellant filed an appeal against the judgment to this Court vide a Notice of Appeal.

---

HELD

---

Appeal Dismissed

---

ISSUES

---

Whether the Court below correctly interpreted the conduct, act and omission on the part of the appellant under Exhibits A-U and V-W to fall within the entire Section 1(1), (2) and (3) of the Advance Fee Fraud and Other Related Offences Act 2006 Whether the Court below by virtue of statutory provisions and case law authorities has power to impose terms of imprisonment far and above the maximum sentence imposed by the legislature. Whether the judgment of the Court below delivered is perverse and entered per incuriam. Whether the Court below was right to appoint Economic and Financial Crimes Commission as Estate managers to take over and let and manage No 2 Amuda Street Kirikiri till 2025 when the Appellant’s terms of years will expire.

---

RATIONES DECIDENDI

---

FORMULATION OF ISSUE FOR DETERMINATION – WHETHER A RESPONDENT WHO HAD NOT FILED A CROSS APPEAL OR A RESPONDENT’S NOTICE IS AT LIBERTY TO FORMULATE ISSUES FOR DETERMINATION NOT ARISING FROM THE COMPETENT GROUNDS OF APPEAL

---

“The law is well settled that a Respondent who had not filed a Cross appeal or a Respondent’s Notice is not at liberty to formulate issues for determination not arising from the competent grounds of appeal. In otherwise, he must navigate and nominate his issue(s) for determination strictly within the purview and ambit of and as circumscribed in the grounds of appeal. In the instant appeal, the Respondent who had neither file a Cross Appeal nor Respondent’s Notice had gone out of the ambit of the grounds of appeal to nominate a lone issue not in any way arising from the grounds of appeal. See EFCC V. Akingbola (2015) All FWLR (Pt. 794) 136 @ pp. 141 – 142. See also Abiola V. FRN (2015) All FWLR (Pt. 773) 1930 @ pp. 1932 – 1933; Gwede v INEC (2013) All FWLR (Pt. 767) 615 @ pp. 618 – 619; Agbogidi v. Okoh (2015) All FWLR (Pt. 789) 1107 @p. 1110.-

---

BURDEN OF PROOF – ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL TRIALS

---

“My lords, in considering issue one, it does appear to me that it deals more with the duty of the Court below, being the trial Court to review, appraise and properly evaluate the evidence as led before it to make proper findings of facts while keeping in mind that in criminal trial the burden is squarely on the Prosecution to prove the offences alleged on Accused person beyond reasonable doubt. This burden is static in criminal trials and thus never shifts. There is therefore, no duty on the Accused person to prove his innocence save perhaps to lead credible evidence in support of whatever defence he may have to the charge as laid against him by the Prosecution. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V.The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V.The State (2003) 7 NWLR (Pt. 819) 408; Isibor V.The State (2002) 4 NWLR (Pt. 758) 241; Iko V.The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) LPELR 3216 (SC) 1; –

---

OFFENCE OF OBTAINING BY FALSE PRETENCES – ESSENTIAL ELEMENTS OF THE OFFENCE OF OBTAINING BY FALSE PRETENCES A PROSECUTION MUST PROVE

---

“Now, in a charge alleging obtaining by false pretences, the law is well settled that the Prosecution has the onus to prove the following essential elements of the offence charged, namely:
1. That there was a pretence
2. That the pretence emanated from the accused person;
3. That the pretence was false
4. That the accused person knew that it was false
5. That there was an intention to defraud
6. That the thing obtained is capable of being stolen
7. That the accused person induced the owner to transfer his whole interest in the property.
See Alake V. The State (1991) 7 NWLR (Pt. 205) 591. See also Federal Republic of Nigeria V. Amah (2016) ALL FWLR (Pt. 818) 889 @ pp. 893 & 909; The State V. FataiAzeez (2008) 35 NSCQR 426; Nwokedi V. COP (1977) All NLR 11; Odiawa V. FRN (2008) LPELR – 4230; Onwudiwe V. FRN (2006) ALL FWLR (Pt. 319) 774; Arije V. FRN (2013) LPELR-22125; Chukwuemeka Aguba V. FRN (2014) LPELR 23211. –

---

BURDEN OF PROOF –CONSEQUENCES OF FAILURE OF THE PROSECUTION TO PROVE THE ESSENTIAL ELEMENTS OF THE OFFENCE TO WHICH AN ACCUSED IS CHARGED WITH

---

“Therefore, to prove the commission of an offence against an Accused person, the Prosecution carries on it the onerous burden to prove by credible evidence that both the Mens rea, otherwise referred to as the mental physical element and actus reus, otherwise referred to as the physical element co-exist except for offences of strict liability in which the mens rea is presumed upon the occurrence of the actus reus. See Akawo V. The State (2011) ALL FWLR (Pt. 597) 624 @ p 631. A failure therefore, on the part of the Respondent to prove any or all of the essential elements that constitute the offence with which the Appellant was charged would be fatal to the charge not proved as required by law. –

---

PROOF OF GUILT OF AN ACCUSED PERSON – MEANS OF PROVING THE GUILT OF AN ACCUSED

---

“However, it must be pointed out for once that in proving the guilt of an Accused person, the Prosecution has open to it three basic types of evidence with which to proves the guilt of accused person, namely; i: Confessional statement; ii: Circumstantial evidence and iii: Evidence of eye witness. See Godwin Igabete V. The State (2006) 6 NWLR (pt. 975) 103. See also Lori V. The State (1950) 1- 11 SC 81; Emeka V The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. –

---

EVALUATION OF EVIDENCE –INSTANCE WHEN AN APPELLATE COURT WOULD INTERFERE TO RE-EVALUATE THE EVIDENCE BY A TRIAL COURT

---

“My lords, in considering issue one, which in essence is a call on this Court to review and re-evaluate the evidence in the printed record to determine if indeed the Court below evaluated the evidence led and made the findings borne out by the evidence as led by the parties, it is my firm view that in law it is only where the Court below had not properly carried out its sacred duty of dispassionately evaluating the totality of the evidence led and had thus failed in this primary duty that an appellate Court would have the legal justification to intervene and re-evaluate the evidence on the printed record in order to make appropriate findings of facts in line with the dictates of justice to the parties. So, until an appellate Court arrives at such a conclusion the need for re-evaluation of evidence does not arise and thus it has no business re -evaluating the evidence and interfering with correct findings of the Court below. Happily both parties in their respective submissions are ad idem on this position of the law. See Adedara V. Arowolo (Supra) @ pp. 1560 – 1561, where it was pronounced succinctly inter alia thus:
“It is certainly trite law that a trial Court has a duty, after hearing evidence from parties to a suit and their witnesses evidence or issues before it, having regards to the pleadings of the parties. This is also called a ‘sacred’ duty of trial judges. In performing that sacred duty, the Court is bound to set out its appraisal and thoughts, showing how and why it came to its findings of facts and thus an appellate Court will intervene either to re-evaluate the evidence or send the case back for re-trial as the case may be, depending on whether or not the unevaluated evidence borders on credibility of witnesses.”
See also Williams V. Tinubu (2014) ALL FWLR (Pt. 755) 200; Amuneke V. The State (1992) NWLR (pt. 217) 347; SuleAsariyu V. The State (1987) 4 NWLR (Pt 67) 709; Nkebisi V. State (2010) 5 NWLR (Pt. 1188) 471; Woluchem V. Gudi (1981) 5 SC. 291; Enang V. Adu(1981) 11-12 SC. 25; Abisi&Ors. v. Ekwalor& Anor (1993) 6 NWLR (Pt. 302) 643; Igapo V. The State (1999) 12 SCNJ 140 @ p. 160; Amala V. State (2004) 12 NWLR (Pt. 888) 520. –

---

EVALUATION AND ASCRIPTION OF PROBATIVE VALUE TO EVIDENCE –INSTANCE WHEN AN APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

---

“I am aware and I feel duty bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the Court below and once that Court discharges that duty on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an appellate Court will not interfere once the conclusions reached is correct, even if the reasons which is the pathway to the conclusion or finding turns out to be wrong. See Alhaji Ndayoko & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198.
It is thus the law that an appellate Court which had not seen the witnesses testify and observed their demeanour in the witness stand should respect the views of the trial Court and not to readily substitute its own views for that of the trial Court except where it is shown that the conclusion or finding reached by the trial Court below was perverse. See Sa’eed v Yakowa (2013) ALL FWLR (Pt. 692) 1650 @ P. 1681. –

---

EVALUATION OF EVIDENCE –CIRCUMSTANCES WHEN AN APPELLATE COURT WILL INTERFERE TO RE-EVALUATE EVIDENCE ON PRINTED RECORD

---

“However, an Appellate Court will most likely and readily intervene to re-evaluate the evidence in the printed record if it is shown that the conclusions reached or findings made by the Court below on the proved evidence before it do not flow from such proved facts or runs contrary to such proved facts and thus perverse. In such a case, the Appellate Court is in good a position as the trial Court to intervene to re-evaluate the evidence in the printed record to draw necessary inference and make proper findings on the proved and admitted facts in the record as the justice of the case requires but which the trial Court had failed to do. See Obajimi V. Adeobi(2008) 3 NWLR (Pt. 1075) 1 @ P. 19. See also Owor V. Christopher (2010) All FWLR (Pt. 511) 962 @ 992; Sogbamu V. Odunaiya (2013) All FWLR (Pt. 700) 1249 @ P. 1302; Mini Lodge V. Ngei (2010) All FWLR (Pt. 506) 1806 @ Pp. 1820 -1821. –

---

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

---

“In the case of Mike Amadi v Federal Republic Of Nigeria reported in 2008 12 SUPREME COURT REPORT PART 3 PAGE 55 the Supreme Court highlighted the provisions of Subsection 1 above as the essential ingredients of the offence of obtaining money by false pretence and each of which ingredients must be proved beyond reasonable doubt against the Defendant for the prosecution to secure a conviction of the Defendant on those counts. In other words, the prosecution must prove the following: That there is a pretence; b. That the pretence emanated from the Defendant; c. That the pretence was false; d. That the Defendant knew of its falsity or did not believe in its truth; e. That there was an intention on the part of the Defendant to defraud; f. That the thing is capable of being stolen; g. That the Defendant induced the owner to transfer his whole interest in the property. –

---

CONFESSION – WHERTHER AN ACCUSED CAN BE CONVICTED SOLELY ON THE STRENGTH OF HIS CONFESSION

---

“Since it is now trite that a Defendant can be convicted solely on the strength of his confession and nothing more, I think that I can rightly convict the Defendant solely on the strength of his aforesaid confession see Onyeneye v The State (2012) LPELR-SC 306/2012, Bright V State (2012) Supreme Court Part 2 Page 47, State V. Isha & 2 ORS 2012 7 Supreme Court Report Part 3 Page 93. See also Section 28 of the Evidence Act 2011 which provides as follows, “a confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime” as well as Section 29 (1) of the same Evidence Act which clearly makes such confessional statements relevant and admissible in law. The following cases are also apposite on this issue, Joseph Idowu v The State (2000) 7 Supreme Court Report Part 2 Page 50, Solola & Anor V State (2005) 5 SC Part 1 Page 135, Omotola & Anor V The State (2009) 2-3 Supreme Court Report Page 148, Rabi Iiml V State (2011) 6 – 7 Supreme Court Report Part 5 Page 148, Bello Shurumo V The State (2010) 12 Supreme Court Report Part 1 Page 73, and also the case of Moses Jua V The State 2010 1-2 Supreme Court Report Page 96. –

---

CONFESSIONAL STATEMENT-NATURE OF CONFESSIONAL STATEMENT SUFFICIENT TO WARRANT THE CONVICTION OF AN ACCUSED PERSON

---

“In law, a confessional statement is one which is direct and positive and relates to the accused person’s acts, knowledge or intention stating or suggesting the inference that he committed the offence with which he was charged. It must be borne in mind by trial Courts that proof of crime charged being required to be beyond reasonable doubt presupposes that all the essential elements of the offence charged must be proved by credible evidence. Where therefore, the prosecution relies on the confessional statement, which is certainly not even the case in the instant appeal, the trial Court must still be careful to consider if both the confessional statement and other pieces of evidence placed before it by the Prosecution and the Accused person satisfied all the essential elements of the offence charged and if lacking in evidence, it cannot be cured or remedied by the ‘confession’ of an accused person, who ordinarily does not know what the essential elements of the offence alleged against him are. See Joseph Abusi V. The State (1992) 1 NWLR (Pt. 260) 383. See also Alabi Shittu V. The State (1970) All NLR 233; Solomon Akpan v. The State (1992) 1 NWLR (Pt. 248) 1;
In Jimoh Yesufu V. The State (1976) 6 SC 109.,Obaseki JSC., had put this issue admirably in its proper context inter alia thus:
“There is a long line of judicial authorities …. that a free and voluntary confession of guilt by a prisoner … if it direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without any corroborative evidence, so long as the Court is satisfied of the truth of the confession”
–

---

FINDINGS OF FACT BY TRIAL COURT – INSTANCES WHERE AN APPELLATE COURT WOULD INTERFERE WITH THE FINDINGS OF FACT BY A TRIAL COURT

---

“In coming to the above conclusion, I have borne in mind that in law it is the prerogative of a trial Court who sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. This is so because a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before him and therefore, if its findings once premised on the facts and evidence before it was led by the parties must be allowed to stand and cannot be interfered with by an appellate Court which had not seen, heard and watched the witnesses testify in Court.
Thus, in law it is only when the conviction of an Accused person is not supported and founded on credible evidence, which must be cogent and must not create room for speculation or doubt, that such a conviction is liable to be set aside on Appeal. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) 3216 (SC) 1”; –

---

SENTENCE – WHETHER COURTS HAVE THE JURISDICTION TO IMPOSE LESS THAN THE MANDATORY SENTENCE PRESCRIBED BY LAW

---

“My lords, in my finding therefore, the 15 year imprisonment considering the gravity and the circumstances of the commission of the offences for which the Appellant was convicted, was not excessive or oppressive on the Appellant, as it did not go beyond the 20 years maximum sentenced as prescribed by the Law. I see no reason or justification whatsoever in this appeal to interfere with such a lenient midway sentence imposed on the Appellant by the Court below. See Amoshima V. State (Supra) @ p. 553, where Onnoghen JSC (as he then was, now Ag. CJN) had pronounced succinctly inter alia thus:
“It is settled law also that where a Statute prescribes a mandatory sentence in clear terms as in the instant case, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised in the manner. It is duty imposed by law. The above situation is different from, the one in which, the Statute provides for either the minimum sentence as in Section 1(1) of the Robbery and Firearms (Special Provisions) Act or the maximum sentence to be imposed. In either case, the Court is clothed with the discretion to either impose more than the minimum or less than the maximum sentence prescribed”
–

---

CASES CITED

---

Not Available

---

STATUTES REFERRED TO

---

Administration of Criminal Justice Law of Lagos State 2011|Advance Fee Fraud and Other Related Offences Act, Cap A6, Laws of the Federation 2006|Constitution of the Federal Republic of Nigeria, 1999 (as amended)|Evidence Act 2011|Interpretation Act

---

CLICK HERE TO READ FULL JUDGMENT