ROWAYE JUBRIL v. FEDERAL REPUBLIC OF NIGERIA
April 11, 2025ALHAJI ISAMAILA ABDULKAREEM & ANOR V ALI MAYAKI & ORS
April 11, 2025Legalpedia Citation: (2018) Legalpedia (SC) 75613
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Fri Mar 9, 2018
Suit Number: SC.247/2015
CORAM
PARTIES
ONYIA IFEANYI APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Accused person/Appellant represented himself as a British businessman dealing in motor spare parts intending to have business partnership with one Pakawan Samneang, a woman from Thailand, who he obtained the sum of $45,000.00 twice and $60,000.00 upon false pretence. He claimed his operation was based in Malaysia. A petition against the Appellant was made to the Economic and Financial Crimes Commission (EFCC), who arrested the Appellant when he visited Nigeria from Malaysia. He was subsequently arraigned and prosecuted at the Federal High Court, Enugu, on amended eleven (11) count charge. At the conclusion of the trial, the learned trial judge found the Appellant guilty of the offences and sentenced him to seven (7) years imprisonment on each count, which sentences are to run concurrently. Aggrieved with the trial court’s decision, the Appellant appealed to the Court of Appeal, Enugu Division, which dismissed the appeal. The Appellant has further appealed to this court contending that the counts are unknown to law and the offence alleged under Section 6 of the Advance Fee Fraud and Other Related Offences Act, 2006, is not defined with prescribed penalty in utter derogation to section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999(as amended), which insists that offences ought to be defined and penalty prescribed.
HELD
Appeal Dismissed
ISSUES
Whether the teamed justices of the court below rightly affirmed the conviction and sentence of the appellant upon an 11 count charge of advance fee fraud and possession of scam documents when the said charge as laid did not disclose, offences cognizable under the law? Whether the learned justices of the court below rightly affirmed the conviction and sentence of the appellant on each of the eight (8) counts of possession of scam documents when there was no proof of receipt of the scam documents by those they were directed at? Whether the retracted confessional statement on the basis of which the appellant was convicted and sentenced by the trial court and affirmed by the court below was direct, positive and corroborated?
RATIONES DECIDENDI
NATIONAL ASSEMBLY – STATUTORY PROVISION ON THE POWER OF THE NATIONAL ASSEMBLY TO MAKE LAWS
“This Act is an Act of the National Assembly of the Federal Republic of Nigeria. Section 4(2) of the Constitution of the Federal Republic of Nigeria, 1999, (as amended) (“the Constitution” for short) provides, inter alia, as follows;
“The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof – with respect to any matter included in the- Exclusive Legislative List set -out in Part I of the Second Schedule to this Constitution.”
In Part II of the Second Schedule titled “Supplemental and Interpretation,” the National Assembly may make a declaration by an Act of the National Assembly. References to any incidental and supplementary matters include references to, among others, offences. This is an Act which was legislated to prohibit and punish certain offences pertaining to advance fee fraud and other fraud related offences and to repeal other Acts related therewith. Indeed Section 21(1) of the Act repealed the Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995, and the Advance Fee Fraud and Other Fraud Related Offences (Amendment) Act, 2005.”
SUPREMACY OF THE CONSTITUTION – SECTION 1 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“This Constitution is Supreme and its provisions shall s have binding force on all authorities and persons throughout the Federal Republic of Nigeria,” (Underlining for emphasis)
ENACTMENT – PURPOSE OF THE INTERPRETATION SECTION OF AN ENACTMENT
“My lords, the interpretation section of an enactment is the most effective in revealing the intention, aim or purpose of the legislators which they assign to a particular word/phrase as may appear in the body of the legislation”.
“OFFENCE” – DEFINITION OF AN “OFFENCE”
The Act has not defined the word “offence” but, ordinarily, it connotes on illegal act or a crime, Thus, in the realm of criminal law, an offence/offense, generally, is violation of law for which penalty is prescribed. It is an act clearly prohibited by the lawful authority, of the state. The Criminal Code Act, Cap. C38, Laws of the Federation, 2004, defines an offence to be an act or omission which renders the person doing the act or making the omission liable to punishment under any Act or law”.
“FALSE PRETENCE” – DEFINITION OF “FALSE PRETENCE”
“False pretence” has been defined by the Act to mean:,
“a representation, whether deliberate or reckless, made by word, in writing or by conduct of a matter of fad 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, The word “scam” on the hand, has not been employed by the Act and remained undefined therein,”
LEGISLATION – DUTY OF A COURT WHEN FACED WITH LACUNAE IN LEGISLATION
“It is elementary to remind your lordships that an Act is any law made by the National Assembly and includes any law which takes effect under the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Act under consideration is an existing law. This is one of the situations in which if a court of law when faced with what may appear to create a lacunae in a legislation, that court has to, of necessity, revert to the canon of interpretation of statutes. For instance, under the ejusdem generis Rule, construction of general words within the genus of special words which they follow in a statutory provision or in a document is normally resorted to. In other words, where there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, and that is said to be a question of assumed intention of the statutes see: Scales v Pickering (1828) 4 Bing; 448 at 452 – 453; Cooney v. Covell (.1901) 21 NZIe 106 at 108; Fawehinmi v. Inspector General of Police (2002) 7 NWLR (Pt.767) 606 at page 689”.
CHARGE – WHETHER THE OFFENCE AN ACCUSED PERSON IS CHARGED WITH IS UNKNOWN TO LAW WHERE A WRONG TERM IS EMPLOYED IN DRAFTING A CHARGE
“Therefore, I have no difficulty in accepting the submission of learned counsel for the respondent that the fact that the phrase “false pretence” was not employed in the drafting of the charge, the word “scam” can be accommodated in the phrase “false pretence”, or even substitute it as both “false pretence” and ”scam” relate to dishonest way of making money, Thus, the employment of the word “scam” in the charge instead of the phrase “false pretence” does not, in my view, make the offence with which the appellant was charged unknown to law. The offence is known and cognizable by the law”.
CHARGE – DUTY OF AN APPELLANT TO RAISE AN OBJECTION TO A CHARGE TIMEOUSLY WHERE HE DID NOT UNDERSTAND SAME
“Further, the appellant understood the charge and pleaded to same. He participated fully in the trial which led to his conviction and sentence. If the appellant did not understand the charge and the trial at the trial court, he would have raised an objection at the earliest opportunity. See Section 167 of the Criminal Procedure Code Act, Laws of the Federation Cap, 80, 2004; Adio v. State (1986) 3 NWLR (Pt.31) 714; Amadi v. FRN (2008) 18 NWLR (Pt. 119) 259; FRN v. Adewunmi (2007) 10 NWLR (Pt.1042) 399”.
OFFENCE OF OBTAINING BY FALSE PRETENCE – INGREDIENTS OF PROOF OF THE OFFENCE OF ATTEMPT TO OBTAIN PROPERTY BY FALSE PRETENCE
“My lords, I think without being unnecessarily verbos, there is need to set out the ingredients of proof of the offence of attempt to obtain property by false pretence as provided by Section 6 of the Act, which, in my view, applies mutatis mutandis to possession of Scam documents as the case, is in this appeal. Section 1 of the Act makes the following provisions;
1) “Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud –
a)obtains from any other person, in Nigeria or in any other country, for himself or any other person:
b)induces any other person, in Nigeria or in any other country, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induce by the false pretence, commits an offence under this Act.
2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.”
(See: Advance Fee Fraud and Other Related Offences Act, as contained in Cap.A6 Laws of the Federation of Nigeria, Vol. 1 – updated to the 31st day of December, 2010).
The prosecution has a duty to prove that:
1)there was a document
2)the document contains false pretence (scam)
3)the document was in possession of the accused person;
4)the accused person knows or had knowledge that the said document contains false pretence (scam) and
5) the document was received by the person to-whom it is directed.
See; Alake v. The State (1991) 7 NWLR (Pt. b 205)567; Amadi v. FRN (2008)18 NWLR (Pt. 1119) 259 at pages 277 -278.
CONFESSIONAL STATEMENT – PREREQUISITE FOR CONVICTING AN ACCUSED PERSON SOLELY ON HIS CONFESSIONAL STATEMENT
“My lords, it has been an established practice that an accused person(defendant) in a criminal trial can easily be convicted solely on his confessional statement if the prosecution can show that the confessional statement was made freely and voluntarily by the accused person to the satisfaction of the trial court. Omogu v. FRN (2008) 2 SCNJ 197; Kasa v. The State (2008) 2 SCNJ, 375”.
RETRACTION OF CONFESSIONAL STATEMENT – WHETHER A RETRACTION OF CONFESSIONAL STATEMENT BY AN ACCUSED PERSON CAN RENDER THE STATEMENT INADMISSIBLE
“However, where the accused person retracts his confessional statement during trial, that alone cannot render the statement inadmissible. This is because retraction of or resiling from a confessional statement or denial by an accused person of his having made such a statement doest not IPSO FACTO render it inadmissible in evidence see: R. v Itule (1961)All NLR 462;R. V Sapele & Anor (1957) 2 FSC 24; Egboghonome v. The State (1983) 7 NWLR (Pt.306) 383 at p.431; Bature v. The State (1994) 1 NWLR (Pt.320) 267; Alarape v. The State (2001) 5 NWLR (Pt.205) 79”.
CONFESSIONAL STATEMENT – NATURE OF CONFESSIONAL STATEMENT SUFFICIENT TO SUSTAIN A CONVICTION
“Thus a confessional statement, so long as it is free and voluntary and it is direct, positive and properly proved, is enough to sustain a conviction. The trial court should not, however, act on the confession without first testing the truth thereof. See: Jafiya Kopa v. The State (1971) 1 All NLR 150; Jimoh Yesufu v The State (1976) 6 SC 167; Obose v. The State (1965) NMLR 119; R. v Omokaru (1941) 7 WACA 146. But so long as the court is satisfied with its truth a confessional statement alone is sufficient to ground and support a conviction without corroboration. R. Sykes (1913) 8 CAR 233; Obosi v. The State (supra); Yesufu v. The State (supra)”.
CONFESSIONAL STATEMENT – TEST FOR DETERMINING THE VERACITY OR OTHERWISE OF CONFESSIONAL STATEMENT
The test, however, for determining the veracity or otherwise of a confessional statement is to look for any other evidence be” it slight, or circumstances which make if probable that the confession is true. In R. V. Sykes (1913) 8 CAR 233 at 236, Ridly, J, suggested the tests to be applied on an accused person’s confessional statement in the determination of its veracity to included:
Whether there is anything outside the confession to show that it is true,
Whether the statement is corroborated, no matter how slight.
Whether the facts contained therein, so far as can be tested, are true.
Whether the accused person had the opportunity of committing the offence.
Whether the confession was consistent with other facts which have been ascertained and proved in the matter.
Whether the confession of the accused person was possible.
The above tests have been accepted and consistently applied by this court over a long period of time in a number of cases. See: Ikonsa v. Attorney-General of Bendel State (1981) 9 SC 7; Onochie v. The Republic (1966) NMLR 307; Akpan v. The State (1992) 6 NWLR (Pt.248)439 at 460”.
RIGHT TO FAIR HEARING – CONSTITUTIONAL SAFEGUARDS ON THE RIGHT TO FAIR HEARING
“The right to fair hearing is a right guaranteed under the Constitution of the Federal Republic of Nigeria. Under this right, there are some constitutional safeguards put, in -place in furtherance of the right. Such safeguards are:-
1.The right against retrospective criminal legislation, (Section 36(8)).
2.The right not to be tried for an offence unknown to law (section 36(12)”.
‘SCAM’ – DEFINITION OF THE WORD ‘SCAM’
The word ‘scam’ which is a slang of unknown origin is defined as ‘confidence trick’ or ‘swindle’. And the word ‘swindle’ is defined as “to cheat”, “a fraud” “anything not really what it appears to be”. See: Chambers 20th Century Dictionary New Edition 1983 edited by E. M. Kirkpatrick page 1307”.
INDICTMENT – GROUND UPON WHICH AN INDICTMENT MAY FAIL
“An indictment charging a statutory offence need not exactly track the statutory language, provided it alleges the essential elements of the crime charged. If the words of the statute do not unambiguously set out all the elements of the offence, the indictment must supplement the statutory language. An indictment may fail when there is a fatal variance between its allegation and the evidence introduced at trial. In order for a variance to be fatal it must pertain to an essential element of the crime charged. See”: Federal-Republic of Nigeria v. Daniel (2012) 4 NWLR (Pt. 1289) 40”.
CHARGE – PURPOSE OF A CHARGE
“The main purpose of a charge is to give the accused person sufficient notice of the case against him, and once the charge discloses an offence with the necessary particulars that should be brought to his attention, in order to avoid his being prejudiced or embarrassed such a charge will be good in law, See: Akang v. State (1971) NSCC Vol. 7. 55: Ozo v. State(1971) NSCC Vol. 7, 101; Onyekwe v. State (1988) 1 NWLR (Pt. 72) 565: Njoku v. State (1993) 6 NWLR (Pt.299) 272: Olatunbosun V. State (2013) 17 NWLR (Pt. 1382) 167”.
CASES CITED
STATUTES REFERRED TO
Advance Fee Fraud and Other Related Offences Act, 2006
Constitution of the Federal Republic of Nigeria, 1999 (as amended)
Criminal Code Act, Cap. C38, Laws of the Federation, 2004
