SADE OTENUGA V THE INSPECTOR-GENERAL OF POLICE

Legalpedia Citation: (2023-08) Legalpedia 88587 (CA)

In the Court of Appeal

Holden At Ado-Ekiti

Thu Aug 31, 2023

Suit Number: CA/EK/80C/2022

CORAM

Isaiah Olufemi Akeju JCA

Abubakar Muazu Lamido JCA

Olabode Abimbola Adegbehingbe JCA

PARTIES

SADE OTENUGA

APPELLANTS

THE INSPECTOR-GENERAL OF POLICE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, LAND LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

In a bid to purchase a parcel of land at Dallimore Street Ado Ekiti occupied by a dilapidated building, PW1, a Pastor, contacted a woman on phone offering to purchase the property, under the mistaken belief that the woman he spoke to was the owner of the property. He was given the number of the said owner by Baba Aseye and he called her on Phone and discussed and agreed on a price of Nine Hundred Thousand Naira (N900,000.00) only.

The agent gave him phone number 08095491240 to contact and make payment to the owner of the number, but he mistakenly called 08095461240 in which the person happened to be a woman also. She played along and sent her account number 3084404359 First Bank, with account name Arowobusoye Omolola and PW1 paid the sum of Six Hundred and Twenty Thousand (N620,000) only into the said bank account.

He later got to know that she was the wrong person and she did not deny receiving the money initially but later proved she would not refund the money. PW1 wrote a petition to the police.

The lower Court found the appellant guilty on the two counts and sentenced her accordingly.This appeal is the manifestation of the angst of the appellant for the treatment she received in the judgment of the lower Court.

HELD

Appeal dismissed

ISSUES

Whether the learned trial Judge was right in convicting and sentencing the appellant for two alternative offences of obtaining by false pretence and stealing?

Whether the learned trial Judge was right when he held that the prosecution proved the offence of obtaining by false pretence beyond reasonable doubt against the appellant?

Whether the learned trial Judge was right when he held that the prosecution proved the offence of stealing beyond reasonable doubt against the appellant?

RATIONES DECIDENDI

PROOF – WAYS TO PROVE THE GUILT OF THE DEFENDANT

When a person is charged for committing an offence, there are, at least, three ways to prove the ingredients of the offence and the guilt of the defendant. The guilt of a defendant may be proved by:

confessional statement; or

circumstantial evidence; or

evidence of eye witnesses.

See Emeka v. The State [2001] 14 NWLR (Pt. 734) 666 at 683. – Per I. O. Akeju, JCA

BURDEN OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

Section 135 of the Evidence Act, 2011 demands or prescribes that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of the Evidence Act, 2011, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant. – Per I. O. Akeju, JCA

PROOF – DUTY OF THE PROSECUTION TO STRICTLY PROOVE THE ELEMENTS OF AN OFFENCE

The law is also settled that when certain elements go to constitute an offence, they must be strictly proved and the Court cannot take judicial notice of such facts or actions on its own private knowledge. It will therefore be wrong for the Court – in the absence of proof of an ingredient of an offence, to proceed to conviction. See Cyril Areh v. Commissioner of Police [1959] WRNLR 230 and Yongo v. Commissioner of Police [2007] All FWLR (Pt. 376) 636 at 651. The verdict of guilt on a suspect can only be sustained upon evidence which establishes beyond reasonable doubt the guilt. Where there is the slightest doubt in the evidence so adduced as to the guilt of the suspect, that doubt must be resolved in his favour. See Shekete v. Nigerian Air Force [2000] 15 NWLR (Pt. 692) 868 at 880-881. – Per I. O. Akeju, JCA

APPEAL – CONDUCT OF APPELLATE COURTS WHEN FRESH ISSUES ARE RAISED ON APPEAL

It is apparent that the first issue was not presented to the lower Court for its view or decision.

Thus, the first issue, which could have been argued in the lower Court, is coming up for the first time in this Court, without the appellant having sought and obtained prior leave of the Court to do so. The first issue for determination is incompetent for that deficiency. See Nyako v. A. S. H. A. [2017] 6 NWLR (Pt. 1562) 347 at 377 and Wowem v. State [2021] 9 NWLR (Pt. 1781) 295. In the circumstance, I hereby decline to determine a fresh issue in the appeal, without prior leave of Court first sought and obtained. – Per I. O. Akeju, JCA

OFFENCES – INSTANCES WHERE OFFENCES MAY BE CHARGED AND TRIED TOGETHER

For the record, Section 153(ii) & (ii) of the ACJL, 2014 of Ekiti State permits the two counts charged together and the conviction and sentence of the appellant thereon by the lower Court.

The section provides as follows:

“153. Offences may be charged and tried together as the Court may deem fit in the following circumstances

…

(ii) any number of the same type of offence committed by a person; or

(iii) any number of offences committed by a person in the course of the same transaction having regard to proximity of time and place, continuity of action and community of purpose.”

(Bold font for emphasis) The offences charged in the case on appeal were committed during the same transaction. It should be stated that the case of Nnakwe v. State [2013] 18 NWLR (Pt. 1385) 1 at 29-30 confirms that if a series of acts so connected together as to form the same transaction is alleged, the accused may be charged with and tried at one trial for every offence which he would have committed if all such acts or one or more of them without the rest were proved. – Per I. O. Akeju, JCA

APPEAL – WHEN THE ISSUE FOR DETERMINATION IS INCONSISTENT WITH THE GROUND OF APPEAL

…the appellant’s argument of the issue overshot the ground of appeal filed. This Court is not an editor of issues or grounds of appeal. The issue for determination is inconsistent with the ground from which it was derived and it is therefore incompetent. – Per I. O. Akeju, JCA

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

If the issue will be determined, for the record, the case of Ezerike v. State [2023] 7 NWLR (Pt. 1883) 207 at 235-236 reiterated that in order to succeed in proving the offence of obtaining money by false pretence, contrary to Section 1(3) of the Advance Fee Fraud and related Offences Act, the following ingredients must be established and proved by the prosecution:

That the appellant made a false representation to the victim with the intent to defraud her.

That the pretence or representation was false to the knowledge of the appellant.

That the false pretence or representation made by the appellant to the victim was indeed false.

That the false pretence or representation operated in the mind of the unsuspecting victim.

In the case of Duru v. State [2018] 12 NWLR (Pt. 1632) 20 at 43-44, the Court enumerated the ingredients of the offence of obtaining by false pretence, as follows:

That there was a pretence;

That the pretence emanated from the accused person;

That it was false;

That the accused person knew of its falsity or did not believe in its truth;

That there was an intention to defraud;

That the thing is capable of being stolen; and

That the accused person induced the owner to transfer his whole interest in the property. –Per I. O. Akeju, JCA

FALSE PRETENSE – MEANING OF FALSE PRETENSE

By virtue of Section 20 of the Advance Fee Fraud and Other Related Offences Act, “false pretence” means a representation whether deliberate or reckless, made by word, in writing, or by conduct, of a fact 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. – Per I. O. Akeju, JCA

CONVERSION – MEANING OF CONVERSION AND WHAT CONSTITUTES CONVERSION

Section 383(2)(f) of the Criminal Code Law of Ekiti State provides that a person who fraudulently takes or converts anything capable of being stolen is deemed to do so with an intent to, in the case of money, to use it at the will of the person who takes or converts it, although he may intend afterward to repay the amount to the owner. Section 383(4) of the Law provides that in the case of conversion it is immaterial whether the thing converted is taken for the purpose of conversion, or whether it is at the time of conversion in the possession of the person who converts it. It is also immaterial that the person who converts the property is the holder of a power of attorney for the disposition of it or is otherwise authorised to dispose of the property. – Per I. O. Akeju, JCA

STEALING AND CONVERSION – MEANING OF STEALING AND CONVERSION

Under Section 383(1) of the Criminal Code the fraudulent taking of money from someone is stealing and the fraudulent conversion of money to the use of the taker or to the use of any other person is also stealing. What is essential in both cases is that the taking or the conversion must be fraudulent.

Dealing with goods in a manner inconsistent with the right of the true owner amounts to conversion, if it is also established that there is also an intention on the part of the defendant in so doing to deny the owner’s right or to assert a right which is inconsistent with the owner’s right… This, therefore, amounts to conversion and it is immaterial whether, as in this case, the thing converted is, at the time of commission, in the possession of the appellant who converted it. See Ajiboye v. State [1994] 8 NWLR (Pt. 364) 587. – Per I. O. Akeju, JCA

CONFESSION – MEANING OF CONFESSION

Exhibit 4 is a confessional statement from the appellant, which was tendered at the trial, without objection. The lower Court was entitled to act on it. Section 28 of the Evidence Act, 2011 provides that: “28. 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.”

(Bold font for emphasis) It should be noted that the law, as crafted or worded in Section 28 of the Criminal Code Law of Ekiti State, allows that the Court may hold that there is confession, which was definite or make a deduction by inferring from a statement that there was a confession. That is the implication of the phrase “or suggesting the inference”. – Per I. O. Akeju, JCA

JUDGMENT – WHEN A MISTAKE OR ERROR IN A TRIAL COURTS JUDGMENT IS IMMATERIAL

In sum, it is not every mistake by a trial Court in its judgment that will vitiate the said judgment. In other words, a mistake or error in a judgment is immaterial. It is only where the error is substantial, in that it has occasioned a miscarriage of justice or injustice has resulted that the appellate Court is bound to interfere. See Tanko v. State [2009] 4 NWLR (Pt. 1131) 430 at 473- 474. – Per I. O. Akeju, JCA

JURISDICTION – WHETHER A COURT IN THE PLACE AN ELEMENT OF AN OFFENCE OCCURS HAS JURISDICTION

Once an element of an offence occurs in a particular place, the Court in that place will have jurisdiction to try the offence. SeeNjovens v. State (1973) 5 SC 17. – Per I. O. Akeju, JCA