ENNIS OLAYINKA SUNDAY V FEDERAL REPUBLIC OF NIGERIA

CORAM

Yargata Byenchit Nimpar -Justice of the Court of Appeal

Binta Fatima Zubairu -Justice of the Court of Appeal

Uwabunkeonye Onwosi -Justice of the Court of Appeal

PARTIES

ENNIS OLAYINKA SUNDAY

APPELLANTS 

FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW AND PROCEDURE, EVIDENCE, CONSTITUTIONAL LAW, APPEAL, CONTRACT LAW, COMMERCIAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

This appeal arose from the judgment of the High Court of Justice, Oyo State, sitting at Ibadan, delivered by Honorable Justice M. L. Owolabi on December 18, 2020, in Suit No: 1/1EFCC/2019. In that judgment, the trial Court convicted and sentenced the Appellant to seven years imprisonment on a lone count charge of obtaining money by false pretense.

The facts reveal that PW1 collected part payment of his gratuity worth N1,000,000.00 (One Million Naira) in 2016. The Appellant, aware of this money, approached PW1 to invest in his engine oil business with a promise of monthly interest. An agreement (Exhibit A) was entered into, and PW1 transferred N1,000,000.00 to the Appellant for investment in the oil business.

The prosecution’s case was that immediately after receiving the money, the Appellant transferred it to one David Erhimu, to whom he was indebted, rather than investing it in the engine oil business as agreed. The Appellant admitted owing David Erhimu N1,500,000.00 but claimed he transferred PW1’s N1,000,000.00 to David Erhimu as part payment to enable him access N4,000,000.00 worth of oil to reinvigorate his business.

The Appellant initially paid interest to PW1 but later defaulted on both principal and interest payments. When PW1 demanded repayment, the Appellant was unable to pay, leading to his prosecution for obtaining money by false pretense.

During the trial, the prosecution called two witnesses and tendered seven exhibits, while the Appellant testified for himself as DW1, and his wife testified as DW2. The trial Court convicted the Appellant, and being dissatisfied, he appealed to the Court of Appeal.

HELD

1.The appeal was allowed.

2.The judgment of the High Court of Justice, Oyo State, sitting at Ibadan, delivered by Honorable Justice M. L. Owolabi in Suit No: 1/1EFCC/2019, wherein the trial Court convicted and sentenced the Appellant, was set aside.

3.A verdict of discharge and acquittal was returned in favor of the Appellant.

4.The Court held that the transaction between the Appellant and PW1 was purely commercial and business in nature, and failure of return on investment as anticipated in a business transaction cannot change the character of the business to a criminal offense.

5.The Court found that the prosecution failed to prove all the ingredients of the offense of obtaining money by false pretense beyond reasonable doubt.

6.The Court also found that the failure of the prosecution to call vital witnesses, particularly David Erhimu, was fatal to the prosecution’s case.

ISSUES

1.Whether the Prosecution proved its case beyond reasonable doubt against the Appellant.?

2.Whether failure of the prosecution to call Mr. David Erhimu as witness to corroborate or deny the position of the Appellant is fatal to the case of the prosecution.?

RATIONES DECIDENDI

ELEMENTS OF OBTAINING BY FALSE PRETENSE – ESSENTIAL INGREDIENTS TO BE PROVEN BEYOND REASONABLE DOUBT:

“… the ingredients of the said offence of obtaining property by false pretence, which is that – (a) A pretence was made by the Accused person; (b) The pretence was false; (c) The Accused knew the pretence to be false or did not believe it to be true. (d) The pretence operated on the mind of the person from whom the property was obtained; and (e) Some property must have been obtained as a result of the pretence.” – Per UWABUNKEONYE ONWOSI, J.C.A

STANDARD OF PROOF IN CRIMINAL CASES – BEYOND REASONABLE DOUBT:

“In criminal cases, the burden of proof is on the prosecution and the standard is beyond reasonable doubt. See HAMIDU V. FRN (2022) LPELR – 57760 (CA), SULE V. STATE (2017) LPEER – 47016 (SC) and ADAMU V. FRN (2021) LPELR 54598 (CA).” – Per UWABUNKEONYE ONWOSI, J.C.A

MEANING OF PROOF BEYOND REASONABLE DOUBT – ESTABLISHMENT OF GUILT WITH COMPELLING EVIDENCE:

“that proof beyond reasonable doubt does not mean proof beyond all doubts or all shadow of doubt it simply means establishing the guilt of the accused person with compelling and conclusive evidence, where all the essential ingredients of the offense charged had been proved or established by the prosecution the charge is proved beyond reasonable doubt.” – Per UWABUNKEONYE ONWOSI, J.C.A

BUSINESS TRANSACTIONS AND CRIMINALITY – DISTINCTION BETWEEN CIVIL AND CRIMINAL MATTERS:

“From the facts and circumstances of this case, it was purely commercial and business transaction as evidenced in the agreement between the Appellant and the respondent; and cannot be said to be a representation in pretence that was false, which the Appellant did not believe to be true. And that N1,000,000.00 was obtained as a result of the pretence, as argued by Appellant’s Counsel. There is nothing to show that the Appellant was not in the business of the oil as agreed with the Respondent. In the offence of false pretence, the prosecution must prove that the accused had intention to defraud. Failure of return on investment as anticipated in a business transaction cannot change the character of the business to a criminal offence, where there is none.” – Per UWABUNKEONYE ONWOSI, J.C.A

MISUSE OF CRIMINAL LAW FOR CIVIL DISPUTES – DEPRECATION OF ABUSE OF STATE INSTRUMENTS:

“My Lords, the misuse of the criminal law machinery for getting reliefs in disputes that are civil in nature, by using the instruments of State has become dangerously rampant in recent times. This practice leads to vexatious and oppressive litigation and is contrary to Sec. 36(12) of the 1999 Constitution (as amended). The rule of law allows everyone with a legitimate cause or grievance to avail remedies available in criminal law. However, a complainant who initiates a prosecution with the knowledge that criminal proceedings are unwarranted and the remedy lies in the civil law, should be made accountable in law for pursuing misconceived criminal proceedings.” – Per UWABUNKEONYE ONWOSI, J.C.A

CONVERSION OF CIVIL DISPUTES TO CRIMINAL CASES – JUDICIAL DISAPPROVAL:

“My Lords, I would strongly deprecate the initiation of false criminal proceedings in cases having the elements of a civil dispute. The quick relief offered by a criminal prosecution as opposed to a civil dispute incentivizes the litigant to initiate false and vexatious proceedings. My Lords, it is necessary to take notice of a growing tendency in business circles to convert purely civil disputes into criminal cases. This is obviously on account of a prevalent impression that civil law remedies are time consuming and do not adequately protect the interests of lenders/creditors.” – Per UWABUNKEONYE ONWOSI, J.C.A

DUTY OF PROSECUTION TO CALL WITNESSES – PROOF BEYOND REASONABLE DOUBT:

“In law, the prosecution only has a duty to call witnesses to establish its case beyond reasonable doubt. See The State v Azeez (2008)4 SC 188, 209; [2008] 4 SCNJ 325, 343-344; (2008) LPELR – 3215 (SC) 20; Oluwatoba v The State [1985] 1 NSCC 306. Therefore, the Prosecution is not required to call any particular number of witnesses or a host of witnesses. All he needs to do is to call enough material witnesses to satisfy the burden of proof. Therefore, where the Prosecution fails to call a particular witness and the defendant deems his evidence crucial to his case, he is at liberty to call that witness himself.” – Per UWABUNKEONYE ONWOSI, J.C.A

VITAL WITNESSES – EFFECT OF FAILURE TO CALL:

“A vital witness is a witness, whose evidence may determine the case one way or the other, and failure to call him is fatal to the Prosecution’s case. Onah V. State (1985) 3 NWLR (Pt. 12) 236 SC.” – Per UWABUNKEONYE ONWOSI, J.C.A

ITAL EVIDENCE – DEFINITION AND IMPORTANCE:

“A vital evidence is evidence that goes to the root of the ingredients and element of the offence with which the Defendant is charged. See SHURUMO v. STATE (2010) 19 NWLR (Pt. 122673) Pg. 94, paras. B. See STATE V. ALIYU (2022) LPELR 59477 (SC) (PP. 8 PARAS. E).” – Per UWABUNKEONYE ONWOSI, J.C.A

PROSECUTION’S DUTY REGARDING VITAL WITNESSES – CONSEQUENCE OF FAILURE:

“The prosecution, in order to secure a conviction, must prove all the elements of the offence as contained in the charge beyond reasonable doubt. Although not required to call a host of witnesses, the prosecution must call such witnesses as would be necessary to discharge the burden of proof. See Nwaturuocha Vs. The State (2011) LPELR-8119 (SC) @ 15-16 F – C, People of Lagos State Vs Umaru (2014) 7 NWLR (Pt.1407) 584, Obiakor Vs The State (2002) LPELR – 2168 (SC) @ 11-12 F- A.” – Per UWABUNKEONYE ONWOSI, J.C.A

FAILURE TO CALL VITAL WITNESSES – FATAL EFFECT ON PROSECUTION’S CASE:

“Whilst the law is settled that it is not every available witness that must be called to testify in a case in so far as those who testify are able to establish the case being made out by a party, the converse is also true that failure or neglect to call a vital or material witness to testify would be fatal to the party’s case: FRAMO NIGERIA LTD v SHAIBU DAOUDU [1993] NWLR (PT 281) 372, MUSA OMIKA v ALHAJI MALLAM UBA ISAH (2011) LPELR-4564(CA) and A-G, KWARA & ANOR v ALAO & ANOR (2000) LPELR-10457(CA) 1 at 21 – 22.” – Per UWABUNKEONYE ONWOSI, J.C.A

DEFINITION OF VITAL WITNESS – DETERMINATIVE EVIDENCE:

“A vital witness is one whose evidence may determine the case one way or the other. OMOGODO v THE STATE (1981) 5 SC 5 and EMMANUEL OCHIBA v THE STATE [2011] 17 NWLR (PT 1277) 663 at 696.” – Per UWABUNKEONYE ONWOSI, J.C.A

BUSINESS TRANSACTIONS AND CRIMINAL LIABILITY – FAILURE OF RETURN ON INVESTMENT:

“In the instant appeal, failure of return on investment anticipated in the business transaction couldn’t have changed the character of the business to a criminal offence of obtaining money by false pretense. The evidence adduced during trial did not establish all the ingredients of the offence against the Appellant in such a way that a reasonable man will draw conclusion that the case against the Appellant was proven.” – Per BINTA FATIMA ZUBAIRU, J.C.A

CASES CITED

STATUTES REFERRED TO

• Section 20 of the Advance Fee Fraud and Other Fraud Related Offences Act

• Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)

• Section 3 of the Merchandise Marks Act

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