IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT 31 (CRIMINAL DIVISION)
BEFORE HON. JUSTICE M.O. OBADINA (MRS)
TODAY TUESDAY THE 19TH DAY OF FEBRUARY 2008
BETWEEN: FEDERAL REPUBLIC OF NIGERIA PROSECUTION
AND
UCHE CHIDOZIE HENRY ACCUSED
JUDGEMENT
CONTINUED FROM LAST WEEK…
Continuing in his address prosecution counsel argued that there
are three ways by which commission of crime can be proved.
These are:
1 By confessional statement.
2 By circumstantial evidence
3. By evidence of eye witnesses.
He cited the case of Emeka V State (2001) NWLR (Pt. 734), 667.
He submitted that in this case, there is circumstantial evidence pointing irresistibly to the fact that the accused person was acting jointly with Kofi and Pastor Emmanuel if he is not the said Kofi. He referred to Section 8 of the Criminal Code and submitted that the accused person and Pastor Emmanuel had a common intent to prosecute an unlawful purpose. He cited the cases of Akinkunmi V State (1987) 1 NWLR (Pt, 52) 608, Agwuna V Attorney General of the Federation (1995) 5 NWLR (Pt. 396) 418, Aminu V State (2005) 2 NWLR (Pt. 909) 180, State V Oladimeji (2003) 14 NWLR (Pt. 839) 59.
He submitted that there were representations made to Abbey Abraham by the accused person which representation acted upon the mind of the victim and also on Intercontinental Bank which released the money. Without the representation of the accused person and his brother he submitted, the victim Abbey Abraham would not have released the money.
On the count of conspiracy, he submitted that even if the accused person was not part of the initial scheme, it will not make any difference because he joined the scheme later and this makes him accountable as a conspirator. He cited the cases of Haruna V State & 7 Ors (1972) 7 NSCC 550, Mumuni & Ors V State (1975) A!I NLR 295, Oluchi V The Republic (1966) NMLR 307.
On counts 4 and 5, learned counsel referred to the ingredients of the offence of receiving stolen property referred to by Justice E. 0. Fakayode in his book Criminal Code Companion 2nd Edition 1985 and the case of State V Nnolie (1995) 5 NWLR (Pt. 345) 394.
He submitted that these counts were established because the accused person received the $16,000 proceeds of the fraud knowing that the money was fraudulently obtained by his brother. This guilty knowledge makes him liable.
He urged the court to convict him as charged.
In his reply submission, defence counsel argued that the totality of the so-called evidence of the prosecution is hinged on the email of Abbey Abraham to Intercontinental Bank which is hearsay evidence and inadmissible and should be discountenanced by this court.
The first issue to determine is whether the charge as framed is bad for duplicity.
Section l56 of the Criminal Procedure Law Cap CIS Laws of Lagos State, 2003 provides:
‘156 For every distinct offence with which any person is accused, there shall be a separate charge and every such charge shall be tried separately except in cases mentioned in Sections 157 to 161 of this Act"
Section 156(1) provides:-
‘156(1) The charge shall contain such particulars as to the time and place of the offence and the person, If any, against whom or the thing, if any, in respect of which it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged."
The evidence led at this trial is that the accused person received the sum of $16,000 sent through Intercontinental Bank Plc. $8,000 was paid directly into his account while the second $8,000 was paid into the account of PW4 which he later received from PW4. If the prosecution wanted to capture how the two tranches of $8,000 were received, the particulars of offence of Count 3 should have indicated the name of PW4 for clarity. As the charge stands, counts 2 and 3 which are exactly the same in word and content allege the same thing and therefore bad for duplicity.
It is not all cases that a charge which is bad for duplicity is fatal to to prosecution's case. It wilt be fatal if it is shown that the accused person was prejudiced or misled by the defect in the charge. It is then the court will hold that convicting him on the defective charge will occasion a miscarriage of justice. Onakoya V Federal Republic of Nigeria (2002) 11 NWLR (Pt. 779) 595. In this case, from the proceedings, there is no basis for a finding that the accused person was misled by the charges as framed or that he suffered any prejudice.
I now go to the substance of this case.
It is a settled principle of law that the prosecution has a duty to prove the case against an accused person beyond reasonable doubt and this duty never shifts. Amala V State (2004) 12 NWLR (Pt. 888) 520.
Proof beyond reasonable doubt means no more than proof of all the essential elements of the offence. State V Bakare (1987) 1NWLR (Pt. 52) 579; Nwankwo V Federal Republic of Nigeria (2003) 4 NWLR (Pt. 809) 1.
The first Count in this information is conspiracy. As defined by prosecution counsel, conspiracy is an agreement between two or more persons to do an illegal act or to do a legal act by illegal means. The offence is complete once the plot is formed even if nothing further is done or the parties had no opportunity to commit the offence. Waziri V State (1997) 3 NWLR (Pt. 496) 689. Proof of the existence of conspiracy is generally a matter of inference deduced from certain acts of the accused done in pursuance of the criminal purpose. Nwankwo V Federal Republic of Nigeria (supra).
In this case, the prosecution sought to establish the count of conspiracy by the overt act of the accused i.e. the collection of the $16,000 from the Bank.
I will therefore first deal with the substantive charges before returning to the count of conspiracy. Amachree V Nigerian
Army (2003) 3 NWLR (Pt. 807) 256 at 274 supports this procedure.
The ingredients or essential elements to be established in a case of obtaining by false pretences were stated by Niki Tobi JCA (as he then was) in the case of Alake V State (1991) 7 NWLR (Pt. 205) 567 at 591. Inter alia;
1 That there is a pretence.
2. That the pretence emanated from the accused person.
3. That it was false
4. That the accused knew of its falsity or did not believe in its truth.
5. That there was an intention to defraud.
6. That the thing is capable of being stolen.
In the case of State V Nwokedi (1977) 3 SC 35, the Supreme Court also fisted the ingredients to be proved as follows:-
1. The representation made by the accused was false to his knowledge.
2. The representation made by the accused is one that induced the victim to part with his money.
3. The accused obtained property in the money or goods for himself and did not have possession on behalf of another.
What was the pretence or the representation that the accused made to Abbey Abraham that made him to send the $16,OOO?
The evidence of the prosecution in this trial is that the representation to Abbey Abraham was from the brother of the accused person Uche Chidiebere Emmanuel Obinna.
The evidence cross-examination testified that the said Abbey Abraham is one of the customers of Intercontinental Bank and he sent an e-mail to the Bank that one Pastor Emmanuel who he met in Togo told him he runs a charity organisation, an orphanage in Nigeria and that he will need assistance and that if he is to send money to Nigeria, there are two EFCC agents who wilt assist. That the 2 agents are the accused person and Njoku Onyebuchi (PW4).
The testimony of PW1 is said to be contained in the e-mail of Abbey Abraham Exhibit P18 (iii-iv). This e-mail is the genesis of this case and very material. In the first place contrary to the evidence of PW1, Abbey Abraham did not say in Exhibit P18 (iii- iv) that he is a customer of Intercontinental Bank neither did PW2 and PW3 staff of the Bank say so. The e-mail header is not shown in the exhibit, only the attached message. The e-mail address of sender Abbey Abraham is not on Exhibit P18 (iii-iv). PW2 and PW3 said the mail came via their website but this does not explain why the e-mail address of the sender is not shown.
Contrary to the evidence of PW1 under cross-examination where he attempted to give oral evidence of the content of a written document which is not allowed in law thereby contradicting himself. Abbey Abraham said he met the so called Pastor Emmanuel online not in Togo. Abbey stated that the representation was made to him by Pastor Emmanuel which made him to send the $16,000 to the accounts of Uche Henry the accused and Onyebuchi Njoku PW4. Abbey gave his phone number and referred to his e-mail address which I believe the bank had through the website message.
The EFCC did not produce any evidence before this court that they contacted Abbey Abraham and he gave details of the representation made by the accused person to him. No e-mail correspondence between the EFCC and Abbey Abraham or between Abbey and the accused were tendered. When asked under cross-examination whether the EFCC contacted Abbey at all, PW1 said that they called his number and their messages went to the answering machine. The man never contacted EFCC. The interesting thing however is that Abbey continued to communicate with the bank asking for progress reports on the case. Exhibit D3 is the response of PW3 to inquiry of Abbey Abraham. The investigation of the EFCC was limited to the bank. No wonder PW1 said under cross-examination that the victim of the offence was Intercontinental Bank not Abbey Abraham.
There is no evidence before this court from the alleged victim showing the representation made by the accused person. What about the contents of the e-mail box of the accused person?
Under cross-examination, PW1 said the accused person supplied his e-mail address but not his password. He was shown the statement of the accused Exhibit P9 under cross-examination where both the e-mail address and password were stated. The evidence of the accused person is that his e-mail box was assessed both at Intercontinental Bank headquarters where he was first investigated and at the EFCC and no incriminating mail was found.
The pretence stated in Counts 2 and 3 is that the accused person and Uche Chidiebere Emmanuel Obinna at large obtained the stated sums by stating that the money was demanded as gratification by three EFCC agents and the Governor of the Central Bank of Nigeria to facilitate the release of certain money from a bank to Abbey Abraham's Charity Organisation. This pretence was not proved against the accused person.
Where there is no direct evidence of the representation made by an accused person in a charge of obtaining by false pretences, the accused person can still be liable under Section 7 of the Criminal Code as a principal offender if it is proved that he aided other accused persons who made the representation. Akran V I. G. P (1960) NSCC (Vol 1) 2.
Section 7(b-c) of the Criminal Code Cap C 17 Laws of Lagos State 2003, provides:
‘7(a) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -
(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.
(c) every person who aids another person in committing the offence."
In the case of Sunday lyaro V State (1999) 1 NWLR (Pt. 69) 259, the Supreme Court held that to secure a conviction under Section 7 of the Criminal Code, it must be proved that either prior to or at the time of commission of the offence, the person charged did something to facilitate its commission.
The aid which is given to the principal offender must take place before or at the time of the commission of the crime and not after.
R V Enweonye & Ors (1955) 15 WACA 1.
Aiding and abetting is a case of specific intent. A person possesses the mental element when at the time of aiding the principal offender he:
(a) knows that the principal offender is committing or will possibly commit the actus reus of the crime in question
(b) intends or at least knows that his or her conduct will assist or encourage the principal's commission of this actus reus and
(c) Knows or believes that the actus reus is being committed.
See Peter Gillies: Secondary Offences and Conspiracy Criminal Law Journal Vol. 15 1991. See also DPP for Northern Ireland V Lynch (1975) A. C. 653.
Is there any evidence on record of any act of the accused which aide or facilitated the commission of this offence?
Does the fact that he supplied his account number and that of his friend to his brother amount to aiding or facilitating or assisting the commission of the offence?
The accused person gave evidence of how the money got into his account and what the money was meant for. The investigators found out that his story that his brother sent the money for him to give their parents was true because the money was traced to his fathers account at First Bank Plc, Onitsha branch less the N600,000 he said he borrowed from his father for his business. PW4 a prosecution witness corroborated this story saying he was present when Emmanuel Obinna called the accused person that he should forward his account number to him. Also, that they both dictated their account numbers on phone to Obinna.
It was shown at the trial also that the accused person and PW4 were regular customers of Intercontinental Bank and had been operating their accounts prior to the lodgment of the $16, 000. PW2 said under cross-examination that the lodgments were not unusual else they would have queried the transfer. Also, they were gainfully employed. Their shops were next door to the bank. After collecting the money, they did not disappear. They were arrested right in their shops. I agree with defence counsel that these acts do not portray the accused person and PW4 as criminals.
Since the prosecution was unable to establish that the false representation that proceeded from the brother of the accused person was facilitated by him and this representation was what made Abbey Abraham to send the money to Nigeria, I hold that the most important ingredient for the offence of obtaining under false pretences is not proved. The accused person cannot be held liable for the acts and omissions of his brother. The accused person is not guilty of Count 2 and not guilty of Count 3.
I now return to the count of conspiracy.
The allegation is that the accused person conspired with his brother Chidiebere Emmanuel Obinna to obtain the sum of $8, 000 by false pretences. As defence counsel rightly pointed out, if the accused person is alleged to have obtained $16,000 in two tranches of $8000, the second $8000 coming through his friend's account, how come the conspiracy is in respect of only $8000? This is a grave error on the part of the prosecution.
Can the court make a finding in respect of $8000 when the amount involved is $16,000? The court has no power to severe the amount involved and make a finding only in respect of the $8,000 credited directly to the account of the accused person when PW4 is not an accused person in this case.
Can a man conspire to obtain an amount less than the actual amount received? What this count is alleging is that Uche Henry and Uche Chidiebere formed an agreement to obtain $8,000 from Abbey Abraham by false pretences whereas the amount Abbey
Abraham said he was defrauded is $16, 000. The framing of this count is fatal and the effect is that the count is not proved.
Assuming I am wrong and I can severe the amount involved and make a finding on the $8000 alleged, 1 will look at the merit of the allegation of conspiracy.
The fact that there is no positive evidence of any agreement between the accused persons to commit an offence is not enough to hold that the prosecution did not establish the charge of conspiracy.
Proof of conspiracy is a matter of inference from the evidence adduced and the court can convict for conspiracy if it is satisfied that the accused persons pursued the same object, one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design. Nwankwo V Federal Republic of Nigeria (supra) at 32 - 33.
Can the court infer conspiracy from the facts of this case?
PW2 in his evidence-in-chief testified that when the accused person and PW4 came for the money, they were asked to produce reference number involving the swift code for the transfer. They presented an e-mail sent to them by the sender of the money. That email is Exhibit P14. Exhibit P14 is dated 30th August, 2006 sent by Chidiebere at large using his e-mail address Chidiebere Omile Omile to Skindo@yahoo.com the accused person’s e-mail address. The subject of the mail is "Dozie here is it he send it to me."
TO BE CONTINUED…
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