JUDGMENT
This was the case for the defence.
Sunday, April 5, 2009
FRN VS MADU (CONTD)
STATEMENT OF OFFENCE – 16TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 14th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$32, 000 (Thirty two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No, FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 17TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 20th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$65, 000 (Sixty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 18TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$44,000 (Forty Four Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE-19TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 31st day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million, Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) purported to have been Issued by one Virginus Chukwu.
STATEMENT OF OFFENCE – 20TH COUNT
Uttering contrary to Section 468 of the Criminal, Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003,
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2005 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million,Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 21ST COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of August 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt,for the sum of N6, 664,000 (Six Million, Six Hundred and Sixty Four Thousand Naira Only) purported to have been issued by one Virginus Chukwu.
STATEMENT OF OFFENCE – 22ND COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2006 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N6, 664.000 (Six
Million, Six Hundred and Sixty Four Thousand Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 23RD COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N11, 728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) purported to have been issued by one VirgInus Chukwu.
STATEMENT OF OFFENCE – 24TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N11,728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 25TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of January 2001 at Lagos within Ikeja Judicial Division with intent to defraud forged NNPC document titled "Contract Agreement No FGN/NNPC/3160/X2X001” purported to have been issued by NNPC.
STATEMENT OF OFFENCE – 26TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged NNPC document titled "Contract Agreement No FHN/NNPC/3160/X2X001" to Ismael Lightbourne of Bahamas as genuine."
The accused person pleaded not guilty to the charge. The Prosecution opened its case on the 15th of November 2006.
PW1 was Musibau Adegbolahan Awoderu a Police Inspector attached to the EFCC.
He testified that sometime in December 2004, the EFCC received through an informant who was not named, an information that one Ishmael Lightbourne of the Bahamas was swindled by fraudsters from Nigeria. The informant supplied the address of the victim. The EFCC sent an e-mail to the victim requesting for details of the scam. He replied via e-mail and sent down six wire transfer slips. He also sent a summary of the payments made to the fraudsters for the purported NNPC contract.
He testified that the accused person was arrested on the 1st of March 2005. He obtained his statement under caution. The accused person made additional 7 statements also under caution.
PW1 tendered the victims e-mail Exhibit P1, Barclays Bank of Ghana Wire Transfer as Exhibit P2, Wire Transfer of Bank of America, Exhibits P3 - P7, Summary of payments Exhibit P8 and the purported NNPC document Exhibit P9. He also tendered the statements of the accused Exhibits P10 - P17.
PW1 was cross-examined extensively. Defence Counsel tendered Exhibits Dl - D5 through him.
PW2 was Philip Ngwoke an investigator with the EFCC. He testified that he was instructed by his team. leader to record additional statements from the accused. He tendered Exhibits P18 - P22 statements of the accused which he said he recorded under caution.
PW3 was Yayaha Bello of the EFCC. He testified that he led a team of operatives to Enugu to arrest the accused person. A search was conducted in his house after which he was flown to Lagos where he made his statement to PW1.
He testified that the accused person implicated one Virginus Chukwu as the person who used his account to defraud the victim. The accused person presented acknowledgement of payment receipts evidencing payment of the Naira equivalent of the Dollars paid into his account to Virginus Chukwu. On the strength of this allegation, Virginus Chukwu was arrested. He denied participating in the crime. He denied the documents acknowledging payment of Naira equivalent. These documents were admitted as Exhibits P23, P24 and P25. He testified that the signature of Virginus Chukwu in his letter of employment with the company of the accused and his offer letter Exhibits P26 and P27 were sent to the Forensic Document Examiner to compare with Exhibits P23 - P25. The handwriting analysts reports were admitted as Exhibits P28 and P29 respectively.
He testified that the accused person refunded some US Dollars which were remitted to the victim by the EFCC. The witness tendered copies of the Bonds to produce Exhibit for the various sums and all the correspondence relating to the remittances to the victim. These documents were admitted as Exhibits P30 - P50.
PW4 was Donatus Ugwu an Assistant Superintendent of Police attached to the EFCC. He testified that he accompanied PW3 to Enugu to arrest the accused. He was also present when the house of the accused was searched. He said in the course of the search, they recovered the International Passport of the accused person as well as £4,720. AH the items recovered were endorsed at the back of the search warrant.
He testified that in the course of investigation, the accused person made a refund of the sum of £2,500, That he also agreed to use the £4,720 recovered from him as part of the refund. He made an application to collect these sums and change to dollars which is the currency of the victim and for the EFCC to remit same. The application was approved and the money was changed to dollars and remitted to the victim. The witness identified Exhibit D4 the Search Warrant. He tendered the International Passport of the accused admitted as Exhibit P51 and the two applications of the accused to convert the money to dollars, exhibits P52 and P53 respectively.
PW5 was Muazu Abdullahi a Superintendent of Police and the Document Examiner of the EFCC. He gave evidence of his qualifications and experience as a handwriting analyst and document examiner. He testified that in May 2005, he received a letter from the Director of Operations EFCC accompanied by two sets of documents. The first was the disputed signature marked X and the second set the standard signature marked A for comparison.
He testified of his analysis of the two sets of documents and stated that his conclusion is that the two signatures are replicas. He said there is traced forgery of document marked A, The one marked X is a forged signature. He said he issued a report of his findings dated 7th June 2005.
He stated that on the 26th of April 2006, he received another letter from the EFCC also accompanied by the sets of document marked X - X2 and A - Al for comparison. He carried out the forensic analysis and his conclusion was that the disputed signatures marked X - X2 were forged signatures in a class of forgery known as free hand simulation. He issued a report dated 13th May 2006 Exhibit 29.
The witness identified Exhibits P28, P28(i) & P28(ii) the documents in respect of the 2005 examination and Exhibit P29(i-iv) in respect of the 2006 examination.
PW6 was Ishaq Mohammed an investigator with the EFCC. He testified that on the 16th of September 2005 his team leader Yahaya Bello asked him to record the statement of the accused person in relation to $10, 000 he brought as part payment of the money he defrauded Ishmael Lightbourne. He cautioned the accused person and the accused person asked him to assist him to write the statement. He dictated the statement and he helped him to write it. He read it over and the accused confirmed it and signed. He said he could not remember the reason the accused person gave for his inability to write the statement himself. The statement was admitted as Exhibit P55.
PW7 was Chukwu Virginus Nnajiofor, He testified that the accused person was his in law. He said on the 2nd of February 2005, he was invited to the EFCC where he was informed that the accused person said that he used his account to lodge in money. The EFCC showed him an acknowledgement receipt which he was purported to have signed. He said he did not sign any receipt and he did not pay any money into the account of the accused person. He also told them that he never asked the accused person to build houses or buy cars for him.
He said he was shown Exhibits P23, P24, P29 (iii) (iv) and (v) and he told the EFCC that he did not sign these documents.
PW8 was Alien Aiyelaye Alamman a Banker with Unity Bank formerly Intercity Bank. He testified that between 20/9/2005 - 20/7/2006, the EFCC requested that the Bank transfer money from their domiciliary account totaling $87,701.00 in four different transfers to one Ishmael Lightbourne of Peaceful Waters Company Ltd in Bahamas. The transfers were done as instructed. He identified Exhibits P31 - P34, P36 - P39, P41 - P49 as the documents for the transfer.
He also testified that they sent the copies of the Swift Message instructing their Bankers Offshore to transfer the funds to the EFCC to evidence the transfer to Ishmael Lightbourne.
The Swift Messages of 1/8/2006, 18/4/2006, 29/11/2005 and 2/9/2005 were admitted as Exhibits P56 - P59 respectively.
This was the case for the Prosecution.
Relevant portions of the cross-examination of the Prosecution witnesses will be referred to in the course of this judgment.
DW1 was Igwe Godwin Madu the accused person. He testified that he is a traditional ruler and businessman. He stated that on the 29/12/2004, one DSP Mrs. Ifeoma Ezeona from Alagbon came to his house with three men that he should follow them to Alagbon because there is a petition against him. He told them that his coronation was in two days. Two of the men told the DSP to allow him to come after the coronation. The DSP agreed and gave him appointment for the 9th of January which appointment he honoured. He tendered the complimentary card of the DSP and his coronation programme as Exhibit Dll and D12.
He testified that he is from the same village as Virginus Chukwu PW7 and there have been some issues between them as a result of his installation as Igwe. "He stated that when he got to Alagbon on the 9th, he saw the DSP and 3 men who introduced themselves as representatives of one Ishmael Lightbourne. He told the DSP that he had never met the man. The DSP took all of them to the office of the ACP where the DSP brought out a petition that he defrauded Ishmael Lightbourne who alleged that he lodge some money into his account for, him to supply aluminium profiles.
He denied the allegation. The ACP told him to go and write his statement with the DSP. As they were going, one of the officers who came with the DSP to his village to arrest him came to ACP's office. The ACP came later to the DSP's office and told her to be careful with this case that these petitioners are not the real petitioners, that the real petitioners are from his village. The DSP left the office and came back after two hours. She demanded for N10m to settle the case. He told her he did not have that kind of money. She threatened him with EFCC. The three men did not talk. She put a call through to Yayaha Bello.
After about 2 or 3 weeks, Yahaya Bello came to his village with Frank Ezeona the husband of Ifeoma Ezeoma the DSP. He tendered the complimentary card of Frank Ezeona as Exhibit D13.
He testified that when he got to the EFCC, Yayaha Bello brought out a petition on the letter head of Liberty Chambers who said they are representing an NGO New Citizen Group of which Frank Ezeona is the President.
In the petition, he was alleged to have defrauded one Ishmael Lightbourne with other people. He denied the allegation. He was asked to write his statement which he did. He said they showed him printed Bank Slips showing that money was lodged into his account and the sender of the money was Ishmael Lightbourne.
He said he admitted that the account names were his own but he did not know Ishmael Lightbourne. He said that he could remember that he gave his account number to his in-law Virginus Chukwu PW7 and Ikem Esel Robert. PW7 came to him in 2001 that he has foreign exchange that he wants to sell to him. He told PW7 if it is not fraudulent money or drug money he can use the account and he will give him the Naira equivalent upon his collecting 2% Commission for the Bank Charges and other expenses, PW7 agreed. He stated that PW7 used to sign acknowledgement receipts for the Naira equivalent. He identified Exhibits P23, P24 and P25 as some of the acknowledgments.
He testified that PW7 made a statement to NDLEA where he admitted that he bought him four exotic cars and he built houses for him at the time the lodgments were made. CTC of the statement of PW7 to NDLEA was tendered as Exhibit D14.
The accused person confirmed that he made refund of $88, 000 at the EFCC. He said when he finished writing his statement, Yayaha Bello came in and saw where he said he collected 2% of the total money lodged into his account. The 2% was about $16, 000 according to the lodgment but Yayaha Bello said he must pay $100, 000 before he can end the case. He agreed because it dawned on him that the N10m the DSP was asking for and this $100, 000 was about the same amount.
I think I need to pause here to say that Yahaya Bello testified as PW3 and he was never confronted with these allegations under cross-examination.
The accused person testified further that he and PW7 were in-laws because PW7 married his senior sister. They were very close until 2003 when he was presented as the Igwe Elect against PW7's father. That was when PW7 began to write petitions against him first to the former Governor of Enugu State and later to Alagbon and to the EFCC. On the day of his coronation PW7 was absent with his family. Instead, they went to another chieftaincy ceremony for their father.
DW2 was Raphael Onwusuligbo a Police Inspector and document examiner attached to the Forensic Science Laboratory Force C. I. D. Annex Alagbon Close Ikoyi Lagos.
He gave evidence of his qualifications and his experience as a handwriting analyst. He stated that he was subpoened to testify in this case. His office received a letter on the 10th of October 2006 later corrected to be 5th. of October 2006 from the office of U. C. Ikegbule Ibrahim Tahir and Associates to examine some documents marked Al, A2, A3, A4, X and XI. He said he carried out the examination and he came to the conclusion that one signatory signed ail the documents. He wrote his opinion and issued a report to U. C. Ikegbule & Associates.
He tendered Exhibits D16- D25 and explained the comparative table Exhibit D25 to the court. He also stated that he used the video spectra comparator and other apparatus to do the comparison.
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 14th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$32, 000 (Thirty two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No, FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 17TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 20th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$65, 000 (Sixty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 18TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$44,000 (Forty Four Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE-19TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 31st day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million, Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) purported to have been Issued by one Virginus Chukwu.
STATEMENT OF OFFENCE – 20TH COUNT
Uttering contrary to Section 468 of the Criminal, Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003,
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2005 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N9, 329,600 (Nine Million,Three Hundred and Twenty Nine Thousand, Six Hundred Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 21ST COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of August 2002 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt,for the sum of N6, 664,000 (Six Million, Six Hundred and Sixty Four Thousand Naira Only) purported to have been issued by one Virginus Chukwu.
STATEMENT OF OFFENCE – 22ND COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 6th day of April 2006 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N6, 664.000 (Six
Million, Six Hundred and Sixty Four Thousand Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 23RD COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud forged acknowledgment receipt for the sum of N11, 728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) purported to have been issued by one VirgInus Chukwu.
STATEMENT OF OFFENCE – 24TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged acknowledgment receipt for the sum of N11,728,640 (Eleven Million, Seven Hundred and Twenty Eight Thousand, Six Hundred and Forty Naira Only) to Mr. Philip Ngoke of Economic and Financial Crimes Commission as genuine.
STATEMENT OF OFFENCE – 25TH COUNT
Forgery contrary to Section 467(2)(1) of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of January 2001 at Lagos within Ikeja Judicial Division with intent to defraud forged NNPC document titled "Contract Agreement No FGN/NNPC/3160/X2X001” purported to have been issued by NNPC.
STATEMENT OF OFFENCE – 26TH COUNT
Uttering contrary to Section 468 of the Criminal Code Cap. C17, Vol.2 Laws of Lagos State of Nigeria, 2003.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 12th day of March 2003 at Lagos within Ikeja Judicial Division with intent to defraud knowingly and fraudulently uttered forged NNPC document titled "Contract Agreement No FHN/NNPC/3160/X2X001" to Ismael Lightbourne of Bahamas as genuine."
The accused person pleaded not guilty to the charge. The Prosecution opened its case on the 15th of November 2006.
PW1 was Musibau Adegbolahan Awoderu a Police Inspector attached to the EFCC.
He testified that sometime in December 2004, the EFCC received through an informant who was not named, an information that one Ishmael Lightbourne of the Bahamas was swindled by fraudsters from Nigeria. The informant supplied the address of the victim. The EFCC sent an e-mail to the victim requesting for details of the scam. He replied via e-mail and sent down six wire transfer slips. He also sent a summary of the payments made to the fraudsters for the purported NNPC contract.
He testified that the accused person was arrested on the 1st of March 2005. He obtained his statement under caution. The accused person made additional 7 statements also under caution.
PW1 tendered the victims e-mail Exhibit P1, Barclays Bank of Ghana Wire Transfer as Exhibit P2, Wire Transfer of Bank of America, Exhibits P3 - P7, Summary of payments Exhibit P8 and the purported NNPC document Exhibit P9. He also tendered the statements of the accused Exhibits P10 - P17.
PW1 was cross-examined extensively. Defence Counsel tendered Exhibits Dl - D5 through him.
PW2 was Philip Ngwoke an investigator with the EFCC. He testified that he was instructed by his team. leader to record additional statements from the accused. He tendered Exhibits P18 - P22 statements of the accused which he said he recorded under caution.
PW3 was Yayaha Bello of the EFCC. He testified that he led a team of operatives to Enugu to arrest the accused person. A search was conducted in his house after which he was flown to Lagos where he made his statement to PW1.
He testified that the accused person implicated one Virginus Chukwu as the person who used his account to defraud the victim. The accused person presented acknowledgement of payment receipts evidencing payment of the Naira equivalent of the Dollars paid into his account to Virginus Chukwu. On the strength of this allegation, Virginus Chukwu was arrested. He denied participating in the crime. He denied the documents acknowledging payment of Naira equivalent. These documents were admitted as Exhibits P23, P24 and P25. He testified that the signature of Virginus Chukwu in his letter of employment with the company of the accused and his offer letter Exhibits P26 and P27 were sent to the Forensic Document Examiner to compare with Exhibits P23 - P25. The handwriting analysts reports were admitted as Exhibits P28 and P29 respectively.
He testified that the accused person refunded some US Dollars which were remitted to the victim by the EFCC. The witness tendered copies of the Bonds to produce Exhibit for the various sums and all the correspondence relating to the remittances to the victim. These documents were admitted as Exhibits P30 - P50.
PW4 was Donatus Ugwu an Assistant Superintendent of Police attached to the EFCC. He testified that he accompanied PW3 to Enugu to arrest the accused. He was also present when the house of the accused was searched. He said in the course of the search, they recovered the International Passport of the accused person as well as £4,720. AH the items recovered were endorsed at the back of the search warrant.
He testified that in the course of investigation, the accused person made a refund of the sum of £2,500, That he also agreed to use the £4,720 recovered from him as part of the refund. He made an application to collect these sums and change to dollars which is the currency of the victim and for the EFCC to remit same. The application was approved and the money was changed to dollars and remitted to the victim. The witness identified Exhibit D4 the Search Warrant. He tendered the International Passport of the accused admitted as Exhibit P51 and the two applications of the accused to convert the money to dollars, exhibits P52 and P53 respectively.
PW5 was Muazu Abdullahi a Superintendent of Police and the Document Examiner of the EFCC. He gave evidence of his qualifications and experience as a handwriting analyst and document examiner. He testified that in May 2005, he received a letter from the Director of Operations EFCC accompanied by two sets of documents. The first was the disputed signature marked X and the second set the standard signature marked A for comparison.
He testified of his analysis of the two sets of documents and stated that his conclusion is that the two signatures are replicas. He said there is traced forgery of document marked A, The one marked X is a forged signature. He said he issued a report of his findings dated 7th June 2005.
He stated that on the 26th of April 2006, he received another letter from the EFCC also accompanied by the sets of document marked X - X2 and A - Al for comparison. He carried out the forensic analysis and his conclusion was that the disputed signatures marked X - X2 were forged signatures in a class of forgery known as free hand simulation. He issued a report dated 13th May 2006 Exhibit 29.
The witness identified Exhibits P28, P28(i) & P28(ii) the documents in respect of the 2005 examination and Exhibit P29(i-iv) in respect of the 2006 examination.
PW6 was Ishaq Mohammed an investigator with the EFCC. He testified that on the 16th of September 2005 his team leader Yahaya Bello asked him to record the statement of the accused person in relation to $10, 000 he brought as part payment of the money he defrauded Ishmael Lightbourne. He cautioned the accused person and the accused person asked him to assist him to write the statement. He dictated the statement and he helped him to write it. He read it over and the accused confirmed it and signed. He said he could not remember the reason the accused person gave for his inability to write the statement himself. The statement was admitted as Exhibit P55.
PW7 was Chukwu Virginus Nnajiofor, He testified that the accused person was his in law. He said on the 2nd of February 2005, he was invited to the EFCC where he was informed that the accused person said that he used his account to lodge in money. The EFCC showed him an acknowledgement receipt which he was purported to have signed. He said he did not sign any receipt and he did not pay any money into the account of the accused person. He also told them that he never asked the accused person to build houses or buy cars for him.
He said he was shown Exhibits P23, P24, P29 (iii) (iv) and (v) and he told the EFCC that he did not sign these documents.
PW8 was Alien Aiyelaye Alamman a Banker with Unity Bank formerly Intercity Bank. He testified that between 20/9/2005 - 20/7/2006, the EFCC requested that the Bank transfer money from their domiciliary account totaling $87,701.00 in four different transfers to one Ishmael Lightbourne of Peaceful Waters Company Ltd in Bahamas. The transfers were done as instructed. He identified Exhibits P31 - P34, P36 - P39, P41 - P49 as the documents for the transfer.
He also testified that they sent the copies of the Swift Message instructing their Bankers Offshore to transfer the funds to the EFCC to evidence the transfer to Ishmael Lightbourne.
The Swift Messages of 1/8/2006, 18/4/2006, 29/11/2005 and 2/9/2005 were admitted as Exhibits P56 - P59 respectively.
This was the case for the Prosecution.
Relevant portions of the cross-examination of the Prosecution witnesses will be referred to in the course of this judgment.
DW1 was Igwe Godwin Madu the accused person. He testified that he is a traditional ruler and businessman. He stated that on the 29/12/2004, one DSP Mrs. Ifeoma Ezeona from Alagbon came to his house with three men that he should follow them to Alagbon because there is a petition against him. He told them that his coronation was in two days. Two of the men told the DSP to allow him to come after the coronation. The DSP agreed and gave him appointment for the 9th of January which appointment he honoured. He tendered the complimentary card of the DSP and his coronation programme as Exhibit Dll and D12.
He testified that he is from the same village as Virginus Chukwu PW7 and there have been some issues between them as a result of his installation as Igwe. "He stated that when he got to Alagbon on the 9th, he saw the DSP and 3 men who introduced themselves as representatives of one Ishmael Lightbourne. He told the DSP that he had never met the man. The DSP took all of them to the office of the ACP where the DSP brought out a petition that he defrauded Ishmael Lightbourne who alleged that he lodge some money into his account for, him to supply aluminium profiles.
He denied the allegation. The ACP told him to go and write his statement with the DSP. As they were going, one of the officers who came with the DSP to his village to arrest him came to ACP's office. The ACP came later to the DSP's office and told her to be careful with this case that these petitioners are not the real petitioners, that the real petitioners are from his village. The DSP left the office and came back after two hours. She demanded for N10m to settle the case. He told her he did not have that kind of money. She threatened him with EFCC. The three men did not talk. She put a call through to Yayaha Bello.
After about 2 or 3 weeks, Yahaya Bello came to his village with Frank Ezeona the husband of Ifeoma Ezeoma the DSP. He tendered the complimentary card of Frank Ezeona as Exhibit D13.
He testified that when he got to the EFCC, Yayaha Bello brought out a petition on the letter head of Liberty Chambers who said they are representing an NGO New Citizen Group of which Frank Ezeona is the President.
In the petition, he was alleged to have defrauded one Ishmael Lightbourne with other people. He denied the allegation. He was asked to write his statement which he did. He said they showed him printed Bank Slips showing that money was lodged into his account and the sender of the money was Ishmael Lightbourne.
He said he admitted that the account names were his own but he did not know Ishmael Lightbourne. He said that he could remember that he gave his account number to his in-law Virginus Chukwu PW7 and Ikem Esel Robert. PW7 came to him in 2001 that he has foreign exchange that he wants to sell to him. He told PW7 if it is not fraudulent money or drug money he can use the account and he will give him the Naira equivalent upon his collecting 2% Commission for the Bank Charges and other expenses, PW7 agreed. He stated that PW7 used to sign acknowledgement receipts for the Naira equivalent. He identified Exhibits P23, P24 and P25 as some of the acknowledgments.
He testified that PW7 made a statement to NDLEA where he admitted that he bought him four exotic cars and he built houses for him at the time the lodgments were made. CTC of the statement of PW7 to NDLEA was tendered as Exhibit D14.
The accused person confirmed that he made refund of $88, 000 at the EFCC. He said when he finished writing his statement, Yayaha Bello came in and saw where he said he collected 2% of the total money lodged into his account. The 2% was about $16, 000 according to the lodgment but Yayaha Bello said he must pay $100, 000 before he can end the case. He agreed because it dawned on him that the N10m the DSP was asking for and this $100, 000 was about the same amount.
I think I need to pause here to say that Yahaya Bello testified as PW3 and he was never confronted with these allegations under cross-examination.
The accused person testified further that he and PW7 were in-laws because PW7 married his senior sister. They were very close until 2003 when he was presented as the Igwe Elect against PW7's father. That was when PW7 began to write petitions against him first to the former Governor of Enugu State and later to Alagbon and to the EFCC. On the day of his coronation PW7 was absent with his family. Instead, they went to another chieftaincy ceremony for their father.
DW2 was Raphael Onwusuligbo a Police Inspector and document examiner attached to the Forensic Science Laboratory Force C. I. D. Annex Alagbon Close Ikoyi Lagos.
He gave evidence of his qualifications and his experience as a handwriting analyst. He stated that he was subpoened to testify in this case. His office received a letter on the 10th of October 2006 later corrected to be 5th. of October 2006 from the office of U. C. Ikegbule Ibrahim Tahir and Associates to examine some documents marked Al, A2, A3, A4, X and XI. He said he carried out the examination and he came to the conclusion that one signatory signed ail the documents. He wrote his opinion and issued a report to U. C. Ikegbule & Associates.
He tendered Exhibits D16- D25 and explained the comparative table Exhibit D25 to the court. He also stated that he used the video spectra comparator and other apparatus to do the comparison.
FRN VS MADU
IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT 31 (CRIMINAL DIVISION)
BEFORE HON. JUSTICE M. O. OBAPINA (MRS.)
TODAY THURSDAY THE 19TH DAY OF FEBRUARY2009
CHARGE NO: ID/114c/2006
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA PROSECUTION
AND
1. IGWE GODWIN MADU (ALIAS USMAN MUSTAPHA) ACCUSED
2. GODDYSON WEST AFRICA LTD
JUDGMENT
The 1st accused person (hereinafter called the accused person) was arraigned with the 2nd accused before this court first on a 24 count charge dated 11th September 2006 and later on 26 count Amended charge dated 7th November 2006. He pleaded not guilty for himself and on behalf of the 2nd accused.
The 26 count charge reads as follows:-
"STATEMENT OF OFFENCE – 1st COUNT
Conspiracy to obtain money by false pretences contrary to Sections 8(a) and 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud conspired to obtain money by false pretence from Mr. Ishmael Lightbourne of Bahamas.
STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45, 000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 3RD COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$25, 000 (Twenty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 4TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$50, 000 (Fifty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 5TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 2nd day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$47,037 (Forty Seven Thousand, Thirty Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 6TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$39,577 (Thirty Nine Thousand, Five Hundred and Seventy Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 7TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John- (still at large) and others still at large on or about the 6th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,000 (Thirty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 8TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 19th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$30,000 (Thirty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 9TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$40,252 (Forty Thousand, Two Hundred and Fifty Two United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 10TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias- Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 18th day of December 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$72,000 (Seventy Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the-said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 11TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 7th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$62,000 (Sixty Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 12TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$36,373 (Thirty Six Thousand, Three Hundred and Seventy Three United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE-13TH COUNT
Obtaining money by false pretences contrary to section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 28th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,135 (Thirty Five Thousand, One Hundred and Thirty Five United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 14TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45,000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 15TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$20, 000 (Twenty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
To be continued…
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT COURT 31 (CRIMINAL DIVISION)
BEFORE HON. JUSTICE M. O. OBAPINA (MRS.)
TODAY THURSDAY THE 19TH DAY OF FEBRUARY2009
CHARGE NO: ID/114c/2006
BETWEEN:
FEDERAL REPUBLIC OF NIGERIA PROSECUTION
AND
1. IGWE GODWIN MADU (ALIAS USMAN MUSTAPHA) ACCUSED
2. GODDYSON WEST AFRICA LTD
JUDGMENT
The 1st accused person (hereinafter called the accused person) was arraigned with the 2nd accused before this court first on a 24 count charge dated 11th September 2006 and later on 26 count Amended charge dated 7th November 2006. He pleaded not guilty for himself and on behalf of the 2nd accused.
The 26 count charge reads as follows:-
"STATEMENT OF OFFENCE – 1st COUNT
Conspiracy to obtain money by false pretences contrary to Sections 8(a) and 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud conspired to obtain money by false pretence from Mr. Ishmael Lightbourne of Bahamas.
STATEMENT OF OFFENCE – 2ND COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45, 000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 3RD COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$25, 000 (Twenty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 4TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of May 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$50, 000 (Fifty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 5TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 2nd day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$47,037 (Forty Seven Thousand, Thirty Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 6TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 24th day of October 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$39,577 (Thirty Nine Thousand, Five Hundred and Seventy Seven United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 7TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John- (still at large) and others still at large on or about the 6th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,000 (Thirty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 8TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 19th day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$30,000 (Thirty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 9TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of November 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$40,252 (Forty Thousand, Two Hundred and Fifty Two United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 10TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias- Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 18th day of December 2002 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$72,000 (Seventy Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the-said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 11TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 7th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$62,000 (Sixty Two Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 12TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 22nd day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$36,373 (Thirty Six Thousand, Three Hundred and Seventy Three United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE-13TH COUNT
Obtaining money by false pretences contrary to section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act. No 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 28th day of January 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$35,135 (Thirty Five Thousand, One Hundred and Thirty Five United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 14TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 4th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$45,000 (Forty Five Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
STATEMENT OF OFFENCE – 15TH COUNT
Obtaining money by false pretences contrary to Section 1(3) of Advance Fee Fraud and Other Fraud Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Igwe Godwin Madu (alias Usman Mustapha), Goddyson West Africa Limited, Chinedu John (still at large) and others still at large on or about the 11th day of February 2003 at Lagos within Ikeja Judicial Division with intent to defraud obtained the sum of US$20, 000 (Twenty Thousand United States Dollars) from Ishmael Lightbourne of Bahamas by falsely pretending that the said sum was for processing NNPC Contract No. FGN/NNPC/3160/X2X001.
To be continued…
ADEKUNLE V DADA & 5 ORS
IN THE HIGH COURT OF LAGOS STATE
IN THE IKE3A JUDICIAL DIVISION
HOLDEN AT COURT 31
BEFORE HON. JUSTICE M. O. OBADINA (MRS.)
TODAY MONDAY THE 9TH DAY OF FEBRUARY 2009
SUITNO: ID/3506/1996
BETWEEN:
CHIEF OLUSAN30 ADEKUNLE CLAIMANT/RESPONDENT
AND
1. ALHAJA SALIMOTU DADA
2. ISIAKA YUSUF OGUNLEYE - JUDGMENTCREDITORS/APPLICANTS
3. FATAI YUSUF OGUNLEYE
4. JIMOH YUSUF OGUNLEYE
5. LASISI YUSUF OGUNLEYE
6. ALHAJI IBRAHIM ABDULLAH
AND
1. JACOB ADELOLA JUDGMENT DEBTORS/RESPONDENTS
2. MADAM ADIJATU OMO-OBA
RULING
The Judgment Creditors/Applicants Motion on Notice is dated 18th September 2008. It is brought pursuant to Order 39 Rule 1 of the High Court of Lagos State Civil Procedure Rules 2004 and under the inherent jurisdiction of this court.
The Applicants are praying for:
"An order discontinuing and or striking out this interpleader summons on the ground that this court has no jurisdiction to entertain same"
The grounds upon which this application is brought are:-
1, That the proceedings by way of Interpleader Summons under Order VI of the Judgment (Enforcement) Rules presuppose and or assume that the property to which the proceedings relate is still in the custody of the bailiff and or Deputy Sheriff.
2. The property to which this proceedings relate is no longer in the custody of the bailiff or the Deputy Sheriff.
3. Interpleader summons proceedings in the circumstance is inappropriate and violently violates the rule in Madukolu V Nkemdilim (1962) 2 SCNLR 341.
In support of the application is an 8-paragraph affidavit sworn to by Sikiru Daramola litigation clerk in the Firm of Messrs Bisi Adegunie & Co. Solicitors to the Judgment Creditors/Applicants.
In paragraphs 3 " 6/ the deponent averred as follows:"
"3. That judgment was delivered in this suit in respect of the properties known as Nos 2 and 4 Ogedemgbe Street Agege in favour of the Judgment Creditors/Applicants on 2th February 2003.
4. That execution was levied on the premises in January 2006 and possession of the premises was handed over to the Judgment Creditors/Applicants
5. That attached herewith and marked Exhibit A is a copy of Form O1 or Certificate of Execution of Warrant of Possession issued to the Judgment Creditors/Applicants
by the Deputy Sheriff of the Honourable Court.
6. That Lukman Qgunsetan of counsel informed me at my office on Tuesday 16th September 2008 at about 12 noon as follows and I verily believe:
(a) That the Deputy Sheriff of this Honourable Court delivered possession of the property to the Judgment Creditors/Applicants in January 2006.
(b) That the Deputy Sheriff of this Honourable Court no longer has any power to issue interpleader summons in respect of the said property."
Attached as exhibit to this affidavit is a photocopy of "Form 0" dated 3rd February 2006,
Applicants counsel Lukman Ogunsetan filed a written address dated 18th September 2008. He formulated only one issue for determination to wit:
"Whether in the circumstances, the claimants' claim can be ventilated by way of interpleader summons"
He argued that interpleader proceedings is a suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to
litigate ownership. He referred to Blacks Law Dictionary 8th Edition page 836.
He submitted that a necessary feature of the interpleader proceedings is that the property the subject matter of the proceedings must be in the possession of a disinterested party.
Where, as in this case, the proceedings is a Sheriffs Interpleader, then the property must still be in the custody of the Deputy Sheriff.
In this case, the Deputy Sheriff levied execution in January 2006 and issued Form "O".1 The issuance of Form "0" by the Deputy Sheriff renders him functus officio as far as the property is concerned. He is therefore incapable of issuing interpleader summons for the purpose of determining the issue of ownership between the judgment creditors and any rival claimant.
He relied on the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 and urged the court to strike out the Interpleader Summons.
The claimant/respondent opposed the application and filed a 4-paragraph counter affidavit deposed to by one Benson Mark process clerk in the chambers of S, A. Lawal & Co claimant's counsel.
In paragraphs 2 and 3, the deponent averred thus:-
"2. That I have read the affidavit of Sikiru Darambia sworn to on 19th September 2008 and paragraphs 4/ 5 & 6 of the affidavit are denied.
3. That Adewale Lawai/ counsel to the claimant informs me and I verily believe as follows:-
(a) That Mr. Jide Craig then a Bailiff of court informed him and he verily believed him that he served the Notice of Claim to attach property (Form 42) on Messrs Bisi
Adegunie & Co on 31/1/2008"
Respondent counsel S. A. Lawal filed a written address dated 30th October 2008. He formulated only one issue for determination thus:-
"Whether Exhibit A Certificate of Warrant of Possession as exhibited is enough to prevent the court from exercising jurisdiction in the interpleader proceedings."
Learned counsel argued that Exhibit A is at variance with paragraph 6(a) of the affidavit in support which states that possession was delivered in January 2006 while Exhibit A is dated 3rd February 2006.
He urged the court-to reject this deposition. He also urged the court to take notice of the alteration on the year shown in Exhibit A. Furthermore, Exhibit A being a public document within the meaning of Section 109 of the Evidence Act ought to have been
certified to, be admissible. He relied on the case of Yero V LIBN Ltd (2005) 5 NWLR (Pt. 657) 470.
Learned counsel urged the court to consider its records and take notice of the following facts,
(a) Letter dated 27/1/2006 informing the Deputy Sheriff of the interest of the claimant in the attached property known as 4/ Ogedemgbe Street Agege Lagos.
(b) Notice of Claim to attached property (Form 42) was issued and dated 30th January 2006 by the Registrar of the High Court.
(c) That Form 42 was served on Messrs Bisi Adegunie & Co Solicitors to the Applicants on 31/1/2006.
He argued that there is nothing on record to show that possession of the property was handed over to the Applicants on or before 31/1/2006 when Form 42 was served. That even Exhibit A states that possession was given on 3rd February 2006.
He urged the court to hold that at all material times, the claimant was properly before the court and that this court has jurisdiction to entertain the interpleader summons pursuant to the Sheriff and Civil Process Act and under its inherent jurisdiction.
In his oral reply, Applicants counsel argued that the only opposition of the claimant is the non-certification of Exhibit A. He referred to the following cases - Abacha V Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Adejumo & Ors V Military Governor
Lagos State (1970) 1 All NLR 183 at 187, Oduya V Nzeogwu (1996) 1 NWLR (Pt. 426) 713 at 722 on objection to exhibit attached to an affidavit. He urged the court to accept the document as the practice is that photocopy of documents is often attached in interlocutory applications.
In determining this application/ the court will make use of documents in its file not tendered as exhibits. For the power of the court to do this/ I refer to the case of NASCO Management Services Ltd V A. N. Amaku Transport Ltd (2003) 2 NWLR
(Pt. 804) 290 at 334-335.
Interpleader Summons are of two types, the Sheriffs Interpleader and the Stakeholders Interpleader. In the Sheriffs interpleader, the proceedings are initiated by the Sheriff/ where a third party claims that the property on which execution is levied or about to be levied belongs to him 'and not to the judgment debtor. Interpleaders other than Sheriffs Interpleaders are known as Stakeholders Interpleaders. See Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo Page 1124.
Section 34 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990 deals with interpleader by Sheriff.
Section 34(1) provides:-
"(l) If a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the Sheriff, as well before or after any action brought against him, issue a summons calling before the court at whose instance the process is issued and the party making the claim"
It is clear from this provision that the summons will issue where the property has been attached not where possession has been taken. It is at the stage of issuance of process to levy execution that an interpleader summons can be issued by the Sheriff.
The Claimant/Respondent did not dispute this. He is contending that there was no execution because the document tendered to prove that possession was taken i.e Exhibit A is spurious.
By virtue of Section 97(2) (c) of the Evidence Act, the only acceptable secondary evidence of a public document is a certified true copy of the document and none other. The objective of Section 97(2) (c) is to ensure the authenticity of the document vis- a-viz the original, and the need for the preservation of public documents.
In Araka V Egbue (2003) 17 NWLR (2003) 17 NWLR (Pt. 848) 1 at 20 - 21, his Lordship Niki Tobi JSC made a profound statement on the rationale for certification.
He said:-
"In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process
of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original."
I have read the cases cited by Applicants' counsel in support of his submission that courts have held that you don't need to tender certified true copy of public documents in all cases.
In Abacha V Fawehinmi (supra) at page 330 - 332 the Supreme Court held that the Detention Order in that case was a public document and the certified true copy of same should have been tendered. In Adejumo V Military Governor Lagos State (supra), the Supreme Court held at page 187 thus:
"...is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use the document will be put? We think not. In our view, objection should be taken when all the facts are put before the court and not at the preliminary stage..."
From this pronouncement, it is clear that objection can be taken to a document when the use for which the document is tendered is clear. If it is to prove a material point which can decide an application one way. or another, then the exhibit should be certified.
I am persuaded that this is the correct position of the law and I am emboldened in my view by the pronouncement of His Lordship Oguntade JCA (as he then was) in Fawehinmi V Inspector General of Police (2000) 7 NWLR (Pt. 665) 481 at 525
where His Lordship said:-
'The lower court also said that the stage at which the objection to the admissibility of Exhibits GF1, GF2 and GF3 was raised was premature. The lower court would rather
the objection was raised at the hearing of the substantive suit.
......It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of
a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of Section 97 of the Evidence Act. Otherwise it should be ignored or
discountenanced"
I am not aware of any appeal to the Supreme Court against this finding of the Court of Appeal and on the basis of the principles of stare decisis, I am bound by it.
Exhibit A is the only document by which it is sought to prove the possession of the property in dispute after the execution. I have examined the court's record. I am unable to find any copy of Exhibit A in the court's file. Exhibit A was also altered. No explanation was given for the alteration of the date on the document. I agree with claimant counsel- that Exhibit A is spurious. I discountenance it totally.
In the absence of Exhibit W, can this application still succeed? Like I said earlier/1 am empowered to examine the court's record and to make use of documents therein.
On the 25th of April 2006, this court granted claimants application for substituted service of the interpleader summons and other processes on the judgment creditors. . The court ordered that proof of service should include photographs showing the front view of the premises where the processes were pasted.
The court processes were pasted according to the affidavit of service dated 27th June 2006 at No 4 Ogedengbe Street, Agege, Lagos the property in dispute. The photograph attached show the building with an inscription on the wall stating "ID/3506/96 possession taken today 24/1/2006 by court order"
Affidavit of service of a Hearing Notice dated 1st November 2006 also show the inscription on the building. It is clear to me therefore that the Deputy Sheriff has already levied execution and taken possession of the property in dispute. Interpleader summons proceeding is therefore not available to the Claimant at this stage to claim the property. He has to come to court by a writ of summons.
In the final analysis, this application succeeds. This court has no Jurisdiction to continue with this interpleader proceedings. The Interpleader summons is accordingly struck out.
HON. JUSTICE M. O. OBADINA (MRS.)
JUDGE
9/2/2009.
Counsel: A. Lawal for the Claimant/Respondent
Lukman Ogunsetan for the Judgment Creditors/Applicants-
IN THE IKE3A JUDICIAL DIVISION
HOLDEN AT COURT 31
BEFORE HON. JUSTICE M. O. OBADINA (MRS.)
TODAY MONDAY THE 9TH DAY OF FEBRUARY 2009
SUITNO: ID/3506/1996
BETWEEN:
CHIEF OLUSAN30 ADEKUNLE CLAIMANT/RESPONDENT
AND
1. ALHAJA SALIMOTU DADA
2. ISIAKA YUSUF OGUNLEYE - JUDGMENTCREDITORS/APPLICANTS
3. FATAI YUSUF OGUNLEYE
4. JIMOH YUSUF OGUNLEYE
5. LASISI YUSUF OGUNLEYE
6. ALHAJI IBRAHIM ABDULLAH
AND
1. JACOB ADELOLA JUDGMENT DEBTORS/RESPONDENTS
2. MADAM ADIJATU OMO-OBA
RULING
The Judgment Creditors/Applicants Motion on Notice is dated 18th September 2008. It is brought pursuant to Order 39 Rule 1 of the High Court of Lagos State Civil Procedure Rules 2004 and under the inherent jurisdiction of this court.
The Applicants are praying for:
"An order discontinuing and or striking out this interpleader summons on the ground that this court has no jurisdiction to entertain same"
The grounds upon which this application is brought are:-
1, That the proceedings by way of Interpleader Summons under Order VI of the Judgment (Enforcement) Rules presuppose and or assume that the property to which the proceedings relate is still in the custody of the bailiff and or Deputy Sheriff.
2. The property to which this proceedings relate is no longer in the custody of the bailiff or the Deputy Sheriff.
3. Interpleader summons proceedings in the circumstance is inappropriate and violently violates the rule in Madukolu V Nkemdilim (1962) 2 SCNLR 341.
In support of the application is an 8-paragraph affidavit sworn to by Sikiru Daramola litigation clerk in the Firm of Messrs Bisi Adegunie & Co. Solicitors to the Judgment Creditors/Applicants.
In paragraphs 3 " 6/ the deponent averred as follows:"
"3. That judgment was delivered in this suit in respect of the properties known as Nos 2 and 4 Ogedemgbe Street Agege in favour of the Judgment Creditors/Applicants on 2th February 2003.
4. That execution was levied on the premises in January 2006 and possession of the premises was handed over to the Judgment Creditors/Applicants
5. That attached herewith and marked Exhibit A is a copy of Form O1 or Certificate of Execution of Warrant of Possession issued to the Judgment Creditors/Applicants
by the Deputy Sheriff of the Honourable Court.
6. That Lukman Qgunsetan of counsel informed me at my office on Tuesday 16th September 2008 at about 12 noon as follows and I verily believe:
(a) That the Deputy Sheriff of this Honourable Court delivered possession of the property to the Judgment Creditors/Applicants in January 2006.
(b) That the Deputy Sheriff of this Honourable Court no longer has any power to issue interpleader summons in respect of the said property."
Attached as exhibit to this affidavit is a photocopy of "Form 0" dated 3rd February 2006,
Applicants counsel Lukman Ogunsetan filed a written address dated 18th September 2008. He formulated only one issue for determination to wit:
"Whether in the circumstances, the claimants' claim can be ventilated by way of interpleader summons"
He argued that interpleader proceedings is a suit to determine a right to property held by a disinterested third party (called a stakeholder) who is in doubt about ownership and who therefore deposits the property with the court to permit interested parties to
litigate ownership. He referred to Blacks Law Dictionary 8th Edition page 836.
He submitted that a necessary feature of the interpleader proceedings is that the property the subject matter of the proceedings must be in the possession of a disinterested party.
Where, as in this case, the proceedings is a Sheriffs Interpleader, then the property must still be in the custody of the Deputy Sheriff.
In this case, the Deputy Sheriff levied execution in January 2006 and issued Form "O".1 The issuance of Form "0" by the Deputy Sheriff renders him functus officio as far as the property is concerned. He is therefore incapable of issuing interpleader summons for the purpose of determining the issue of ownership between the judgment creditors and any rival claimant.
He relied on the locus classicus case of Madukolu v Nkemdilim (1962) 2 SCNLR 341 and urged the court to strike out the Interpleader Summons.
The claimant/respondent opposed the application and filed a 4-paragraph counter affidavit deposed to by one Benson Mark process clerk in the chambers of S, A. Lawal & Co claimant's counsel.
In paragraphs 2 and 3, the deponent averred thus:-
"2. That I have read the affidavit of Sikiru Darambia sworn to on 19th September 2008 and paragraphs 4/ 5 & 6 of the affidavit are denied.
3. That Adewale Lawai/ counsel to the claimant informs me and I verily believe as follows:-
(a) That Mr. Jide Craig then a Bailiff of court informed him and he verily believed him that he served the Notice of Claim to attach property (Form 42) on Messrs Bisi
Adegunie & Co on 31/1/2008"
Respondent counsel S. A. Lawal filed a written address dated 30th October 2008. He formulated only one issue for determination thus:-
"Whether Exhibit A Certificate of Warrant of Possession as exhibited is enough to prevent the court from exercising jurisdiction in the interpleader proceedings."
Learned counsel argued that Exhibit A is at variance with paragraph 6(a) of the affidavit in support which states that possession was delivered in January 2006 while Exhibit A is dated 3rd February 2006.
He urged the court-to reject this deposition. He also urged the court to take notice of the alteration on the year shown in Exhibit A. Furthermore, Exhibit A being a public document within the meaning of Section 109 of the Evidence Act ought to have been
certified to, be admissible. He relied on the case of Yero V LIBN Ltd (2005) 5 NWLR (Pt. 657) 470.
Learned counsel urged the court to consider its records and take notice of the following facts,
(a) Letter dated 27/1/2006 informing the Deputy Sheriff of the interest of the claimant in the attached property known as 4/ Ogedemgbe Street Agege Lagos.
(b) Notice of Claim to attached property (Form 42) was issued and dated 30th January 2006 by the Registrar of the High Court.
(c) That Form 42 was served on Messrs Bisi Adegunie & Co Solicitors to the Applicants on 31/1/2006.
He argued that there is nothing on record to show that possession of the property was handed over to the Applicants on or before 31/1/2006 when Form 42 was served. That even Exhibit A states that possession was given on 3rd February 2006.
He urged the court to hold that at all material times, the claimant was properly before the court and that this court has jurisdiction to entertain the interpleader summons pursuant to the Sheriff and Civil Process Act and under its inherent jurisdiction.
In his oral reply, Applicants counsel argued that the only opposition of the claimant is the non-certification of Exhibit A. He referred to the following cases - Abacha V Fawehinmi (2000) 6 NWLR (Pt. 660) 228, Adejumo & Ors V Military Governor
Lagos State (1970) 1 All NLR 183 at 187, Oduya V Nzeogwu (1996) 1 NWLR (Pt. 426) 713 at 722 on objection to exhibit attached to an affidavit. He urged the court to accept the document as the practice is that photocopy of documents is often attached in interlocutory applications.
In determining this application/ the court will make use of documents in its file not tendered as exhibits. For the power of the court to do this/ I refer to the case of NASCO Management Services Ltd V A. N. Amaku Transport Ltd (2003) 2 NWLR
(Pt. 804) 290 at 334-335.
Interpleader Summons are of two types, the Sheriffs Interpleader and the Stakeholders Interpleader. In the Sheriffs interpleader, the proceedings are initiated by the Sheriff/ where a third party claims that the property on which execution is levied or about to be levied belongs to him 'and not to the judgment debtor. Interpleaders other than Sheriffs Interpleaders are known as Stakeholders Interpleaders. See Civil Procedure in Nigeria 2nd Edition by Fidelis Nwadialo Page 1124.
Section 34 of the Sheriffs and Civil Process Act Cap 407 Laws of the Federation 1990 deals with interpleader by Sheriff.
Section 34(1) provides:-
"(l) If a claim is made to or in respect of any property attached in execution under process of a court, or in respect of the proceeds or value thereof, the registrar may, upon the application of the Sheriff, as well before or after any action brought against him, issue a summons calling before the court at whose instance the process is issued and the party making the claim"
It is clear from this provision that the summons will issue where the property has been attached not where possession has been taken. It is at the stage of issuance of process to levy execution that an interpleader summons can be issued by the Sheriff.
The Claimant/Respondent did not dispute this. He is contending that there was no execution because the document tendered to prove that possession was taken i.e Exhibit A is spurious.
By virtue of Section 97(2) (c) of the Evidence Act, the only acceptable secondary evidence of a public document is a certified true copy of the document and none other. The objective of Section 97(2) (c) is to ensure the authenticity of the document vis- a-viz the original, and the need for the preservation of public documents.
In Araka V Egbue (2003) 17 NWLR (2003) 17 NWLR (Pt. 848) 1 at 20 - 21, his Lordship Niki Tobi JSC made a profound statement on the rationale for certification.
He said:-
"In this age of sophisticated technology, photo tricks are the order of the day and secondary evidence produced in the context of Section 97 (2) (a) could be tutored and therefore not authentic. Photo tricks could be applied in the process
of copying the original document with the result that the copy, which is secondary evidence, does not completely and totally reflect the original and therefore not a carbon copy of the original."
I have read the cases cited by Applicants' counsel in support of his submission that courts have held that you don't need to tender certified true copy of public documents in all cases.
In Abacha V Fawehinmi (supra) at page 330 - 332 the Supreme Court held that the Detention Order in that case was a public document and the certified true copy of same should have been tendered. In Adejumo V Military Governor Lagos State (supra), the Supreme Court held at page 187 thus:
"...is it proper to object to a paragraph of an affidavit, or a document exhibited in an affidavit before the substantive action is heard or before it is known to what use the document will be put? We think not. In our view, objection should be taken when all the facts are put before the court and not at the preliminary stage..."
From this pronouncement, it is clear that objection can be taken to a document when the use for which the document is tendered is clear. If it is to prove a material point which can decide an application one way. or another, then the exhibit should be certified.
I am persuaded that this is the correct position of the law and I am emboldened in my view by the pronouncement of His Lordship Oguntade JCA (as he then was) in Fawehinmi V Inspector General of Police (2000) 7 NWLR (Pt. 665) 481 at 525
where His Lordship said:-
'The lower court also said that the stage at which the objection to the admissibility of Exhibits GF1, GF2 and GF3 was raised was premature. The lower court would rather
the objection was raised at the hearing of the substantive suit.
......It seems to me that where the exhibit concerned is the primary evidence by which it is sought to prove the truth of
a particular deposition in an affidavit, the documentary exhibit must satisfy the requirements of Section 97 of the Evidence Act. Otherwise it should be ignored or
discountenanced"
I am not aware of any appeal to the Supreme Court against this finding of the Court of Appeal and on the basis of the principles of stare decisis, I am bound by it.
Exhibit A is the only document by which it is sought to prove the possession of the property in dispute after the execution. I have examined the court's record. I am unable to find any copy of Exhibit A in the court's file. Exhibit A was also altered. No explanation was given for the alteration of the date on the document. I agree with claimant counsel- that Exhibit A is spurious. I discountenance it totally.
In the absence of Exhibit W, can this application still succeed? Like I said earlier/1 am empowered to examine the court's record and to make use of documents therein.
On the 25th of April 2006, this court granted claimants application for substituted service of the interpleader summons and other processes on the judgment creditors. . The court ordered that proof of service should include photographs showing the front view of the premises where the processes were pasted.
The court processes were pasted according to the affidavit of service dated 27th June 2006 at No 4 Ogedengbe Street, Agege, Lagos the property in dispute. The photograph attached show the building with an inscription on the wall stating "ID/3506/96 possession taken today 24/1/2006 by court order"
Affidavit of service of a Hearing Notice dated 1st November 2006 also show the inscription on the building. It is clear to me therefore that the Deputy Sheriff has already levied execution and taken possession of the property in dispute. Interpleader summons proceeding is therefore not available to the Claimant at this stage to claim the property. He has to come to court by a writ of summons.
In the final analysis, this application succeeds. This court has no Jurisdiction to continue with this interpleader proceedings. The Interpleader summons is accordingly struck out.
HON. JUSTICE M. O. OBADINA (MRS.)
JUDGE
9/2/2009.
Counsel: A. Lawal for the Claimant/Respondent
Lukman Ogunsetan for the Judgment Creditors/Applicants-
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