(20-4-09) FRN V. EVBODAGHIE

IN THE HIGH COURT OF LAGOS STATE
IN THE IKEJA JUDICIAL DIVISION
HOLDEN AT HIGH COURT No. 34 CRIMINAL DIVISION IKEJA
BEFORE HON. JUSTICE J.O.K. OYEWOLE
TODAY MONDAY THE 2ND DAY OF MARCH, 2009.

SUIT NO: 1D/64C/2007

BETWEEN

FEDERAL REPUBLIC OF NIGERIA....COMPLAINANT/RESPONDENT

AND

CHIEF SUNNY EVBODAGHE....................ACCUSED/APPLICANT

RULING

At the close of prosecution's case, the learned defence counsel Mr. Onyeke opted to make a no case submission. He submitted that the issue for determination is whether the prosecution has made out a prima facie case by establishing the elements of the offences the defendant is charged with sufficient in law to warrant his being called on to enter a defence by the court or whether the evidence adduced by the prosecution witnesses have been so discredited during cross-examination or is so manifestly unreliable that no reasonable tribunal can safely convict on it.

He referred to OMISORE VS STATE (2004) 28 WRN 106 at 126, IBEZIAKO VS C.O.P (1963) 1 ANLR 61 and ONAGORUWA VS STATE (1993) 7 NWLR (PT 303) 49.

He started by considering whether the prosecution has established the elements of the offences alleged against the defendant. On count 1 of attempt to obtain money by false pretences pursuant to Section 5, 8 (b) and 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, he outlined the ingredients of the said offence and submitted that the prosecution failed to establish any of the said ingredients.
He referred to JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264 and FRN VS OGATINMIR1N (2005) 3 QCCR 191 at 220.
On count 2 of use of premises for sending document containing false pretence contrary to Section 3 of the Advance Fee Fraud and other Fraud Related Offences Act No 14 of 2006, Mr. Onyeke once again outlined the legal ingredients thereof and submitted that the prosecution failed to tender any document containing false pretences that was sent from the defendant's premises or produce or give any evidence of the alleged recipient thereof thereby failing to establish the necessary ingredients thereof.

Moving to the offence of possession of documents containing false pretences pursuant to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act No 14 of 2006 contained in Counts 3,5,7 and 9 the learned lead defence counsel once again outlined the legal ingredients thereof. He referred to FRN VS ODIAWA (2006) 5 QCCR 1 at 88-89.

He submitted that for the offence here to be made out, the document involved in its tangible form must have been found in the physical possession of the defendant and that 1 being an illiterate it cannot be assumed that he knew or ought to have known the existence of the alleged documents herein without adequate .proof which was lacking in the case presented by the prosecution.

He urged the Court to dismiss the counts of possession and referred to Section 2 (b) Illiterates Protection Law, Cap 67 Laws of Lagos State, ALOBA VS FRN (2002) 14 WRN 45 at 53, ADETORO VS UBN PLC (2007) ALL FWLR (PT 396) 590 and ZARIA VS OKON (1959) SCNLR 562.

On the counts of forgery in counts 4, 6, 8, and 10 the learned defence counsel once more outlined the necessary ingredients thereof and referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 and BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264.

He submitted that the prosecution failed to show that the documents in question were forged or that it was the defendant who forged them.

He then proceeded to the second leg of his submissions alleging the non reliability of some key prosecution witnesses as a ground for upholding his no case submission. He referred to UBIERHO VS STATE (2004) ALL FWLR 1028 at 1044.

He reviewed the testimonies of PW1, PW2 and PW3 and submitted that they were sufficiently discredited under cross-examination to render them totally unreliable.

He urged the Court to hold that the prosecution failed to make out a prima facie and accordingly uphold the no case submission.

For the prosecution Mr. Ugwu opposed the no case submission and submitted that the issue for determination is whether the prosecution has made out a prima facie case which will require the Honourable Court to call on the defendant to enter his defence.
He equally set out the various legal principles guiding the consideration of no case submissions and referred to The Practice Direction of Lord Parker dated 9th February, 1962 and published in (1962) 1 All E.R 448, EKWENUGO VS FRN (2008) 10 MJSC 79 at 84-85, DABOH VS THE STATE (1977) 11 NSCC 309,
AMINU VS STATE (2005) 2 NWLR (PT 909) 180 at 191, YAU VS STATE (2005) 5 NWLR (PT 917) 1 at 22 and AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 414.

He reviewed the evidence adduced so far by the prosecution and outlined all the essential elements of the alleged offences. On the count of attempt to obtain money by false pretences, he outlined the essential elements of the alleged offence and reviewed the evidence adduced so far by the prosecution and then submitted that the said offence has been established by the prosecution.

He referred to AGWUNA VS A.G. FEDERATION (1995) 5 NWLR (PT 396) 418 at 438 and STATE VS OLADIMEJI (2003) 14 NWLR (PT 839) 57.

On count 2 of allegedly using premises for sending document containing false pretence, the learned prosecutor once again outlined the ingredients thereof and submitted that this count has been established. He referred to ODUA VS FRN (2002) 5 NWLR (PT 761) 615.

Moving to counts 3, 5, 7, and 9 of unlawful possession of documents containing false pretence, he equally outlined the legal ingredients and the adduced evidence and submitted that the alleged offence has been established. He referred to BLACK'S LAW DICTIONARY 7th Edition 1163.

Finally on the counts of forgery in counts 4, 6, 8 and 10 he similarly outlined the legal ingredients and the adduced evidence and submitted that these counts were equally established.

He referred to ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592, BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 at 277, OSONDU VS FRN (2000) 12 NWLR (PT 682) 483, AGWUNA VS AG FEDERATION (supra) and STATE VS OLADIMEJI (supra).

He went on to submit that the court is not to determine the guilt or innocence of the defendant at this stage and that the literacy level of the defendant is an evidential issue to be determined by the court at the end of trial and not an issue of address of counsel.
He referred to R VS COKER 20 NLR 62, EKWENUGO VS FRN (supra), OGUGU VS STATE (1994) 9 NWLR (PT 366) 1 at 38, NIGER CONSTRUCTION LTD VS CHIEF OKUGBENI (1987) 4 NWLR (PT 67) 787,
GIRGIRI VS ELF MARKETING (NIG) LTD (1977) 2 NWLR (FT 487) 368 at 378 and OLADEJO VS STATE (1994) 6 NWLR (PT 348) 101.

In totality, he urged the court to overrule the no case submission and call upon the defendant to enter into his defence.

I have duly considered the submissions of the counsel for the two sides.

The sole issue for determination herein is whether the prosecution has made out a prima facie case against the defendant sufficient for the court to call on him to enter into his defence.

The meaning of a submission that there is no case for a defendant to answer is that there is no evidence on which even if the court believes it, it could convict. The question whether or not the court does believe the evidence does not arise, nor is the credibility of the witnesses in issue at this stage.
See R VS COKER & ORS 20 NLR 62. DABOH VS STATE (1977) 11 NSCC 309 at 315 and STATE VS EMEDO (2001) 12 NWLR (PT 726) 131.

As well submitted by both counsel, a no case submission may properly be made and upheld when there has been no evidence to prove an essential element of the alleged offence or when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
See IBEZIAKO VS C-O.P (1963) 1 SCNLR 99, and STATE VS EMEDO (supra).

It must be pointed out that a prima facie case is not the same as proof, which comes later when the court is to make a finding of guilt of the defendant, it is evidence which if believed and uncontradicted, will be sufficient to prove the guilt of the criminal defendant.
See AJIDAGBA VS I.G.'P. (1958) SCNLR 60 and EMEDO VS'STATE (SUPRA) at 151-152.

It is also important to say that in a no case submission, the Court should be brief in its comments as only one side of the case has been heard and it would be premature and prejudicial to extensively pronounce on the evidence or facts of the case at that stage.
See 'CRIMINAL PROCEDURE IN NIGERIA, LAW AND PRACTICE' by OLUWATOY1N DOHERTY at 272-273, RVS COKER (supra), AJIBOYE VS STATE (1995) 8 NWLR (PT 414) 408 at 413 and CHIEF ODOFIN BELLO VS THE STATE (1967) NMLR 1 at 3.

Count 1 is attempt to obtain money by false pretences pursuant to Sections 5, 8 (b) and 1 (3) of the Advance Fee Fraud and Other "Fraud Related Offences Act No. 14 of 2006.
The particulars of the said Count 1 state that the defendant represented to a certain Richard Walter Dennis Jr that one late Johnson Rosland of Florida USA kept two trunk boxes containing the sum of US $9.5 million, Gold and valuable documents of properties with Inter Trust Global Security firm based in the United Kingdom.

To appreciate the intendment of the offence it is necessary to set out all the provisions of the sections of the Act involved.

"Section 1
(1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud -

(a) obtains from any other person, in Nigeria or in any other country, for himself or any other person;
(b) induces any other person, in Nigeria or in any other country, to deliver to any person; or
1 (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, is guilty of an offence under this Act.
(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be-done on the understanding that the benefit has been or will be paid for is guilty of an offence under this Act.
(3) A person who is guilty of an offence under subsection (I) or (2) of this section is
liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine.

5. (1) Where a false pretence which constitutes an offence under this Act is contained in a document, it shall be sufficient in a charge of an attempt to commit an offence under this Act to prove that the document was received by the person to whom the false pretence was directed.

(2) Notwithstanding anything to the contrary in any other law, every act or thing done or omitted to be done by a person to facilitate the commission by him of an offence under this Act shall constitute an attempt to commit the offence.

8 (b) A person who attempts to commit or is an accessory to an act or offence under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act."
TO BE CONTINUED…

The attempt to commit a crime is an act done with intent to commit a crime and forming part of a series of acts, which would constitute its actual commission if it were not interrupted. The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence are not sufficiently proximate to constitute an offence. See NWANKWO VS F.R.N. (2003) 4 NWLR (PT 809) 1 at 37-38 and JEGEDE VS STATE (2001) 14 NWLR (PT 733) 264.

The evidence adduced so far by the prosecution does not include that of the named victim in this Count, Richard Walter Dennis Jr. No document containing the alleged particulars emanating from the defendant to the said Richard Walter Dennis Jr. and none purportedly received by the said Richard Walter Dennis Jr. was tendered before the Court. No document addressed to the said Richard Walter Dennis Jr. by the defendant was tendered in evidence.

It seems to me that the submission of learned defence counsel, Mr. Onyeke that no case has been made out by the prosecution in the present circumstances to constitute sufficient prima facie case in respect of this Count is well founded, and I so hold.

Count 2 is alleged use of premises for sending document containing false pretences contrary to Section 3 of the Advance Fee Fraud and Other Fraud Related Offences Act 14 of2006.

The particulars are that the defendant permitted his premises to be used for sending documents containing false pretences.

The said Section 3 of the Act provides that:
"'A person who, being the occupier or is concerned in the management of any premises, causes or knowingly permits the premises to be used for any purpose which constitutes an offence under this Act commits an offence and is liable on conviction to imprisonment for a term not more than 15 years and not less than 5 years without the option of a fine."

It is worth reiterating that the specific offence here is that the defendant allegedly permitted his premises to be used for sending document containing false pretences. The evidence placed before the Court by the prosecution witnesses however did not include that any document was sent from the said premises. In fact the prosecution witnesses stated that no internet capability was detected on the computers recovered in the said premises.

There was also no evidence that any document said to contain false pretences emanating from the said defendant's premises was received by anyone.

In light thereof, I cannot but hold therefore that prima facie case was not made out in respect of this Count as well.

Counts 3, 5, 7 and 9 contain allegations of possession of documents containing false pretences contrary to Sections 6, 8 (b) and 1 (3) of the Advance Fee Fraud And Other Fraud Related Offences Act 14 of 2006.

The particulars thereof state that the defendant had certain documents containing false pretences in his possession. Sections 1 (3) and 8 (b) have earlier been set out while Count 1 was being considered. Section 6 provides as follows:
"A person who is in possession of a document containing a false pretence which constitutes an offence under this Act commits an offence of an attempt to commit an offence under this Act if he knows or ought to know, having regard to the circumstances of the case, that the document contains the false pretence."

The offence created is a strict liability one with heavy punishment, and legislations such as this must be narrowly interpreted.

See OKOROAFOR VS THE MISCELLANEOUS OFFENCES TRIBUNAL (1995) 4 NWLR(PT387)59 and JOKANMA VS MOWETE (2001) 6 NWLR (PT 709) 351.

Essential to grounding the offence herein is possession; which must be actual or constructive coupled with knowledge which again maybe actual or constructive depending on the circumstances.

The evidence of the prosecution witnesses is that the defendant is an illiterate who can neither read nor write.

The documents in question here are exhibits P31, P32, P33 and P38 and they were found in the virtual or soft form in a computer admitted by the defendant to be his. The evidence before the Court however is that the said computer was found in the possession of a third party not charged before this Court nor called as witness by the prosecution.

The evidence presented was that the said third party was working on the said computer when the investigators came upon him. The defendant was no where near the said computer but admits ownership thereof,

The offence created here in my humble view is not concerned primarily with ownership of location of the document in question but direct possession of the document thereof.

The documents in this instance were not found in their tangible or hard form on the defendant but located in the soft form in a computer possession of which computer was found on a third party different from the defendant.

Not being literate, the prosecution ought to lead evidence showing actual or constructive knowledge of the existence of the said soft copies of these documents by the defendant.

If a bag belonging to party A was carried by party B and a search thereof discloses prohibited items; proceedings for possession of the found prohibited items can only ordinarily proceed against party B found in possession of the bag in the absence of tangible conclusive evidence of the culpability of party A who owns the bag. Merely asserting that ownership of the said bag is in party A will not suffice, as party B since he had control of the said bag could put those prohibited items in it without the knowledge or awareness of party A who owns the bag. No evidence of actual or constructive knowledge by the defendant of the existence of the soft copies of the documents in question in the computer in which they were found was led by the prosecution and I have no choice than to hold that no case has been made out against him in respect of the said Counts 3, 5, 7 and 9 as well.

The remaining Counts 4, 6, 8 and 10 are that the defendant forged the same documents contained in counts 3, 5, 7 and 9 respectively contrary to Section 467 of the Criminal Code Cap C17, Laws of Lagos State of Nigeria 2003.

Section 467 provides that; "Any person who forges any document, writing, or seal, is guilty of an offence which, unless otherwise stated, is a felony and he is liable if no other punishment is provided, to imprisonment for three years." While sub paragraphs 2 (a) to (q) thereof provide aggravating circumstances which could increase the punishment to imprisonment for fourteen years.

Forgery is defined in section 465 of the Criminal Code as follows:
"A person who makes a false document or writing knowing-it to be false, and with intent that it may in any way be used or acted upon as genuine, whether in Lagos State or elsewhere, to the prejudice of any person, or with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act, whether in the State or elsewhere, is said to forge the document or writing."

The above definition has been held by the Supreme Court to include not only a document, which tells a lie, but also one, which tells a lie about itself, and that it further includes documents made with intent to defraud. See BABALOLA VS STATE (1989) 4 NWLR (PT 115) 264 per NNAEMEKA-AGU JSC at 277.

The elements of the offence of forgery are:
1. That there is a document in writing.
2. That the document or writing is forged.
3. That the forgery is by the accused person.
4. That the accused person knows that the document or writing is false.
5. That the accused intends that the forged document be acted upon to the prejudice of the victim in the belief that it is genuine. See ALAKE VS STATE (1991) 7 NWLR (PT 205) 567 at 592.

A document is said to be forged if the whole or part of it is made by a person with all falsity and knowledge of the falsity and with intention that it may be used or acted upon as genuine to the prejudice of the victim. See OSONDU VS FRN (2000) 12 NWLR (PT 682) 483 at 504.

The prosecution led no evidence of actual forgery of the said documents by the defendant said by its witnesses to be an illiterate.

It also failed to lead evidence that the defendant procured a person to forge the said documents.

It is essential that the evidence adduced by the prosecution goes beyond merely stating that the documents in question were found in a computer belonging to the defendant when the said computer was found in possession of a third party working thereon. The prosecution must show that the defendant knew about the existence of the said documents and either forged it or procured someone to do it.

Mere acknowledgement by a defendant stated to be an illiterate, of ownership of the computer from which the documents alleged to be forged were printed cannot be conclusive and would fall short of the requisite legal ingredients.

In the circumstances thereof I also hold that prima facie case was not made out in respect of Counts 4, 6, 8 and 10 as well.

In totality thereof, I hold that the prosecution did not make out a prima facie case against the defendant in respect of any of the Counts alleged against him herein. I uphold the no case submission and I hereby discharge and acquit the defendant in respect of each of Counts 1 to 10 herein,




Hon. Justice J.O.K Oyewole

Appearances:

Mr. K.M.O. Olusesi with him Mrs. A. Abdulahi for the prosecution.

Mr. E.D. Onyeke with him Mr. Ahamisi and Miss M.O. Adeisa for the defendant.