FGN V CHIDOZIE HENRY (II)

SQUIB CASE LAW

Continued from vol. 8 number 28

He was asked under cross-examination whether he knew his brother to be a Pastor for him to be addressed as Pastor Emmanuel. He said he did, that his brother said he is a soul winner in his church and they call him Pastor. Also, his brother said that Abbey Abraham is a member of his church.

He said in Exhibit P9 that he did not know what his brother is doing in Malaysia and where he lives but he has been sending money to their parents through Western Union and that this was the 1st time of his sending money to their parents through him.

Contrary to what he said in Exhibit P9 however, under cross-examination, he said his brother is a business agent in Malaysia. Alaba traders used to contract him to source for products for them and he adds his own money. He also said under cross-examination that his brother has an apartment in Malaysia contrary to his statement in Exhibit P9. In his evidence in court he said he does not know how to operate an e-mail, that he sends his sister to open his mail. Also that he goes to business centre to check his mail but in Exhibit P9 he said he sent a mail to Obinna to ask him about the reference number meaning that he can operate his e-mail.

There are contradictions and inconsistencies in the evidence on PW1 and that of the accused and Exhibit P9. The position of the law is that if established that an accused person lied under oath or that there are inconsistencies in his evidence does not establish his guilt or shift the burden of proof. Omogodo V State (1981) 5 SC 5, the weight the court will attach to his evidence is another consideration.

The accused person was asked about the two international sports found in his possession Exhibits P2 and P3. He said under cross-examination that his brother kept them with him when he came home for Christmas and he did not come for them before going back to Malaysia and he did not know how he went back or probably he had another passport. These two passports have different names but carry the photograph of Chidiebere Obinna.

From the evidence of the accused, it is clear that there was regular phone contact with his brother. That he did not ask his brother how he managed to get back to Malaysia without the passports he left with him, I find difficult to believe. I strongly believe the accused person knows that his brother is not a straightforward person and not doing genuine business in Malaysia contrary to his evidence under cross-examination that he did not ask him about his business.

What I am unable to make as a finding is that he took part in the criminal design of the 2nd accused to swindle Abbey Abraham although there is a strong suspicion that he probably knows about the deal. This suspicion does not amount to circumstantial evidence to link him with the offence.

In this case, it would have helped the case of the prosecution a great deal if they had contacted Abbey Abraham directly. The e-mail of Abbey Abraham Exhibit P18(iii-iv) in law is documentary hearsay. The e-mail came to Intercontinental Bank's website. PW1, PW2 and PW3 testified of the truth of the contents of the e-mail of which they had no personal knowledge. The credibility of the maker and the truth of all the contents of the mail were not tested under cross-examination. See Ijioffor V State (2001) 9 NWLR (Pt. 718) 371, Opolo V State (1977) ANLR 312 at 316, Subramanian V Public Prosecutor (1956) 1 WLR 965.

A document will amount to documentary hearsay where the person tendering cannot vouch for their contents because the information therein did not come from his personal knowledge. He is as it were a stranger to the document. Myers V DPP (1965) AC 1001.


The proper role of the court in a criminal trial is to evaluate all the evidence before it and see whether the prosecution discharged the onus on it to prove the allegations beyond reasonable doubt. If there is insufficient evidence or where the evidence of the prosecution was seriously discredited under cross-examination thereby creating doubt in the mind of the court on the culpability of the accused, the benefit of the doubt must be given to the accused person. Ibeh V State (1997) 1 NWLR (Pt. 484) 632.
I hold that the prosecution failed to prove and there are no compelling facts from which the court can infer that the accused person and Chidiebere Obinna Emmanuel conspired together to obtain $8,000 from Abbey Abraham under false pretences. I find the accused person not guilty of Count 1 also.

I now go to Counts 4 and 5.
Section 427 of the Criminal Code Cap C18 Laws of Lagos State provides:-

''427. Any person who receives anything which has been obtained by means of any act constituting a felony or misdemeanor, or by means of any act done at a place not in Lagos state, which if it had been done in the state would have constituted a felony or misdemeanor and which is an offence under the laws in force in the place where it was done, knowing the same to have been so obtained, is guilty of a felony."

The offence of receiving stolen property consists of these ingredients:

a. That the property was obtained by means of a felony or misdemeanor i.e. by stealing.

b. That the accused was in possession or took part in concealing or disposing off the property.

c. That the accused had knowledge that the property was obtained as in (a) above. Okoroji V State
(2002) 5 NWLR (Pt 759) 21.

The felony in this case is not stealing but fraud. An accused charged for obtaining by false pretences can also be convicted for stealing where the evidence so warrants even if he was not charged for stealing. See Section 174 of the Criminal Procedure Act and the case of Babalola V State (1989) 4 NWLR (Pt. 115) 264 at 286.

There is no doubt from the facts of this case that the $16,000 was obtained by Uche Obinna Chidiebere by fraud. The proceeds of the fraud was received in Nigeria by the accused person.

In the case of Osakwe V Queen (1963) NSCC (Pt. 3) 291, the Supreme Court held that a person cannot be convicted for receiving a stolen thing merely because he was willing to receive it; proof is needed that he, whether alone or jointly with another, has already had the thing in his possession or already aided in concealing it or disposing of it when he knew it was stolen. See State V Nnolim (1994) 5 NWLR (Pt. 345) 394.

The crucial determinant is the guilty knowledge that the thing received was stolen or obtained by fraud. Defence counsel argued that the requisite mens rea is absent in this case. That the accused person did not know that the money was illegally obtained by his brother.

The facts from which inference of knowledge that a property is stolen can be drawn include (i) manner of receipt or delivery of the goods allegedly stolen (ii) the time of delivery (iii) the price paid for the property or goods (iv) the actions upon delivery. Okoroji V State (supra) Ekpo V State (2003) 17 NWLR (Pt. 849) 392

In this case, I have held that there is no acceptable proof that the accused person knew that his brother fraudulently obtained the money but there is a strong suspicion that he did.

The word suspicion means ordinarily the act of suspecting, state of being suspected or the imagining of something without evidence or on slender evidence. Niki Tobi JCA (as he then was) in Onagorowa V State (1993) 7 NWLR (Pt. 303) 49. Suspicion has no place in law and is no substitute for proof by evidence. Kutigi JSC (as he then was) in Alake V State (1992) 9 NWLR 265) 265 stated:

"Guilty knowledge cannot be founded on suspicion.

For there to be a crime, the physical conduct (the actus reus) must be accompanied with a guilty mind (the mens rea). The intent and the act must both concur to constitute the crime. Babalola V State (1989) 3 NSCC 97.

Since the requisite mens rea is not proved in this case, the accused person cannot be convicted under Counts 4 and 5. I accordingly find him not guilty of Counts 4 and 5 also.

In all, I hold that the prosecution failed to prove all the counts against the accused person beyond reasonable doubt. He is accordingly discharged and acquitted on all the counts.

M.O. OBADINA (MRS.)
JUDGE
19/2/2008.

Counsel: A. M. Olatule for the Prosecution
Adesina Ogunlana for the Accused Person