Effect of Failure to State Offence or Particulars Required in Charge
Facts
The Appellant obtained the sum of N399,000.00 (Three Hundred and Ninety
Nine Thousand Naira) from a certain Mrs. Justina Okeke (PW2), on the understanding that he would supply her with gold wristwatches and trinkets which he claimed were to be cleared at the Wharf. After collecting the money from PW2, he absconded without supplying the goods, but was later arrested by the police. The Appellant was consequently, arraigned before the High Court of Imo State on a two count Charge of conspiracy to commit felony (count one) and obtaining money by false pretence (count two).
At trial, the Appellant testified solely in his defence. He claimed that PW2 framed him, because he refused to marry her daughter (PW1) who was his girlfriend. At the conclusion of trial, the Court found that the Prosecution proved count two of the Charge, but failed to prove count one of the Charge. Dissatisfied, the Appellant unsuccessfully appealed to the Court of Appeal and further appealed to the Supreme Court.
Issues for Determination The issues considered by the Supreme Court were as follows:
(i) Whether the Court of Appeal was right to hold that the Charge contained in count two of the Information was substantially in conformity with the provisions of Sections 151, 338 and 463(1) of the Criminal Procedure Act;
(ii) Whether the Particulars of offence related to a future event or representation;
(iii) Whether the Prosecution proved its case beyond reasonable doubt;
(iv) Whether the trial Court considered the Appellant’s defence or evaluated his evidence, before convicting him for the offence charged against him.
Arguments On issue one, Counsel for the Appellant submitted that, the law mandates the Prosecution, when drafting a Charge, to follow the words of the provisions of law under which the Charge was laid. He argued that the Charge in this case, did not reflect the full details of particulars of the offence for which he was charged. He argued that Section 1(1) of the Advance Fee Fraud and Other Fraud Related Offences Decree under which the Appellant was charged, makes “intent” an essential element of the offence, but the words - “and with intent to defraud” - was not part of the said particulars. He opined that where an offence consists of doing an act with particular intent or manner, the Charge must allege it was done with that intent or manner. He also contended that Section 1(3) of the Decree did not disclose any definition of offence, and that the Appellant was only charged under a punishment Section of the offence, which provision in law was not expressly stated in the Statement of Offence. Consequently, the Appellant was not charged under any substantive law. He cited A-G FEDERATION v DR. CLEMENT ISONG (1986) 1 WLRN 75.
Counsel for the Respondent on the other hand, argued that the Charge complied with the requirements stipulated in Section 151 of the Criminal Procedure Act by stating the specific name of the offence, and that the law permits the use of the punishment Section of the offence in drafting the Charges. He submitted further that, the Charge used the term “fraudulently obtained” which is defined to mean “intended to deceive somebody”. Therefore, the words “with intent” are clearly embedded in the Charge. He stated that sufficient notice of the Charge was given to the Appellant, and he was not misled. He cited OKOYE v POLICE (1964) NMLR 146.
On issue two, Counsel for the Appellant contended that the Particulars of offence in the Information relate to a future promise, future conduct and representation. He argued that the portion of the Particulars of offence which says “under false pretence that you will supply to her golden wristwatches and trinkets”,
related to a future representation. It was therefore, wrong and incompetent. He relied on the cases of ACHONRA v IGP (1958) 3 FSC 30 and ANU v IGP (1958) 3 FSC 38. The Respondent countered the argument and submitted that, the Particulars of offence do not relate to any future event or representation, as it disclosed that the Appellant knew he had no trinkets to supply to the Complainant at the time of the representation.
On the third issue, Appellant contended that there were contradictions in the evidence of the Prosecution, and where such contradictions are on material facts which are not explained by the Prosecution, the trial Court must not be left to speculate or proffer explanations for the contradiction. Counsel argued that, where the Court entertains even the slightest doubt, it should be resolved in favour of the Accused person. The Respondent on the other hand argued that the Prosecution proved the ingredients of obtaining by false pretence against the
Appellant, and that there were no material contradictions in the evidence of the prosecution witnesses.
On the fourth issue, the Appellant's Counsel submitted that the allegation against the Appellant, was orchestrated by PW2’s family out of malice, for his refusal to marry PW1. He stated further that, the Appellant was not cross-examined on this point which is the root of the problem, and submitted that where a party is not cross-examined on a piece of evidence, and there is no counter-evidence, the court is bound to believe the evidence as true. He stated that the trial Court failed to consider his defence, to enable it determine whether it was false or unlikely. Counsel also argued that by Section 12 of the Advanced Fee Fraud and Other Related Offences Act (as amended), the trial Court lacked the jurisdiction to try offences under the Act before the 5th June, 2006, unlike the Federal High Court.
It was the submission of Counsel for the Respondent on this issue, that the trial Court properly evaluated the evidence of the Prosecution and Defence Witnesses before making clear findings of facts. On the issue of jurisdiction, the Respondent argued that the jurisdiction of the trial Court to try offences under the Act, was never removed.
Court’s Judgement and Rationale On the first issue, the apex Court considered Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Decree (the Decree) to hold that the offence of obtaining property by false pretence is defined in subsections (1) and (2) of Section 1 of the Decree and the penalty for the offence is stated in its subsection (3). Therefore, count two of the information should have read “obtaining money by false pretence contrary to Section 1(1) or (2) of the said Decree and punishable under Section 1(3) of the Decree” as opposed to “obtaining money by false pretence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Decree.” The Court however, held that by Section 166 of the Criminal Procedure Act (CPA), no error in stating an offence or particulars required to be stated in the Charge and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the Accused was in fact misled by such error or omission. The Court also held that by Section 167 of the CPA, any objection to a Charge for a formal defect on the face of it shall be taken immediately after the Charge has been read over to the Accused and not later. The Court concluded that the Appellant was not misled, and that no miscarriage of justice was occasioned thereby.
On the second issue, the Supreme Court held that Section 1(1) and (2) of the Decree creates the offence of obtaining property by false pretence. In this case, the Appellant is alleged to have fraudulently obtained the sum of N399,000.00 from PW2, under a false pretence that he would supply her with the jewellery that he knew he did not have. It was an existing fact, and not a representation to do any act in the future. The Court held that the cases of ACHONRA v IGP (supra) and ANU v IGP (supra) are distinguishable from the instant case, as the alleged representations in the said cases, were clearly to do future acts.
In resolving the third issue, the Court opined that it is not every minor contradiction in the evidence of witnesses that matters. For a trial judge to disbelieve a witness, the contradiction is his evidence must be on a material point. KALU v STATE (1988) 3 NSCC 1. Thus, the Court of Appeal was right when it held that the alleged contradictions, could be held to be material since they did not impugn the Prosecution’s case.
On the fourth issue, the Court held that, the power and privilege of a trial Court to believe one side or disbelieve the other, can only be questioned on appeal, if it is against the drift of the evidence when considered as a whole. Where there is evidence to support concurrent findings of fact by two lower courts, such findings of facts will not be disturbed, unless there is significant error apparent on the record and in this case, there is nothing perverse about the decision of the trial Court. On the issue of jurisdiction raised by the Appellant, the Supreme Court upheld the decision of the Court of Appeal, that there was no time when the High Court of a State was deprived of jurisdiction to try cases of Advance Fee Fraud.
Appeal Dismissed.
Representation: J.C. Okafor for the Appellant K.A. Lewenyan (Mrs) for the Respondent. Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR))
"BY SECTION 166 OF THE CRIMINAL PROCEDURE ACT (CPA), NO ERROR IN STATING AN OFFENCE OR PARTICULARS REQUIRED TO BE STATED IN THE CHARGE, AND NO OMISSION TO STATE THE OFFENCE OR THOSE PARTICULARS, SHALL BE REGARDED AT ANY STAGE OF THE CASE AS MATERIAL, UNLESS THE ACCUSED WAS IN FACT MISLED BY SUCH ERROR OR OMISSION"