⦿ CASE SUMMARY OF:
Elvis Ezeani v. Federal Republic of Nigeria (2019) – SC
by NSA PaulPipAr
Federal Republic Of Nigeria
⦿ LEAD JUDGEMENT DELIVERED BY:
John Inyang Okoro, JSC
* FOR THE APPELLANT
– V.I.P. Nwana, Esq.
* FOR THE RESPONDENT
– Chile Okoroma, Esq.
⦿ FACT (as relating to the issues)
This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on 27th day of January, 2017 wherein the Court below affirmed the decision of the High Court of Lagos State which convicted and sentenced the Appellant to 10 years imprisonment in each of the three counts of the charge of conspiracy to obtain money by false pretence (Count 1) obtaining money by false pretence (Counts 2 and 3) contrary to Sections 8 (a) and 1 (3) AND 1(1) (a) and 1 (3) of the Advance Fee Fraud and Other Related Offences Act Cap A 6, Laws of the Federation of Nigeria, 2004 respectively.
Dissatisfied with the stance of the learned trial judge, the Appellant appealed to the Court of Appeal which, after hearing argument from both sides, dismissed the appeal and affirmed the conviction and sentence of the appellant.
Appellant is again not satisfied with the judgment of the lower Court and has further appealed to this Court.
1. Whether the Court below was right when it affirmed the judgment of the trial Court to the effect that the Respondent proved its case against the Appellant beyond reasonable doubt on each of the three counts of the information and therefore convicted him accordingly.
2. Whether the Court below was right when it held that the sentence of the Appellant to 10 years imprisonment respectively on the three counts of the information under the Advance Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004 by the trial Court with effect from date of his remand in prison custody by the Court was in accordance with Section 315 of the Administration of Criminal Justice Law, 2011.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, both the trial Court and the Court of Appeal have found and held that the prosecution witnesses established a prima facia case against the appellant. That is to say, that the prosecution has proved its case beyond reasonable doubt against the appellant. Both Courts have held that the appellant and his confederates received the sums of money as per the charge from the PW1 but failed to give to him the $250,000.00 as agreed. In fact, there was no such dollars in Ghana as evidence reveals. These are concurrent findings of fact of the trial Court and the Court of Appeal and this Court does not, in practice, disturb such concurrent findings unless they have been shown to be perverse.
ii. The appellant having, by his own testimony located himself in the midst of the transaction vis-a-vis the evidence led by the prosecution against him, was duty bound to explain what the N13.5 million and $146,000.00 the PW1 and PW2 paid to them were all about. He also had a duty to show to the Court that the $250,000.00 was paid to the PW1, through Nurudeen in Ghana. Alas, he failed to offer any credible explanation.
iii. On the counts of obtaining by false presence, the transaction has shown clearly as follow: 1. That there was a pretence. 2. That the pretence emanated from the accused persons including the appellant. 3. That the pretence was false. 4. That the appellant and his co-accused person knew that it was false. 5. That there was an intention to defraud 6. That the monies obtained from the PW1 was capable of being stolen, and 7. That the appellant induced the owner of the money to transfer his whole interest in the property. All the above ingredients of the offence of obtaining by false pretence are clearly seen in the transaction which gave rise to this appeal. There is no doubt about that.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. As was observed by the learned counsel for the Respondent, this undoubtedly fetters the discretion of the Court from sentencing any person convicted under the Act, including the appellant, for any of the said offences to any term of imprisonment less than 10 years. It is trite law that where a law prescribes a mandatory sentence in clear terms, the Courts are without jurisdiction to impose anything less than the mandatory sentence as no discretion exists to be exercised.
ii. The submission of counsel for the appellant and the cases cited and relied by him are in relation to where a Court has discretion in reducing sentence. This is not the case here.
iii. There is nothing in the record of appeal, particularly during the proceedings before the trial Court to show that the assessment or statistics of the period the appellant spent in detention before he was arraigned at the Trial Court was placed before the Court. Such statistics and calculations by the learned counsel for the appellant in his address does not by any stretch of imagination become evidence upon which a Court can act on. The law is settled that no amount of brilliant address of counsel can make up for lack of evidence to prove or defend a case in Court.
iv. To make matters worse for the Appellant, the PW3, during his examination in Chief at page 138 of the record of appeal stated that the Appellant was granted Administrative bail in 2007 and he jumped bail from 2008 till 2014 when he was rearrested. This piece of evidence was not controverted by the Appellant. This seals the lid on his case. I agree with the Court below that the learned trial judge was right to have directed the sentence of the appellant to take effect from 28/4/2015, the date he was remanded in prison by the trial Court as there was no evidence of any other date of detention before the Court.
– Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004.
⦿ SOME PROVISION(S)
Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria, 2004, 2004 provides: “(3) A person who is guilty of an offence under Subsection (1) or (2) of this section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine.”
Section 315 of the Administration of Criminal Justice Law of Lagos State 2011 which states as follows: “A sentence of imprisonment takes effect from and includes the whole of the day of the date on which it was pronounced, provided that in reckoning the length of imprisonment, the Court shall direct that any period of detention prior to conviction shall be taken into consideration.”
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
The law is trite that a reply brief is not an opportunity to improve the argument of the appellant. Rather, it is to answer the arguments in the respondent’s brief which were not taken in the appellant’s brief. – Okoro, JSC. Ezeani v. FRN (2019)
Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the finding of facts. – Okoro, JSC. Ezeani v. FRN (2019)
Where the prosecution has led credible evidence before the Court which establishes a prima facie case against the accused, it is the duty of the accused to lead evidence to explain to the Court why the prosecution’s evidence should not be believed. – Okoro, JSC. Ezeani v. FRN (2019)
As conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties which tend to actualize a common purpose in aid of the agreement. – Okoro, JSC. Ezeani v. FRN (2019)
The law is settled that no amount of brilliant address of counsel can make up for lack of evidence to prove or defend a case in Court. – Okoro, JSC. Ezeani v. FRN (2019)
An issue is based on concrete matters of Law or fact or both Law and fact and is not based on unestablished matters of law or facts or both. – Onnoghen, JSC. Ezeani v. FRN (2019)