By correspondent.
Full judgment.
THE MAGISTRATE COURT OF LAGOS STATE IN THE IKEJA MAGISTERIAL DISTRICT HOLDEN AT COURT NO. 17, SAMUEL ILORI COURT HOUSE, OGBA
TODAY, THE 26TH DAY OF JULY 2018
BEFORE HIS HONOUR; O. A. AKOKHIA (MRS.)
CHARGE NO: MIK/W/138A/16
COMMISSIONER OF POLICE
VS.
OMOLOLA OLUWASEYE AJEIGBE
RULING
The defendant was arraigned before this honourable court on a four (4) – counts charge bordering on conspiracy to commit fraud, obtaining by false pretence, stealing and Threatening to kill. The charge was read to the Defendant and she pleaded “Not Guilty” to all the four counts of the charge; this case was subsequently set down for trial.
The prosecution opened its case on 6/6/17 with one OLALEKAN AKINSIKU- the father of the nominal complainant, testifying as PW1; he gave his evidence in chief, was cross examined and re-examined on, the same day. This matter was subsequently adjourned for PW2- the investigating Police Officer (IPO)- to come and testify.
However, despite several adjournments, the prosecution was unable to secure the IPO’s attendance in court to give evidence in respect of this case. Consequently on 17/1/18 upon application by the defence counsel, the case for the prosecution was closed and this matter was adjourned for defence.
Thereafter, counsel on behalf of Defendants filed a “No case submission” dated 15th May 2018 contending that prosecution has not made any case for the Defendant to answer and be convicted upon.
The prosecution did not file any response to the “No case submission” and so, upon being satisfied that the prosecution had been duly served as evidenced by the acknowledged copy attached, as well as the affidavit of service filed by the Sherriff of this Honourable court, defence counsel was allowed to move the court upon “No case submission” filed.
In making his submission, counsel posited a sole issue for determination, to wit: –
“whether the prosecution has made out a prima facie case of conspiracy to commit fraud, obtain money by false pretence, stealing and threat to kill against the Defendant”.
I have read though the submissions made by learned counsel for the Defendant; in making a finding as regards whether the prosecution has established prima facie case against the Defendant, it is prudent to take a look at the definitions as well as essential ingredients of the alleged offences.
As regards the allegation of conspiracy; the general definition assigned to the word “conspiracy”, in the realm of criminal law, is that it is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with intent to achieve the agreement’s objective.
Conspiracy means the meeting of the minds of the conspirators, it consists of intention of two or more and agreement by them to do an unlawful act or to do lawful act by an unlawful means. Conviction for conspiracy is usually predicated on circumstantial evidence, which must be of such a quality that irresistibly compels the court to make an inference as to guilt of the accused. (Emphasis, mine)
See; STATE v. SALAWU – NSCQR VOL. 48 (2011) Pg. 290 at 325
POSU v. STATE – NSCQR VOLUME 45 2011 PG. 713 at 730
The supreme court had this to say on how the offence of conspiracy is proved.
“… to establish an offence of conspiracy against an accused person, the prosecution is required by law to prove the following:
That there was an agreement between two or more persons to do or cause to be done, some illegal act or an act which is not illegal but by illegal means;
Where the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the agreement.
Specifically, that each of the accused individual participated in the conspiracy.
….it is an offence that is proved by circumstantial evidence that is inferred from the circumstances surrounding a particular case. This is because it is difficult to prove it by direct evidence being a crime that is usually hatched in secret, a fact well recognized by the law…”
CHUKWUEMEKA AGUGUA v. STATE – ELC (2017) 2325 SC page 1
The testimony of PW1 as regards the alleged offence(s) committed by the Defendant in this instant suit is as follows;
“I know the Defendant; I got to know her when my son phoned me sometime in December 2015 to inform me that he has found a lady he wants to marry. By December 2016, he called me on phone to tell me that I should go with the mother to go and meet the family of the said lady. A date was fixed for the introduction (i.e 17/1/16) and we went to meet the father of the lady (i.e the Defendant)
After the ceremony, I expected to hear from my son as regards when his wife-to be would be coming. When I questioned him about this, he told me that there was a misunderstanding between them; that the Defendant duped him of about N4,million- plus.
He explained that; what happened was that they (i.e Defendant and my son) opened a joint account for the purpose of processing visa. He said the Defendant told him she was no longer interested in the relationship and that he would have to forfeit the money in the account. Since there was no way of settling their differences, I followed my son to the Police Head Quarters in Ikeja here to make a report.”
During cross examination he acknowledged the fact that he did not mention that the Defendant duped his son in the statement he made to the police (Exhibit B) also acknowledge the fact that he did not mention any account in his statement to the police. He said he was not aware that part of the money referred to was directed by his son for the Defendant to arrange for visa to join him in the UK. He agreed with the suggestion that it was normal for a man proposing to marry a woman to spend money and gifts on that woman and that it is not an offence for a woman to receive such money from her fiancée as gift.
Going through the foregoing excepts of the testimony of PW1, there is no circumstantial evidence disclosed therein, by which this court could draw an inference of their being a meeting of minds or an agreement between the Defendant and any person(s) for the purpose of committing the alleged offences stated in the charge before this court. No other person was mentioned except the Defendants’ fiancée who is the nominal complainant in this matter and it defies logic and common sense to infer that Nominal Complainant conspired with the defendant to defraud himself. This Honourable court therefore agree with the submission of learned counsel that the prosecution has failed to establish the allegation of conspiracy leveled against the Defendant
On the allegation of fraud, obtaining money by false pretence and stealing; it is said that fraud is an international perversion of truth for the purpose of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which should have been disclosed, which deceives and is intended to deceive another so that he shall act upon it to his legal injury. As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently.
NTUK v. NIGERIAN PORTS AUTHORITY – NSCQR Vol. 31 (2007) pg. 430 at 472
EDWIN UDEMEGBUNAM v. FRN – NSCQR Vol. 26 (2006) page 257 at 304
The felony of obtaining by false pretences is committed when a person by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen or induces any other person to deliver to any person anything capable of being stolen. In order that this crime may be committed there must be an intent to defraud… an intent to defraud is an intent to induce another by deceit to act to his detriment or contrary to what would otherwise be his duty for the offence of obtaining by false pretences to established, the prosecution must prove that the accused had an intention to defraud and the thing is capable of being stolen. An inducement on the part of an accused to make his victim part with a thing capable of being stolen or make his victim deliver a thing capable of being stolen will expose the accused to imprisonment for the offence.
See generally;
OKONKWO AND NAISH – “Criminal Law in Nigeria”, second Edition published by Spectrum Law Series, pg. 309
EDWIN UDEMEGBUNAM v. FRN Supra at pg. 306
The ingredients of the said offence of obtaining property by false pretence was enumerated by the supreme court in IKECHUKWU IKPA v. STATE – ELC (2017) 2384 SC pg.1 as follows;
A pretence was made by the accused person;
The pretence was false;
The accused knew the pretence to be false or did not believe it to be true.
The pretence operated on the mind of the person from whom the property was obtained; and
Some property must have been obtained as a result of the pretence
On the offence of stealing, section 278(1)(a)(b) of the criminal law of Lagos state 2011 provides;
“Any person who dishonestly takes the property of another person or converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.”
Taking a look at the testimony of PW1 once again, I must state that there is nothing to show that the Defendant misrepresented facts or deceived or applied any form of inducement on the Complainant to make him part with the money alleged to have been taken. There is nothing in the in the testimony of PW1 pointing to a dishonest taking or conversion of the complainant’s money by Defendant. Rather the evidence adduced points to there having been some filial relationship-gone-sour between the Nominal Complainant and the Defendant. Moreover, the prosecution failed to adduce evidence to show that any money was taken rather the evidence of PW1 is to the effect that the money alleged to have been taken is in a joint account held by the Nominal Complainant and Defendant. There is equally no evidence proffered to substantiate the allegation of threat to kill; there is nothing in the evidence of PW1, to show that the Defendant made any phone call threatening the life of the Nominal Complainant.
In the circumstances, this Hounourable court finds that the prosecution has failed to establish any of the essential ingredients of the alleged offences; no case has been made against the Defendant sufficiently to require her to present a defence in this matter. I therefore uphold the submissions made by learned defence counsel and Defendant is hereby discharged on all the 4 (four) counts of the charge preferred against her in this matter.
