REQUIREMENT OF THE LAW WHERE A WITNESS IS TO BE CROSS-EXAMINED AS TO PREVIOUS STATEMENTS IN WRITING

CASE TITLE: FRN v. EMIRATES AIRLINES & ORS (2021) LPELR-54658(CA)

JUDGMENT DATE: 11TH JUNE, 2021

PRACTICE AREA: CRIMINAL LAW AND PROCEDURE

LEAD JUDGMENT: OBANDE FESTUS OGBUINYA, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION

This appeal borders on the Offences of Conspiracy, Stealing and Obtaining by False Pretences.

FACTS

This appeal interrogates the correctness of the decision of the Federal High Court, Lagos Division, coram judice: M.B. Idris, J. (now JCA), delivered on 10th April, 2018. The appellant and the respondents were the complainant and accused persons respectively.

On 19th December, 2007, the substantive complainant, Mr. Orji Prince Chu-Ikem, went to the Murtala Mohammed International Airport, MMIA, Lagos, Nigeria to take a flight to travel to China via Dubai, Hong Kong. He had four (4) bags – two (2) big bags and (2) hand luggage. The two big bags contained samples of items he intended to purchase in China. He checked them in at the counter and two tags were issued to him. Then, a friend’s wife, Mrs. Uchenna Eze, informed him that one man, Olisaemeka Ugwunze, wanted him to assist him give money to his business partner in China.

It was the sum of $930,000.00. His was $700,000.00. The total sum was $1,630,000.00 which was put in the two hand luggage. Olisaemeka Ugwunze negotiated with a police officer who facilitated the substantive complainant’s passage at the security counter. At the security counter, he declared the content of the bags in a declaration form. He was given a copy of it which he put inside the bag. At the mouth of the aircraft, he met some people wearing the tags of the first – third respondents. Those with the tags of the first and third respondents asked him to drop the two bags so that they would be kept with the pilot at a safe compartment. He conceded, after much argument, and tags were pasted on the bags. Tags were also put in his passport as evidence.

On 21st December, 2008, he arrived China but could not see the four bags at the terminal. He searched for them in China and Dubai for weeks but could not find them. In Nigeria, he reported the matter to the Special Fraud Unit (SFU). A part owner of the money, one Chief Bernard Okeke, reported the matter to the Economic and Financial Crimes Commission (EFCC) which led to the arrest of Olisaemeka Ugwunze, himself and others. Subsequently, in May, 2008, he wrote a petition to the police at the Special Fraud Unit (SFU). After due investigation of the allegation in the petition, the appellant arraigned the respondents before the lower Court in an 11 – count amended charge for the offences of conspiracy to steal four bags from the complainant, stealing of the four bags, conspiracy to defraud, conspiracy by fraudulent tricks to obtain the bags, obtaining the bags by fraudulent tricks, conspiracy to obtain the bags by false pretences, obtaining the bags by false pretences, conspiracy to willfully destroy evidence, willful destruction of evidence, conspiracy by failure to report an international transfer of $1,630,000.00 to the Central Bank of Nigeria and failure to report an international transfer of the said sum of $1,630,000.00 to the Central Bank of Nigeria contrary to the provisions of 516, 390 (9), 422, 421, 419, 123, and 15(2) (b) and (3) of the Criminal Code Act, Cap. C 38, Laws of the Federation of Nigeria, LFN, 2004 and Money Laundering Act, Cap. M30, LFN, 2004 respectively.

Following the plea of not guilty, the lower Court had a full-scale of determination of the case. In a considered judgment, the lower Court dismissed the case and discharged and acquitted the respondents of all the offences.

The appellant was dissatisfied with the decision hence this appeal.

ISSUES FOR DETERMINATION

The appeal was determined on the following issues:

1. Whether the trial Court was right when it held that the 5th Respondent’s denial of 31st of October, 2008 cannot transform to an admission on November 1, 2008, when the issue submitted for its determination was for it to make a pronouncement on the position of law concerning an accused person giving testimony in Court which is inconsistent with his pretrial statement?

2. Whether the lower Court was right when he held that he would not attach any evidential value to Exhibits A1 and A2, being unsigned documents, bearing in mind the peculiar circumstances of this case?

3. Whether the charge against the Respondents at the lower Court was whether the bags, containing the sum of $1,630,000 USD, samples of goods and other valuables, left Nigeria, and if Exhibit A contradicts Exhibits A3, A5, E, E1 and F1?

4. Whether the charge and ownership of the money was not proved by failure of the Appellant to call other contributors and business partners of PW3 and the makers of Exhibits A3 and A4?

5. Whether the lower Court was right when it held that the PW3 did not disclose that he had the sum of $1,630,000 at the earliest opportunity in Exhibit F1?

6. Whether the Appellant has proved beyond reasonable doubt the offences of stealing, obtaining money under false pretences and by fraudulent means against the Respondents?

7. Whether the offence of conspiracy has been proved against the Respondents as per the charge before the lower Court?

8. Whether the Appellant has proved the offence of willful destruction of evidence against the 1st, 4th, 5th and 7th Respondents?

9. Whether the Appellant has proved the commission of the alleged crimes against the 3rd and 6th Respondents?

DECISION/HELD

The appeal was unanimously dismissed and the decision of the trial Court was affirmed.

RATIOS:

• CRIMINAL LAW AND PROCEDURE – OFFENCE OF STEALING: Definition of the offence of stealing; ingredients of the offence of stealing
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF OBTAINING BY FALSE PRETENCES: Meaning of false pretences; ingredients that are required to be proved to establish the offence of obtaining by false pretences
• CRIMINAL LAW AND PROCEDURE – OFFENCE OF FRAUD: Meaning of fraud
• EVIDENCE – CROSS-EXAMINATION: Requirement of the law where a witness is to be cross-examined as to previous statements in writing