WHETHER THE OFFENCE OF OBTAINING BY FALSE PRETENCE CAN BE COMMITTED AGAINST AN UNKNOWN VICTIM

CASE TITLE:                         AKINYEMI IDOWU JEGEDE v. FEDERAL REPUBLIC OF NIGERIA (2021) LPELR – 55072 (CA)

JUDGMENT DATE:           14TH MAY, 2021

JUSTICES:                            CHIDI NWAOMA UWA, JCA

                                           TUNDE OYEBANJI AWOTOYE, JCA

                                           JAMES GAMBO ABUNDAGA, JCA

COURT DIVISION:            LAGOS

PRACTICE AREA:             Criminal Law and Procedure- Offence of Obtaining by False Pretenses

FACTS

The Appellant was accused of obtaining monies from the customers of a certain Mr. Ifeanacho, who was the Branch Manager of Fidelity Bank 101, Enu-Owa Street Idumota Lagos, by representing to him that he had some dollars to sell and that he had sold the bulk of the dollars to Union Bank and First Bank.

Mr. Ifeanacho got his customers to purchase said dollars but the customers did not receive the money. However, when the incident occurred, the Appellant had not known the supposed victims of the crime. There was also no evidence on record disclosing any prior discussion of the existence of the victims with the Appellant. They only got to know about one another after the incident.

Subsequently, the Appellant was arraigned before the High Court of Lagos State on a four-count charge of obtaining money by false pretenses’ contrary to Section 1(3) of the Advance Fee Fraud and other Fraud Related Offence Act No. 14 of 2006. The charge was read and explained to the Appellant who pleaded not guilty to each of the counts.

The trial High Court heard the case and delivered judgment against the Appellant, convicting and sentencing him of the offence charged.

Dissatisfied, the Appellant appealed to the Court of Appeal.

ISSUES

The Court determined the appeal on a sole issue thus:

“Whether the Respondent proved the offence of obtaining money by false pretense against the Appellant beyond a reasonable doubt.”

COUNSEL SUBMISSION

Learned Counsel to the Appellant submitted that the prosecution failed to prove at the trial Court that it was the actual representation made by the Appellants to Mr. Egbona Ifenacho that was the operative influence on the minds of the alleged victims at all material times relevant to the obtaining of the monies by false pretense from them.

He argued that the decision of the alleged victims to enter into the US Dollar purchase deal had nothing to do with the representation the Appellant was said to have made. He urged the Court to hold that the operative influence that induced the alleged victims to enter into the Dollar transaction was not proved.

Learned Counsel to the Respondent submitted that a pretense is made by an accused person when the pretense is false to the knowledge of the accused or when the accused does not believe that it is true. He contended further that the pretense must have operated on the mind of the victims as the Appellant procured someone to make the representations to the victims.

DECISION/HELD

In conclusion, the Court allowed the appeal. The judgment of the High Court of Lagos State convicting the accused person was set aside and, in its place, a discharge and acquittal was ordered.

RATIOS

1. CRIMINAL LAW AND PROCEDURE- OFFENCE OF OBTAINING BY FALSE PRETENCES: Whether the offence of obtaining by false pretenses can be committed against an unknown victim –

“Under Section 1 of the Advance Fee Fraud and other Related Offence Act, the pretense must have been made to the person defrauded. A false pretense could not have been intended to be acted upon by an unknown person not known to the person making the pretext. False pretense involves taking undue advantage of the weakness, ignorance, gullibility or innocence of the victim through a false representation to obtain a property or defraud the victim. I think the victim must have been known by the accused either directly or indirectly for an obtaining by false pretense to take place. See ODIAWA VS FRN ALL FWLR (PT 439) 436; DARLINGTON VS FRN (SUPRA).” Per AWOTOYE, J.C.A.

• CRIMINAL LAW AND PROCEDURE- OFFENCE OF OBTAINING BY FALSE PRETENCES: Elements to be established by the prosecution to sustain a charge of obtaining money by false pretenses –

“What constitutes an offence under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006? Section 1 of the said Act reads thus: 1. (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretense, and with intent to defraud (a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or (b) induces any other person, in Nigeria or in any other country, to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretense, commits an offence under this Act. (2) A person who by false pretense, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act. (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine. The above provision has been subjected to judicial interpretation in a plethora of cases by the apex Court. In DARLINGTON VS FRN (2018) 11 NWLR (PART 1629) 152, EJEMBI- EKO JSC explained the elements to be established by the prosecution to sustain a charge of obtaining money by false pretenses as follows: The offence of obtaining by false pretense created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts I. A pretense is made by way of representation. II. From the accused person. III. To the person defrauded. IV. The representation is a pretense. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in to the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable. These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, are affirmed by this Court as the elements constituting the offence. See ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct. The offence charged cannot be said to have been proved beyond reasonable doubt when all the essential elements or ingredients of the offence have not been proved beyond reasonable doubt.” Per AWOTOYE, J.C.A.