Ocean Energy Trading & Serv. Ltd. V. F.R.N.: On whether failure to file respondent’s brief automatically lead to success of appeal. An insight into the decision of the Court of Appeal therein. Citation: (2021) 2 NWLR PT. 1760 AT 231. Courtesy: Moruff O. Balogun Esq.

Statement of Fact:
The appellant was arraigned along with one Efe Egube at the High Court of Lagos State, Ikeja for the offence of obtaining various sums of money by false pretences from two persons. He was tried and convicted for the offence of obtaining various sums of money by false pretences from two complainants: Sanusi Kamba and Aminu Ghandi Petroleum Ltd for the supply of petroleum products to them.

By a letter reference No. AAM/EE/AGPL/01/13, one Aminu Gandi Petroleum Ltd., acting through its lawyer, made a complaint of obtaining money by false pretences to the Economic and Financial Crimes Commission against the appellant’s co-accused. He disputed the allegation but admitted taking moneys from the complainant as gifts and friendly loans. After reviewing the petition, the Commission found and declared it to be one of debt recovery.

In subsequent developments, the complainant and the co-accused negotiated between themselves and entered into a settlement agreement wherein he was to refund a total sum of N20,000,000.00 (Twenty Million Naira) to the complainant for the failure to fully supply petroleum products, for which he collected money from them. The terms of the agreement were contained in exhibits 8, 9, 10, 11 and 12 admitted at the trial. He fully performed the agreement, after which the complainant withdrew the complaint from the Commission.

However, in the course of the happenings, the Commission filed an information alleging eighteen incidents of obtaining money by the appellant and the co-accused person from the complainant and its alter ego under the false representation that the respective sums were part-payment for the supply of petroleum products.

At the trial, PW1, the prosecution’s star witness, testified that after some money was paid to the co-accused person and there was no immediate supply of petroleum products by him to the nominal complainants and they requested for repayment of their money, the co-accused person would contact third party companies who would then supply the products to the complainants. PWI further testified that sometimes the appellant and the co-accused supplied him products after which he pays them about a week later.
At the end of the trial, the trial court in its judgment found the appellant and the co-accused person guilty of twelve of the eighteen counts of obtaining various sums of money by false pretences. The co-accused person, being a natural person, was sentenced to a term of seven years imprisonment.

The trial court made an order of restitution by the appellant and the co-accused person for the repayment of the total amount obtained by false pretences as particularised in the twelve counts in respect of which they were convicted.

The appellant was dissatisfied with the judgment of the trial court and it appealed to the Court of Appeal.

Held: Unanimously allowing the appeal.

The following issues were raised and determined by the Court of Appeal.

On whether failure to file respondent’s brief automatically leads to success of appeal:
An appeal does not succeed automatically without more where the respondent fails to file a respondent’s brief of argument in defence of the appeal. The appeal must be considered and determined on the strength of the appellant’s case to see whether it will succeed or not.

On ingredients of offence of obtaining by false pretence:
For the offence of obtaining by false pretence to be committed, it must be proved that there was an inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver to him a thing capable of being stolen. It is an inducement on the part of the accused person to make his victim part with a thing capable of being stolen or make his victim deliver to him a thing capable of being stolen will expose the accused person to imprisonment for the offence. The ingredients or elements that are required to be proved to establish the charge of obtaining by false pretence are:
(a) that there was pretence;
(b)that the pretence emanated from the accused person
(c)that the pretence was false;
(d)that the accused person knew of the falsity of the pretence or did not believe in its truth;
(e)that there was an intention to defraud
(f)that the property or thing is capable of being stolen;
(g)that the accused person induced the owner to transfer his whole interest in the property.
In the instant case, the prosecution failed to prove any of the essential ingredients of the offence of obtaining money by false pretence, upon which the appellant was convicted of the twelve counts out of the eighteen counts contained in the information laid against him.

On Meaning of false pretence:
By virtue of section 20 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, false pretence means a representation, whether deliberate or reckless, made by word, in law, either past or present, which representation is false in fact or law and the person making it knows to be false or does not believe to be true.

On Power of High Court to order convict of offence under Advance Fee Fraud and Other Fraud Related Offences Act to make restitution to victim of offence:
By section 11(1) of the Advance Fee Fraud and Other Fraud Related Offences Act, the High Court is empowered, upon conviction for an offence under the Act, to order the convict to make restitution to the victim of the offence. In the instant case, there was no basis for the order of restitution made by the trial court which was tantamount to double compensation and an unjust enrichment for the complainants.

On Attitude of appellate court to findings of fact by the trial court and when it will interfere therewith:
The appellate court does not interfere with findings of fact made by a trial court, which had the advantage and the primary duty to make findings of fact from the pieces of evidence placed before it.
However, where the appellate court, upon a perusal of both parole and documentary evidence placed before the trial court, finds that the latter had, in its evaluation of the pieces of evidence presented before it, taken into consideration some matters which it ought not to have done or drawn wrong inferences and conclusions from the evidence proffered before it, the former has a duty to interfere with such findings in order to ensure that justice is done to the parties.

Courtesy:
Moruff O. Balogun Esq.
Ijebu Ode, Ogun State.
08052871414.