AUGUSTINE EKWERIKE V. FEDERAL REPUBLIC OF NIGERIA (2014)

Background

Augustine Ekwerike was prosecuted before the High Court of Rivers State for conspiracy to obtain money by false pretence and for two counts of obtaining money by false pretence. The prosecution’s case arose from a vehicle transaction involving the proposed purchase of a fairly used Mercedes Benz GL450. The complainant, Ukonga Dare (PW1), was introduced to the appellant as a car dealer. The appellant represented that he could procure and deliver a 2007/2008 Mercedes Benz GL450 with a mileage of less than 20,000 kilometres for N6,700,000.00.

Relying on those representations, PW1 paid the appellant N3,000,000.00 on 30 June 2010 and a further N1,000,000.00 on 25 August 2010. The payments were evidenced by exhibits P1 and P2. The appellant stated that the car would be delivered within a specified period and later represented that it was being shipped to Tin Can Island Port, Lagos. He also involved a person described as Prince Osinachi Nwachukwu, whom he presented as a cousin and business partner. When the vehicle was not delivered, the appellant showed PW1 and the police a photograph of a Mercedes Benz and promised to obtain the vehicle from Lagos. During an attempted journey to Lagos, however, Nwachukwu admitted to police officers that there was no car in Lagos. An attempted settlement followed, during which the appellant issued an N8,000,000.00 cheque that was dishonoured.

Rather than refund the money, the appellant and Nwachukwu allegedly caused PW1 to be arrested on false information and later commenced proceedings seeking enforcement of their fundamental rights. That application was dismissed. The appellant was subsequently arrested, arraigned and convicted. He received seven years’ imprisonment for each offence, with the sentences to run concurrently, and was ordered to make restitution of N7,000,000.00. He appealed to the Court of Appeal.

Issues

1. Whether the prosecution proved beyond reasonable doubt that the appellant conspired to obtain money by false pretence.
2. Whether the prosecution proved beyond reasonable doubt that the appellant obtained the total sum of N4,000,000.00 from PW1 by false pretences.

Ratio Decidendi

The Court of Appeal dismissed the appeal and affirmed the convictions. The court held that facts which are admitted or left unchallenged do not require further proof. Although the prosecution bears the burden of proving a criminal charge beyond reasonable doubt, evidence given by a prosecution witness which is neither denied nor challenged in cross-examination may properly be treated as admitted. A defence that intends to dispute a material part of the prosecution’s evidence must put the challenge to the witness during cross-examination. The appellant had admitted receiving the two payments and had not effectively challenged the damaging evidence of PW1. The trial court was therefore entitled to rely on that evidence.

On conspiracy, the court explained that direct evidence of an express agreement is rarely available. Conspiracy may be inferred from circumstantial evidence and from the coordinated acts of the accused persons. The essential element is the meeting of minds or agreement to pursue a criminal purpose. It is unnecessary to prove that alleged conspirators were seen together at the same place or that they began the plan at the same time. On the evidence, the appellant’s description of Nwachukwu as his partner, their joint assurances to PW1, the false representation concerning the vehicle, the attempted settlement, and the subsequent conduct towards PW1 established the necessary common purpose.

For obtaining by false pretence under section 1(1)(a) of the Advanced Fee Fraud and Other Related Offences Act 2006, the prosecution had to establish seven matters: a pretence; that it emanated from the accused; that it was false; that the accused knew it was false or did not reasonably believe it to be true; an intention to defraud; that the property was capable of being stolen; and that the pretence induced the owner to transfer his interest in the property. The court found each ingredient proved through PW1’s testimony, exhibits P1 and P2, the appellant’s representations, the non-existent vehicle, the dishonoured cheque and the failure to refund the money.

Court Findings

The court rejected the appellant’s claim that he merely introduced PW1 to Nwachukwu and transferred the money to him. The appellant did not prove that assertion, and the principle that “he who asserts must prove” applied. The court also found no material contradiction in the prosecution’s case. Proof beyond reasonable doubt was held not to mean proof beyond every conceivable or imaginary shadow of doubt; it means proof of such compelling quality that a reasonable tribunal is satisfied of the accused’s guilt.

Conclusion

The Court of Appeal unanimously dismissed the appeal and affirmed the appellant’s convictions, concurrent seven-year prison sentences without an option of fine, and the restitution order made by the trial court in charge FHC/PH/64C/2011.

Significance

The decision is significant for Nigerian criminal procedure and fraud litigation. It confirms the practical importance of cross-examination in challenging prosecution evidence and demonstrates that uncontroverted evidence may support a conviction even in a criminal trial. It also illustrates how conspiracy may be established by inference from coordinated conduct rather than direct proof of an express agreement. Finally, the case provides a useful statement of the statutory ingredients of obtaining by false pretence under the 2006 Advance Fee Fraud legislation and clarifies that the criminal standard is proof beyond reasonable doubt, not proof beyond every shadow of doubt.