OMOREDE DARLINTON V. FEDERAL REPUBLIC OF NIGERIA (2018)

Background

Omorede Darlinton was the second accused person before the Federal High Court, Benin Judicial Division, where he was tried with two other accused persons for offences under the Advance Fee Fraud and Other Related Offences Act, 2006. The prosecution alleged that the accused persons conspired to defraud Cynthia Taylor, an American national, by falsely representing that money sent through Western Union Money Transfer would be used to process a bank loan. Darlinton was convicted on count 1, alleging conspiracy to obtain money by false pretence, and counts 4 and 5, relating to the obtaining of USD 1,000 and USD 2,320 respectively. The trial court’s decision was affirmed by the Court of Appeal, Benin Division, prompting a further appeal to the Supreme Court.

The prosecution relied substantially on the appellant’s extra-judicial statements, exhibits J1–J4, together with the testimony of the investigating witness. The evidence was that the first accused initially operated the fraudulent scheme through electronic correspondence with Taylor and later handed it over to Darlinton. Darlinton allegedly continued sending emails to Taylor, represented himself as a bank manager capable of arranging a loan, and used the name and account of the third accused to receive the money. The proceeds were subsequently shared among the participants.

Issues

1. Whether the prosecution’s failure to call Cynthia Taylor, the complainant, personally rendered the prosecution’s case defective.
2. Whether the trial court improperly revoked the appellant’s bail and thereby coerced him into withdrawing his objection to the admissibility of his statements.
3. Whether the appellant’s confessional statements were admissible and capable of supporting a conviction despite the alleged retraction.
4. Whether the prosecution proved beyond reasonable doubt the offences of conspiracy and obtaining money by false pretence.
5. Whether the Supreme Court could entertain the appellant’s complaint that the sentence imposed by the trial court was excessive.

Ratio Decidendi

The Supreme Court held that there is no absolute rule requiring a complainant in a criminal trial to testify personally. Although the complainant will ordinarily be a material witness, the prosecution is not obliged to call every witness if the evidence actually presented proves the charge beyond reasonable doubt. The appellant’s reliance on the absence of the complainant was therefore unsuccessful.

The Court further held that a voluntary, positive and unequivocal extra-judicial confession amounting to an admission of guilt may support a conviction even where the accused later retracts it. Admissions are regarded as the best evidence against the maker. In this case, the appellant’s statements were corroborated by the testimony of the prosecution witness and were not shown, on the evidence, to have been extracted by oppression, trickery or improper inducement.

On conspiracy, the Court reaffirmed that the offence is complete once two or more persons reach an agreement to commit an unlawful act, or to accomplish a lawful act by unlawful means. The conspirators need not have previously met or known one another; communication and coordinated conduct may establish the meeting of minds. Where persons act in concert in furtherance of a common criminal purpose, their different roles do not diminish their culpability.

For obtaining by false pretence under section 1(1)(a) of the 2006 Act, the prosecution must prove a representation emanating from the accused, its falsity, the accused’s knowledge of or disbelief in its truth, an intention to defraud, inducement of the victim to transfer property, and that the property is capable of being stolen. The Court found all these ingredients established by the appellant’s representations, the transfer of the money, and the evidence showing that the supposed loan arrangement was fraudulent.

Court Findings

The Supreme Court criticised the trial court’s decision to revoke the appellant’s bail merely because the trial-within-trial was scheduled for a later date. Bail, once granted, should not ordinarily be revoked unless changed circumstances are established by evidence. The discretion must be exercised judicially and judiciously, on empirical facts rather than speculation or extraneous considerations. However, the Court held that the appellant had not proved that the revocation actually coerced him into withdrawing his objection to the statements. The alleged coercion was therefore unsubstantiated and could not invalidate the conviction.

The Court also held that the appellant bore the burden of proving the factual assertions made in his grounds and issues of appeal under section 131(1) of the Evidence Act, 2011. His complaint concerning alleged findings about the complainant’s trauma was not supported by the judgment of the Court of Appeal. In addition, the challenge to the excessiveness of sentence was a fresh issue not raised before the Court of Appeal and required leave. Under section 233(1) of the Constitution, the Supreme Court hears appeals from the Court of Appeal and does not exercise direct appellate jurisdiction over the High Court. The relevant ground and issue were consequently struck out.

Conclusion

The Supreme Court unanimously dismissed the appeal and affirmed the appellant’s conviction and sentence on counts 1, 4 and 5. The concurrent findings of the Federal High Court and Court of Appeal were held to be supported by the evidence and disclosed no basis for appellate interference.

Significance

The decision confirms important principles in Nigerian criminal law: the complainant’s personal testimony is not indispensable; a voluntary retracted confession may sustain a conviction; conspiracy may be inferred from coordinated conduct even without proof of a prior personal relationship; and every statutory ingredient of obtaining by false pretence must nevertheless be proved beyond reasonable doubt. It also illustrates the limits of Supreme Court appellate jurisdiction and the requirement that complaints on appeal be founded on the record and properly raised before the intermediate appellate court.