⦿ CASE SUMMARY OF:
CONFIDO CONSULT SERVICES LIMITED v. FEDERAL REPUBLIC OF NIGERIA (2018) – CA
⦿ LITE HOLDING
The law is trite that a defect in the charge or count as alleged in the instant case does not vitiate a trial except where such a defect or defects occasioned a miscarriage of justice.
⦿AREA OF LAW
– Advance Fee Fraud.
– Criminal charge.
– Valid arraignment.
Confido Consult Services Limited
Federal Republic of Nigeria
(2018) JELR 39596 (CA)
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
YARGATA BYENCHIT NIMPAR, J.C.A.
* FOR THE APPELLANT
* FOR THE RESPONDENT
⦿ FACT (as relating to the issues)
Brief facts of the case are that the alter ego of the Appellant one Odibo Efe Kronaghea, the 1st Defendant at the Lower Court approached the complainant, one Judgewell Johnson Effiong for purposes of capital market investments.
On the premise that they were fund managers and stockbrokers, the complainant gave the 1st Defendant ₦2,000,000.00 (Two Million Naira) for the purchase of shares to be managed by him. When a request was made for repayment of the first tranche of interest rates on the capital sum invested, the 1st Defendant defaulted which led the complainant to report the matter to the Police and subsequently to the EFCC leading to the charges being brought against the 1st Defendant and the Appellant.
The Appellant pleaded not guilty and the prosecution called two (2) witnesses who testified and tendered several documents. The Appellant who was represented by the 1st Defendant during trial, called two witnesses who testified in its defence.
At the end of the trial, the Appellant was convicted on counts (1) only but discharged and acquitted on counts (2) and (3). Aggrieved by the judgment, the Appellant has now appealed to this Court.
1. Whether count 1 was so fundamentally defective as not to justify the decision of the Lower Court which convicted and sentenced Appellant for the offence of Advance fee fraud charged in that count?
2. Whether or not the prosecution proved this offence beyond reasonable doubt?
3. Whether the arraignment of the Appellant herein satisfied the mandatory requirements of Section 211 of the Administration of Criminal Justice (Repeal and Re-enactment) Law, 2011?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. From the content of count 1 reproduced above, can it be said that it breached the provisions of S. 151 of the Criminal Procedure Act as to render it invalid? Definitely not. The charge clearly spells out the elements of the offence alleged to have been committed and they are clear, specific and in understandable language. I see no ambiguity therein. The main essence of a charge is to give the accused person notice of the case against him, see ODEH v. FRN (2008) VOL 5 M.J.S.C 1 AT 15. Besides, the issue of the charge being laid pursuant to the penalty section, and not the section creating the offence thereby making the count incompetent and invalid is misconceived and untenable. The law is that, once an offence described in a charge is one created by a statute named in the charge and that statute is in force in the territory wherein the offence was alleged to have been committed, it will be immaterial to aver that an error has been committed by not stating the correct written law or the particular section of the law, unless it can be shown that such error has in fact prejudiced or misled the accused, see Section 166 of the Criminal Procedure Act.
ii. The effect of this provision is that any defect or error in a charge as to stating the exact title or Section of the statute allegedly contravened, is immaterial and the trial and conviction cannot be vitiated. For the accused to benefit from any defect in a charge, he or she has the bounden duty to prove that such defect, error or omission on the face of the charge has misled the Appellant during trial and has occasioned a miscarriage of justice, see DANIEL PETER v. THE STATE (2013) LPELR 20302 (CA). The Appellant failed to show how it was misled by the alleged defect in the charge.
iii. What is more, the Appellant who was well represented by counsel throughout the trial cannot now upon conviction claim to have been misled by the charge. On arraignment, the charge was read over to the Appellant as seen in pages 122 of the record of appeal, he understood the charge before pleading “Not guilty”. If indeed the count failed to disclose any reasonable offence as contended by the Appellant, it ought to have raised such objection at the time the Appellant took his plea. There is no evidence in the Records that the Appellant or his counsel raised any objection either before or after the charge was read to the Appellant.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. From the evidence before the Court, the question that arises is whether or not the prosecution proved this offence beyond reasonable doubt. The evidence presented shows that the 1st Defendant, the alter ego of the Appellant approached the complainant, Johnson Judgewell for the purpose of investing in the capital market. The 1st Defendant presented himself as a market operator and also presented the Appellant as a company registered for the purpose of capital market operations. He asserted to the complainant as having the requisite power to invest and handle the management of the complainant’s shares on his behalf. It was on this basis that the complainant parted with ₦2,000,000.00 (Two Million Naira) and agreed that he would invest through the Appellant. These facts were admitted by the Appellant during trial. However, upon due investigation by the EFCC, it was discovered from a report obtained from the Nigerian Stock Exchange (NSE) and Securities and Exchange Commission (SEC) that neither the 1st Defendant nor the Appellant were licensed or registered with either NSE or SEC to act as operators in the stock market. Clearly, it was premised on this false assertion by the Appellant, that the complainant was deceived into parting with his money.
ii. It is quite surprising that the Appellant without the requisite license to operate as stock brokers or fund managers can still insist on being empowered to act as such. A mere incorporation without the requisite license to act in such capacity is like having a body with no life in it. It is the license from the requisite authorizing agencies such as CBN and SEC that empowers an incorporated company to act in the capacity of a stockbroker or fund manager. It is a huge slap on the face of this Court that the Appellant can so flagrantly insist that it can operate as fund managers and stock brokers in the capital market and secure money from unsuspecting persons for the purpose of managing their funds without having the requisite license to do so.
iii. As to the contention on whether or not intent to defraud was made out, intent is a state of mind which can seldom be proved by direct evidence, but will ordinarily be inferred from surrounding circumstances. Such proof can only be made possible by certain acts, circumstances and inferences deducible from the facts of the case. Clearly, by representing itself as a capital market operator without due license, despite knowing that it had no license to operate, the Appellant deceitfully made false representations to the complainant in a bid to obtain money from him and the Lower Court was in order to have found as such. The Appellant’s line of argument is untenable and I agree with the trial Court that the offence has been proved by the Respondent beyond reasonable doubt. The two issues lack merit and are resolved against the Appellant.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The above stated provisions are clear. Once it is shown that the charge was read to the accused and the Court believes what was read is understood by the accused; the accused pleads to the charge, then there is a valid arraignment. The Appellant relied on KAJUBO v. STATE supra and contended that the record does not indicate that the charge was explained to the Appellant after it was read to him and the trial judge did not satisfy himself that the Appellant understood what it was standing trial for. I do not agree with this assertion and it is obvious that the Appellant is merely pulling at loose straws.
⦿ ENDING NOTE BY LEAD JUSTICE – Per
S. 151 Criminal Procedure Act.
Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act.
Section 211 of the Administration of Criminal Justice law (ACJL), 2011.
⦿ SOME PROVISION(S)
Section 38 of the Investment and Securities Act. Sub-section 1 of the said section provides thus: “38 (1) No person shall a. operate in the Nigerian capital market as an expert or professional or in any other capacity as may be determined by the Commission; or b. carry on investments and securities business unless the person is registered in accordance with this Act and the rules and regulations made thereunder.”
⦿ RELEVANT CASE(S)
OGBOMOR v. THE STATE (1985) NWLR (PT.2) 223, the apex Court held: “A combined reading of the provisions of Section 33(8) and Section 33(12) of the Constitution 1979 suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus, it is clear that a mere mis-description of the law under which a charge has been brought, does not necessarily render the offence one not known to the law at the time of its commission. Hence, as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any mis-description of the law under which the charge was laid.”
LUFADEJU v. JOHNSON (2007) 8 NWLR (PT.1037) 535, the apex Court held: “Arraignment therefore involves two things. One, the reading of the charge or information to the accused. Two, the response to the charge or information by a plea from the accused. The plea can either be guilty or not guilty. It is only when the above procedure is followed that a Court of law will be said to have taken arraignment proceedings.”
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
A charge sheet or information is the originating process by which a criminal proceeding is instituted in Court, as such when drafting, counsel must be careful to ensure it complies with the laws guiding it. Any objection to a substantial defect in a charge if raised timeously and sustained, may lead the Court to discharge the accused or in other instances, the Court may suo motu or on application, order that the charge be amended to properly spell out the ingredients of the offence brought against an accused, see ANI v. STATE (2017) LPELR-42831 – Nimpar JCA. Confido v. FRN (2018)
From the above, it is clear that it is not out of place for a charge to be brought pursuant to a penalty section where the law creates both the definition section and penalty section and where this is done the charge is valid and cannot be invalidated. – Nimpar JCA. Confido v. FRN (2018)
For the accused to benefit from any defect in a charge, he or she has the bounden duty to prove that such defect, error or omission on the face of the charge has misled the Appellant during trial and has occasioned a miscarriage of justice, see DANIEL PETER v. THE STATE (2013) LPELR 20302 (CA). – Nimpar JCA. Confido v. FRN (2018)
The prosecution must prove the following elements of the offence – a. A pretence was made by the accused person. b. The pretence was false. c. The accused knew the pretence to be false and did not believe it to be true. d. The pretence operated on the mind of the person from whom the property was obtained. e. Some property must have been obtained as a result of the pretence. – Nimpar JCA. Confido v. FRN (2018)
An agency relationship is created when a person (principal) gives authority to another (agent) to act on his behalf and the agent accepts to act on the authority. – Nimpar JCA. Confido v. FRN (2018)
It is trite that a valid arraignment is a very important initial step in the trial of a person in a criminal charge and that an improper arraignment is not a matter of mere technicality. Without a valid arraignment, no trial in law would have commenced, and no matter the evidence adduced, the trial and subsequent judgment would be rendered null and void. – Nimpar JCA. Confido v. FRN (2018)