Kehinde Bello v Federal Republic of Nigeria [2022]

Case Name: Kehinde Bello v Federal Republic of Nigeria [2022] 

Citation : Kehinde Bello v Federal Republic of Nigeria [2022] CA  

Court Name: The Court of Appeal, Abuja Division  

Bench: Their Lordships 

Haruna Simon Tsammani (Presiding) 

Danlami Zama Senchi 

Nature Isah Gafai 

Date of Judgment: Tuesday 9th of August, 2022 

Between: Kehinde Bello – Appellant And Federal Republic of Nigeria. – Respondent  

1.0 Facts 

In 2008, the appellant and others conspired to defraud Nana Aisha of 28 million naira by falsely  presenting himself as a staff of AGIS in the FCTA, even using a fake ID. Under the guise of re certifying her land, the appellant forged land documents in other names and fraudulently used  them as genuine. He was convicted by the trial court on 10 counts—conspiracy, obtaining by  false pretence, forgery, and using forged documents—and sentenced to 7 years on each count to  run concurrently. Dissatisfied, he appealed the judgment on four grounds. 

2.0 Issues 

The issues for determination in the case were: 

1. Whether the trial court was right to hold that the prosecution proved the charge of obtaining  money by false pretence beyond reasonable doubt (Count 1).  
2. Whether the court was correct in finding that the appellant conspired with others to commit the  offence (Count 2). 
3. Whether the court rightly found the appellant guilty of forgery beyond reasonable doubt  (Counts 3, 5, 7, and 9).  
4. Whether the appellant was rightly convicted for using forged documents as genuine (Counts 4,  6, 8, and 10). 

3.0 Response to the issues 

3.1 Issue 1 

3.1.1 Argument of parties 

The appellant’s counsel argued that the appellant did not make any false representation. 

Their key points were: 

• The initial petition by Haruna (PW1) did not mention the appellant, and PW1 never  met or paid him.  
• PW2 claimed Gabriel introduced the appellant as AGIS staff, implicating the  appellant indirectly.  
• Gabriel, not the appellant, should be liable for the false pretence.  
• No AGIS ID card was presented as evidence to prove the appellant’s identity. 
• The prosecution failed to prove how the appellant personally induced PW2 to part  with her money. 

The appellant’s counsel accused the prosecution of withholding evidence by not presenting the  AGIS ID card, citing Section 167(d) of the Evidence Act 2011.  

In response, the respondent’s counsel argued: 

– The appellant’s failure to deny being introduced as AGIS staff amounted to false pretence  under Section 20 of the Advance Fee Fraud Act 2006.  

– The appellant had shown PW2 an ID card and admitted in his extra-judicial statement that he  worked with AGIS for 10 years before joining Perfect Engineering Solution Ltd, and this  statement was admitted as evidence.  

However, the appellant’s counsel challenged the admissibility of the statement, claiming it was  made under duress and not voluntarily.. The trail court admitted this statement regardless without  conducting a trail within trail to determine the voluntariness or involuntariness of this statement.

• Due to the belief pw2 had in the appellant employment status, she had been induced to  enter into the transaction and had with her 28 million. 
• The letters gotten from AGIS established that the appellant wasn’t a staff of AGIS. The  letter further stated that if the appellant was only an employee of AGIS at the time he  said that he was, he had definitely ceased to be one the time the transaction took place  
• The card wasn’t tendered because it was with the appellant and therefore couldn’t be  retrieved. Therefore, s.167 of the Evidence Act couldn’t apply here. 
• The appellant and Gabriel had therefore proved their intention to defraud pw2 by  making the false representation. 

3.1.2 Legal Reasoning for Decision 

Section 20 of the Advance Fee and Other Related Offences Act, 2006 defines false pretence as a  deliberate or reckless false representation. The appellant falsely represented himself as an AGIS  employee and offered to help PW2 process land documents, which led her to part with ₦28  million. Under Section 1(1)(a) of the Act, false pretence and fraudulent representation are treated  the same. Since the appellant knowingly made this false claim and presented a fake ID to deceive  PW2, and the elements of the offence were proven beyond reasonable doubt, he was found guilty  of obtaining money by false pretence, an offence punishable under Section 1(3) of the Act. 

3.1.3 Ratio Decidendi 

 The Ratio’s for this issue includes: 

2006. The elements of ‘obtaining by false pretence’ by virtue of s.1(1)(a) of the Advance Fee  and other Related Offences Act,2006. are; 

• The defender made a false pretence. 
• The accused knew of his falsity or didn’t reasonable believe in its truth. • There was an intention to defraud. 
• The item is capable of being stolen. 
• The accused induced the owner to part with the property. 

S.36(5) 1999 CFRN provides that accused is presumed innocent until proven guilty by the  prosecution beyond reasonable doubt. 

Proof beyond reasonable doubts means proof of all the elements of the offence.

Proof of guilt by prosecution is done by: 

• The direct testimony of eyewitness(es) or; 
• The direct, voluntary and unambiguous confession of the accused  

To prove false pretense one must prove some elements of deceit alongside the elements  of false pretense and these include:  

• The representation was intentionally intended to deceive the victim into believing  the existence or non-existence of a thing  
• The representation was made with the intention that the recipients of the  representation will act on it.  

3.2 Issue 2 

3.2.1 Argument of the parties 

The appellants counsel argued that there was no evidence tendered by the prosecution which  showed any agreement between the happy lands and others to commit any unlawful act.  

This argument was on the ground that the trial courts had relied on an involuntary extra-judicial  statement given under duress to convict the appellant for conspiring without conducting a trial  within trial to ascertain the voluntariness or otherwise of the statement. 

The respondent’s counsel counter argued does according to s. 8(a) of the Advance Fee and other  Related Offences Act,2006. In order to establish conspiracy prosecution must prove that the  accused agreed with others to commit an unlawful act or to commit a lawful act through lawful  means. 

He further argued that the appellant was rightly convicted for conspiring with others to obtain  money through false pretense from PW2. 

3.2.2 Legal Reasoning for Decision  

In the case of FRN V Amah, conspiracy was defined as an agreement between two or more  persons to commit an illegal act or illegal act by illegal means while snowing the existence of  such a scheme. Conspiracy basically refers to an agreement backed by a criminal intent to  commit a crime. 

Due to the secrecy and in extension the difficulty in proving conspiracy the court always relies  on circumstantial evidence of proved facts from the commission of an offense to prove  conspiracy.  

Therefore the proof of conspiracy is usually based on inference from certain proved facts or  really by direct evidence. In essence by virtue of the evidence of the appellant engaging with  Gabriel as shown by the introduction and sharing of monies collected from PW2 (Aisha). 

3.2.3 Ratio Decidendi  

The ratios for this rule include  

1. a) By virtue of s.27(2) of the Evidence Act, the extra-judicial statement must satisfy the six  tests for determining the statements veracity.  
2. b) To prove conspiracy the act or omission of any of the conspirators in furtherance of the  conspiracy would be used as evidence against the others.  

3.3 Issue 3 

3.3.1 Argument of the Parties  

The appellants counsel argued that the prosecution had failed to produce credible evidence on  how the documents were forged by the appellant. The ground for this argument include: 

• The exhibits ( allocation letter) contained the letterheads of AGIS, names and signatures  of its preparers. However the prosecution never investigated these parties. Herein, its  immaterial that the allocation wasn’t found in the system of AGIS. 
• No original document was tendered to displace the alleged forged documents & they  would therefore be presumed to have been properly & rightly issued by AGIS.
• Prosecution failed to call any witness from the Lands Department which issued the letter  of allocation. 
• The elements of forgery weren’t proven beyond reasonable doubt. 
• All these made PW3’s testimony (Legal Advisor to AGIS) a mere speculation. The respondent’s counsel countered this on the grounds that:
• PW3 had testified about how he came to the conclusion that the documents were forged.  He stated that upon request by EFCC to investigate the genuineness of some land files  inclusive of which are the exhibits, he discovered that exhibits A7–A10 (Re-Certification  of Occupancy) allegedly issued by AGIS in the names of Haruna & Abubakar were  forged. 
• Although it’s law that in a charge of forgery the original document must be tendered in  evidence, this couldn’t be done as the issue was raised for the first time in the appeal.
• The employee mustn’t forge the documents personally. 
• The counsel reaffirmed his stance that the appellant intended to commit fraud and knew  that the documents were forged since he had falsely represented himself as an employee  of AGIS. 

3.3.2 Legal Reasoning for Ruling  

The appellant had been charged for forgery. A crime prohibited under s.363 and punished with 14  years imprisonment with or without fine under s.364 of the penal code. 

Generally, it’s not the accused burden to prove his innocence as this is the prosecutions burden.  Therefore, since the exhibits were alleged to be forged, it was the prosecutions burden to prove  the documents forgery. This is a burden they had failed to carry put as the witnesses couldn’t  demonstrate to the courts how the documents were forged. 

The prosecution had produced the alleged force the commitment in court however this wasn’t  sufficient as they had to establish how it was forced. 

When a prosecution procured evidence that the exhibits where forced it should be pw3’s  Testimony it became the appellant burden to present evidence to prove its alleged genuineness. 

However, to secure a conviction the prosecution must proved that it was the accused who forged  the document personally. Since they failed to do this, the finding of the appellant for forgery will  be set aside and the charge in courts 3, 5, 7 and 9 would be deemed not proved we are reasonable  doubts. 

3.3.3 Ratio Decidendi 

The reason for the decisions include; 

The lack of proof of the elements amongst which include; 

• Existence or a forged document or writing. 
• Creation of the forgery by the defendant.  
• Knowledge of the forgery of the documents by the defendants. 
• Intention of the defendants that the documents will be acted upon by the victim to its  prejudice whilst believing it to be genuine. 

Personal forgery of the documents by the accused In a charge of forgery, the original document must be tendered in evidence

3.4.4. Issue 4 

The appellant was convicted for using forged documents which he knew should have know was  forged as genuine, As contained in counts 4, 6, 8 and 10 of the charge. 

However, since no legal reason was given for this conviction, the ruling would amount to an  arbitrary breach to the right of fair hearing . 

Therefore, The conviction of the appellant On count 4, 6, 8 and 10 which was decided without  giving reasons Is invalid and therefore set aside. 

 3.4.2 Ratio Decidendi  

 A ruling must be backed by legal reason to be valid. 

5.0 Final Decision and Impact 

For the general ruling of the case, the appeal succeeded in part , and was allowed in part.  Therefore for the conviction in counts 1,2,4,6,8,and 10 were reaffirmed while those on counts  2,5,7 and 9 were set aside .  

The impact of this on the appellant was that he had to serve seven years for each counts  concurrently which summed up to total of forty _two years imprisonment.