Whether Restitution Can Be Ordered In Addition To Prescribed Penalty

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 2nd day of December, 2022

Before Their Lordships

Amina Adamu Augie

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Adamu Jauro

Tijjani Abubakar

Justices, Supreme Court

SC/82/2016

Between

PATRICK EZERIKE     APPELLANT

                    And

THE STATE     RESPONDENT

(Lead Judgement delivered by Honourable Tijjani Abubakar, JSC)

Facts

The Appellant and one other accused person were arraigned before the High Court of Anambra State on a three-count Charge of obtaining property by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006; representing themselves as capable of producing Nigerian currency from a piece of paper and other materials contrary to Section 2(a) of the Advance Fee Fraud and Other Related Offences Act and; attempt to obtain money by false pretence contrary to Section 8 of the Advance Fee Fraud and Other Related Offences Act. At the conclusion of trial, the High Court found the Appellant guilty as charged, and sentenced him to 15 years imprisonment on count one, 10 years imprisonment on count two, and 15 years imprisonment on count three. The court also ordered the Appellant to refund the sum of N400,000.00 which he was found to have obtained through false pretence, to the Complainant.

Dissatisfied with his conviction and sentence, the Appellant appealed to the Court of Appeal. The appellate court, after hearing the appeal, found no merit in it; hence, it dismissed the appeal and affirmed the judgement of the trial court. Aggrieved, the Appellant filed a further appeal to the Supreme Court.

Issues for Determination

The following issues were considered by the Apex Court in its determination of the appeal:

1. Whether the trial and conviction of the Appellant by the trial court and his conviction and sentence affirmed by the Court of Appeal, was not in violation of Section 36(6)(a) & (b) of the 1999 Constitution (as amended) and Section 309 of the Administration of Criminal Justice Law of Anambra State 2010.
2. Whether the Court of Appeal was right to hold that the Order of the trial court directing the Appellant to pay back to the Complainant the defrauded sum after sentencing him to various terms of imprisonment, did not amount to double punishment and did not occasion a miscarriage of justice.
3. Whether the Court of Appeal was right in upholding the judgement of the trial court, that the Respondent proved its case against the Appellant beyond reasonable doubt.

Arguments

On the first issue, counsel for the Appellant argued that after the initial two counts information preferred against the Appellant was withdrawn and substituted with a three counts information filed on 19th July, 2012, the counts were not separately read to the Appellant, nor was the Charge explained to him before his plea was taken. He submitted that the failure of the prosecution to read the counts separately to the Appellant, was a clear violation of the provisions of Section 36(6)(a) of the 1999 Constitution. He added that this also contradicts Section 309 of the Administration of Criminal Justice Law of Anambra State, 2010, which requires an accused person to enter his plea separately to each count in a Charge. Counsel for the Appellant relied on the case of ADAMU v STATE (1986) 3 NWLR (Pt. 32) 865, to argue that failure to comply with these provisions will render the trial null and void. He submitted that the Appellant’s constitutional right had been violated in a manner that engendered a miscarriage of justice, and rendered the entire proceedings before the trial court and the Court of Appeal defective, null and void. Arguing conversely, counsel for the Respondent submitted that the records of appeal showed that on 11th October, 2012, before the Appellant and his co-accused took their pleas to the Amended Charge, the Charge was read in English Language and interpreted to them in Igbo Language. He submitted that what the law provides is that the Charge should be read and explained to the accused person to the satisfaction of the court, and this was duly complied with at the trial court.

On the second issue, counsel for the Appellant contended that the order by the court that the Appellant should refund to PW1 the defrauded sum when it had convicted the Appellant and sentenced him to various terms of imprisonment, amounted to double jeopardy and double punishment. He argued that it is not within the powers of a court exercising only criminal jurisdiction to make an order of refund,  and that it is only a civil court that has the powers to make such order for refund of the alleged defrauded sum. Responding, counsel argued on behalf of the Respondent that the contentions of the Appellant are in total disregard and a misconception of Section 11(1)(a) of the Advance Fee Fraud Act, and that the Order made by the trial court for the Appellant to refund the sum of N400,000.00 to PW1 does not amount to double punishment.

Arguing the third issue, counsel for the Appellant submitted that both the first and second extra-judicial statements of PW1 and her oral evidence at the trial court were contradictory and inconsistent, that even the trial court referred to the existence of these material contradictions in its judgement. He argued that where there are contradictions in the evidence of the prosecution witness and a doubt is noticeable as to whether the accused person committed the crime he was alleged to have committed, the courts are always enjoined to decide in favour of the accused person. He relied on CHRISTOPHER ONUBOGU & ANOR. v THE STATE (1974) 9 SC 1. Counsel argued further that the trial court failed to properly consider the Appellant’s defence, especially the defence that his extra- judicial statements were signed out of compulsion and on pain of death. He urged the court to resolve the appeal in favour of the Appellant. Reacting to the submissions, counsel for the Respondent argued contrarily that the contention of the Appellant that the Respondent did not prove its case as required by law, was borne out of a total misconception of the documentary evidence before the court and the oral testimony of PW1. He argued further that the purported contradictions in the extra-judicial statements and oral testimony of PW1, were satisfactorily explained to the court.

Court’s Judgement and Rationale

Deciding the first issue, the Supreme Court held that an arraignment would be valid when the Charge is read and explained to the accused person in the language he understands, and he is allowed to enter a plea of guilty or not guilty.  In this case, it was evident from the records of appeal that the Amended Charge was read and interpreted to the Appellant in Igbo language, and the Appellant clearly understood the Charge before pleading guilty to same. Given the foregoing, the court held that the contention of the Appellant that Section 36(6)(a) & (b) of the 1999 Constitution (as amended) and Section 309 of the Administration of Criminal Justice Law of Anambra State, 2010 were not complied with in the arraignment of the Appellant, was therefore incorrect.

On the second issue, their Lordships held that by the provisions of Section 11 of the Advance Fee Fraud and Other Related Offences Act, the High Court has the power to order, in addition to any other penalty prescribed under the Act, that the person convicted of an offence under the Act makes restitution of the money or property he dishonestly acquired to the victim of the false pretence or fraud. Section 11 of the Act donated full powers to the trial court to make an order of restitution, which is an act of giving back to a person something that was lost or stolen, or paying him money for the loss, apart from any other punishment or penalty it might have imposed on the convict – EZEANI v FRN (2039) LPELR-46800 (SC) 22–25. The court also referred to Section 454(3) of the Administration of Criminal Justice Act, which empowers the court to make an order for compensation for loss or injury, in addition to any other punishment prescribed thereunder – AJIBOYE v FRN (2018) LPELR-44468 (SC). 

The court held further that the jurisprudence behind restitution for victims of crime is that, it is the right of a victim to be reimbursed for losses caused directly. Restitution is thus, not a punishment for the offender; it is regarded in law as monetary debt the offender owes the victim of the crime. It follows therefore, that the trial court was right in imposing the payment of the defrauded sum of N400,000.00 in addition to the terms of punishment, and the Court of Appeal rightly affirmed same.

On the third issue, the Apex Court held that in order to succeed in proving the offence of obtaining money by false pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, the following ingredients must be established and proved by the prosecution: (a) That the accused made a false representation to the victim, with the intent to defraud her; (b) That the pretence or representation was false to the knowledge of the accused; (c) That the false pretence or representation made by the accused to the victim, was indeed false; and (d) That the false pretence or representation, operated in the mind of the unsuspecting victim. To prove its case at the trial court, the Respondent called two witnesses, and also tendered exhibits in proof of its case. The court held that apart from the confessional statement of the Appellant, which was admitted into evidence as Exhibit D after a trial-within-trial established its voluntariness, the testimony of the victim who testified as PW1 in her oral evidence before the court, narrated how the Appellant and his gang took her to Asaba and lured her into believing that there was a chemical which, if used, could turn paper into Naira currency. PW1 also testified that the Appellant requested her to bring money, so that they could buy chemicals to make more money. Although the Appellant argued that PW1’s testimony was inconsistent with her extra-judicial statement, it was however, on record that PW1 adequately and satisfactorily explained the said inconsistencies. In the instant appeal, therefore, there was clear, direct, credible oral and documentary evidence, particularly Exhibit D, establishing beyond reasonable doubt the guilt of the Appellant for the offences he was charged with.

Appeal Dismissed.

Representation

Sir Ejike Ezenwa, SAN, with Jacinta Okoye Esq. and Obinatu Kenneth Esq. for the Appellant.

Dr. Obianuju Nwogu for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)