The Court of Appeal in Lagos has acquitted and discharged Hilary Ogbobe, overturning his conviction and seven-year prison sentence over an alleged N12 million fraudulent dredger transaction.
A three-member panel of the court, in a unanimous judgment delivered by Justice Joseph Eyo Ekanem, held that the prosecution failed to prove beyond reasonable doubt that Ogbobe obtained the money by false pretence or dishonestly stole it.
The court also set aside the N10 million loss-of-profit award made by the Lagos State High Court, Ikeja, in favour of the complainant.
Ogbobe had been convicted by the High Court on May 2, 2023, and sentenced to seven years’ imprisonment for obtaining money by false pretence and three years for stealing, with the sentences to run concurrently.
The case followed a transaction in which Ogbobe allegedly approached the complainant, identified as PW1, to raise money for the purchase of a scrap dredger purportedly being sold by the Lagos State Government.
PW1 paid about N12.4 million into the account of a company linked to Ogbobe. The prosecution’s case was that the dredger was later sold to another person and that Ogbobe subsequently told the complainant he wanted to invest the money in an oil and gas business and would repay it within 90 days.
Ogbobe denied the allegations, maintaining that the dredger existed but the proposed purchase collapsed after the complainant failed to provide the agreed funds within the required period.
He further told the court that, after the dredger deal failed, the complainant agreed that the money could be invested in the purchase and sale of diesel in Ghana, but the transaction subsequently failed.
In allowing the appeal, Justice Ekanem said the prosecution had failed to establish the essential ingredients of obtaining money by false pretence.
The judge noted that the trial court itself had found that the alleged false pretence concerned the existence of the scrap dredger.
However, the Court of Appeal held that the prosecution retained the burden of proving that allegation.
“The burden of proof on the prosecution does not shift and the standard required to discharge the same is proof beyond reasonable doubt,” the judgment stated.
It added: “An accused is not required by the law to prove his innocence.”
Justice Ekanem particularly faulted the investigation into Ogbobe’s defence.
He noted that Ogbobe had told the police in his statement that the dredger was at a particular dredge yard in Satellite Town, Lagos, but the investigating officer failed to visit the location or establish whether the dredger had ever been there.
The judge observed that the officer “did not ask the appellant to take him to the said yard to ascertain its existence and to find out if such dredger was there or was ever taken there.”
The court cited earlier authorities emphasising the duty to investigate an accused person’s defence.
Quoting an earlier Supreme Court decision, Justice Ekanem stated: “Any defence put up by an accused person whatsoever whether stupid or spurious must be investigated thoroughly in order to render it false or unlikely.”
The appellate court also rejected the trial court’s conclusion that Ogbobe had lost the dredger before receiving the second N5 million payment from PW1.
The judgment established that the first two payments were made on July 22 and August 12, 2016, while the dredger was sold to another person on August 22. A further N5 million was paid by PW1 on September 17, after the opportunity to purchase the dredger had been lost.
Justice Ekanem said Ogbobe had explained that he attempted to contact PW1 after the dredger deal collapsed but could not initially reach him.
The judge noted that Ogbobe was not cross-examined on that evidence.
“There was therefore a loss of communication between the appellant and the PW1,” the court held, adding that the trial judge’s conclusion that Ogbobe had committed an offence by receiving the subsequent N5 million “is not supported by evidence on the record.”
The Court of Appeal also examined what happened after the dredger transaction failed.
According to the judgment, PW1 agreed to allow Ogbobe to invest the money in an oil business, with the understanding that the money would subsequently be repaid.
Justice Ekanem said the evidence did not show that PW1 had been forced into the arrangement.
“The impression that I have of the evidence above is not that the PW1 was compelled to let the appellant trade with the money,” he said.
The judge added that PW1 “had his own free will” and could have insisted on an immediate refund or sued Ogbobe if the money was not returned.
The court consequently held that the failure to repay the money did not turn the business dispute into a criminal offence.
“The fact that the appellant failed to pay as found by the trial court did not translate the civil transaction to a criminal one,” the judgment stated.
It further held: “The prosecution failed to establish that the representation by the appellant was false or that there was an intention to defraud on the part of the appellant.”
On the stealing charge, the Court of Appeal similarly found that the prosecution had failed to establish dishonesty or fraudulent intent.
Justice Ekanem said the evidence showed that Ogbobe had received PW1’s consent to use the money for the proposed oil business.
“Given the facts and circumstances of the instant matter, I agree with senior counsel for the appellant that there is no element of fraud on the part of the appellant nor did the appellant have the intent to use the money at his will,” the judge held.
The court described the underlying matter as a failed contractual transaction, stressing that civil remedies, rather than criminal proceedings, were the appropriate means of addressing such a dispute.
“What has emerged from the facts and circumstances of this case is that the transaction, the subject of the information by which the appellant was charged, was a contractual transaction that failed,” Justice Ekanem held.
He added that “Civil remedies and not criminal proceedings are the right means of remedying such breaches.”
The appellate court also faulted the N10 million profit awarded by the trial court to PW1.
Justice Ekanem held that, having resolved the substantive issues in favour of Ogbobe, “the learned trial judge was not right in awarding profit of N10 million to the PW1.”
The court consequently allowed the appeal, set aside the High Court judgment and entered a verdict of not guilty.
Ogbobe was discharged and acquitted, while the N10 million award was also set aside.
Justices Paul Ahmed Bassi and Polycarp Terna Kwahar concurred with the lead judgment.
Justice Bassi said the decision represented the unanimous position of the panel, while Justice Kwahar stated that he was in “complete agreement” with the lead judgment and also held that the appeal had merit.
