The Court of Appeal, Lagos Division, has acquitted businessman Hilary Ogbobe and set aside his conviction and sentences for obtaining money by false pretence and stealing, holding that the prosecution failed to prove its case beyond reasonable doubt.
In a unanimous judgment delivered on November 27, 2025, by Justice Joseph Ekanem, with Justices Paul Bassi and Polycarp Kwahar concurring, the appellate court allowed Ogbobe’s appeal against the May 2, 2023 judgment of the Lagos State High Court sitting in Ikeja.
Ogbobe had been convicted by Justice Morenike Dada for obtaining money by false pretence under the Advance Fee Fraud and Other Fraud-Related Offences Act and for stealing under the Criminal Law of Lagos State.
He was sentenced to seven years’ imprisonment on the first count and three years on the second, to run concurrently.
The trial court also ordered the winding up and forfeiture of the assets of the third accused company and imposed financial penalties.
Dissatisfied, Ogbobe appealed, contending that the dispute was contractual and that the prosecution failed to establish fraudulent intent or false representation. Giving the lead judgment, Justice Ekanem held that the burden of proof in criminal trials rests squarely on the prosecution and does not shift to the accused. He faulted the trial court for placing the burden on the appellant to prove the existence of the dredger that was the subject of the transaction.
The appellate court found that although the prosecution alleged that Ogbobe falsely claimed to have a dredger for sale, it failed to investigate or disprove the appellant’s extra-judicial statement that the dredger was located at a named dredge yard in Satellite Town, Lagos.
The court noted that the prosecution neither visited the yard nor invited the appellant to identify the dredger, despite photographic evidence and testimony led by the defence.
Justice Ekanem stressed that any defence raised by an accused, however weak, must be investigated by the prosecution. Failure to do so, he said, was fatal to the case.
Justice Ekanem further held that the trial court wrongly treated the absence of documentary proof from the prosecution as a burden on the defence.
On the charge of obtaining money by false pretence, the judge held that the prosecution failed to establish that the representation made by Ogbobe was false or that it was made with intent to defraud.
The court further held that inability to repay money within an agreed timeline does not automatically translate into a criminal offence.
“What emerged from the facts is a failed commercial transaction,” Justice Ekanem held, adding that civil remedies, not criminal prosecution, were appropriate.
On the stealing charge, the appellate court found no evidence of dishonesty or intent to permanently deprive the complainant of his money.
It held that the complainant consented to the use of the funds for business purposes, defeating the vital element required to sustain the offence.
The court also struck out a preliminary objection filed by the prosecution, holding that it was abandoned, as no arguments were advanced in support of it.
On the ancillary orders made by the trial court — including the winding up of the company, forfeiture of assets, a ₦5 million fine, and an award of ₦10 million as “profit” — the Court of Appeal held that they were unsustainable, especially after the failure of the substantive counts. It described the orders as an abuse of judicial power.
In the final analysis, the court resolved all issues in favour of Ogbobe, set aside the judgment of the lower court, and entered a verdict of not guilty.
“He was accordingly discharged and acquitted,” the court held.
Justice Bassi, in a concurring opinion, said the decision reflected the unanimous view of the panel and fully adopted the reasoning and conclusions of the lead judgment.
