Adebayo v. State (1987)


Adebayo v. State
1 June 1987

1.
JOSEPH ADEBAYO

2.
JIMOH SULE

3.
SAMUEL ADEWALE

4.
THEOPHILUS RANSON

V.

THE STATE

COURT OF APPEAL

(BENIN DIVISION)

CA/8/42/86

OMOIGBERAI EBOH, J.C.A. (Presided)

DAHIRU MUSDAPHER, J.C.A. (Read the leading Judgment)

OLATUNJI AJOSE-ADEOGUN, J.C.A.

TUESDAY, 14TH APRIL, 1987

CRIMINAL LAW AND PROCEDURE – Accused reserving his statement – Judge commenting on – Propriety of.

CRIMINAL LAW AND PROCEDURE – Amendment of charge – Need for flesh plea.

CRIMINAL LAW AND PROCEDURE – Charges – Duplicity of – Section 156 Criminal Procedure Act.

CRIMINAL LAW AND PROCEDURE – Charges – Joinder of stealing with obtaining by false pretences.

CRIMINAL LAW AND PROCEDURE – Conspiracy – Acquittal on substantive offence – Conviction on conspiracy – Whether permissible.

CRIMINAL LAW AND PROCEDURE – Conspiracy.

CRIMINAL LAW AND PROCEDURE – Judgment – Findings – No separate findings on each of counts – Effect.

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CRIMINAL LAW AND PROCEDURE – Obtaining by false pretences – Representation – Whether as to future.

CRIMINAL LAW AND PROCEDURE – Withdrawal of charge against some of the accused persons – Whether it constitutes an amendment of charge necessitating taking of fresh plea.

EVIDENCE – Accomplices – Corroboration – Accomplice or victim.

Issues:

1.
Could it be said that withdrawal of the charges against the 5th and 6th accused persons who were never before the Court constitute an amendment to the charge as laid’

2.
Was the count for stealing bad for duplicity’

3.
Was the charge of conspiracy proved according to law’

4.
Can a conviction on charge of conspiracy stand when the conviction on the substantive offence is quashed’

Facts:

The appellants were charged along with two others, who escaped from custody, on three counts of

(a)
conspiracy

(b)
obtaining money by false pretences

(c)
stealing.

According to the prosecution, the six accused persons at various times and occasions, demanded and received from the complainant sums of money totalling N582,000.00. The complainant parted with her money on the false representation made to her by the accused that they had a company which had ordered rice from abroad and were prepared to sell her the commodity in large quantities. Before the trial began, two of the six accused persons escaped from custody. The charge against the absconding accused was withdrawn and the trial continued against the remaining four accused persons, who were found guilty and sentenced to various terms of imprisonment.

Not satisfied with the verdict, they appealed to the Court of Appeal Benin. There their Counsel contended inter alia:

(a)
that the trial was a nullity in that when the charges against the two accused persons were withdrawn, no fresh plea was taken

(b)
that the charge of stealing was bad for duplicity

(c)
that the charge of conspiracy was not proved according to law. Learned counsel for the respondent conceded that the charge of stealing

was bad for duplicity, and this raised the question whether on the quashing of the conviction for stealing, the conviction for conspiracy could still stand.

Held[Dismissing the Appeal in Part]:

1.
Where a charge is amended it is necessary to call upon the accused person or persons to make a fresh plea, and if no fresh plea is taken, the trial is rendered a nullity.

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2.
The withdrawal of the charge against the two accused persons who were never before the court did not constitute an “Amendment of the charge” as stipulated under Sections 162- 165 of the Criminal Procedure Law. As far as the appellants were concerned and affected, nothing was charged or altered in respect of the allegations they were each and individually called upon to answer.

3.
The withdrawal of the charge did not introduce a new charge to warrant the appellants to make a fresh plea.

4.
A charge which is bad for duplicity could only be upheld when there is some express provision of law authorising a departure from the rule.

5.
The single charge of stealing for acts done on thirteen separate occasions in this case was bad for duplicity. There should have been framed against all the appellants or some of them thirteen separate charges or counts of stealing which would have afforded one or some of the appellants to put in some separate defence.

6.
The defect in this case of duplicity cannot be cured by the provisions of section 152(2) of the C.P. A. because the appellants were never charged with fraudulent appropriation of money or property for which the sub-section is designed to deal with.

7.
Conspiracy is an agreement by two or more persons to commit any charge which may be joined with a charge for the substantive offence.

8.
In every charge of conspiracy, the prosecution must prove that there was indeed a meeting of the minds of those concerned.

9.
An accused person cannot be convicted of conspiracy to commit independent evidence that at least one another person has conspired with him: [Fayemi v. A.-G. (1966) All N.L.R. 186 refers.]

10.
Conspiracy can be formed in one of the following ways:-

(a)
The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.

(b)
There may be one person who is the hub around whom the others revolve, like the centre of a circle and the聽circumference.

(c)
A person may communicate with A and A with B, who in turn communicates with another and so on. This is what is called chain of conspiracy.

11.
In order to establish conspiracy, it is not accessory that the conspirators should know each other, so long as they know of the existence and the intention or purpose of the conspiracy: [Queen v. Esege (1962) 1 All N.L.R. 110 refers.]

12.
Proof of the existence of conspiracy is generally a matter of inference deduced from certain criminal act of the parties

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concerned, done in pursuance of an apparent criminal purpose in common between them.

13.
In order to convict for conspiracy, it is not necessary that the accused persons concerned should have concocted the scheme, the subject of the charge, nor that they have originated it.

14.
If a conspiracy is formed and a person joins it afterwards, he is equally guilty with the original conspirators.

15.
It is necessary that conspiracy must be proved by independent evidence. It is the overt act or omission which evidences it; conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy: [Njovens v. State (1973) 5 S.C. 17; Onochie v. Republic (1966) 1 All N.L.R. 86 refer.]

16.
In Nnaji and Ors.v. Inspector-General of Police(1957) 2 F.S.C. 18-19, the Federal Supreme Court held that an accused cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence concerned but where there is evidence in support of the charge, an accused may yet be convicted of conspiracy to commit an offence even though the charge for the substantive offence fails not for want of evidence but on a technical ground: [Ogbebor v. Inspector- General of Police(1964) 1 ALL N.L.R. 9 applied.]

17.
In the instant case the conviction for the offence of conspiracy to steal is valid even though the conviction for stealing cannot stand on the technical ground of duplicity.

18.
Having regard to the evidence adduced before the trial Court, the c inclusion of the charge for the offence of conspiracy did not work hardship or occasion any miscarriage of justice on any of the appellants or loaded the dice any more heavily against any particular one of them.

19.
The trial Judge had adequately considered the case of each of the appellants separately and extensively dealt with their defences and in each case disbelieved each of the appellants and found them guilty. Even if there is irregularity in the way he pronounced the appellants guilty as charged, an irregularity of such nature cannot vitiate the convictions as there has been no miscarriage of justice: [Oyediran v. The Republic(1967) N.M.L.R. 122 applied.]

20.
Whilst it is not binding on an accused to make any statement to the police as it is the duty of the prosecution to prove the guilt of the accused, a Judge may be entitled to draw any reasonable inference in certain circumstances provided always, care must be taken to ensure that it was the duty of the prosecution to prove all the allegations.

21.
Even if such a comment is disregarded in this case, there is abundant evidence that connects the appellant with the allegations which the learned Judge believed and acted upon.

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22.
It is elementary law that an appeal Court will only interfere with the findings of fact made by a trial Court where the finding is perverse or cannot be justified or supported having regard to the evidence adduced.

23.
The representations the accused made in this case were not to future acts as accepted by the trial Court; as the representations that they were dealers in rice and that they had ordered, received, and had rice in large quantities in their possession could not be those as to a future act. They are representations of the past culminating in the present acts.

24.
Accomplices or Victim:

聽聽聽聽Per MUSDAPHER, J.C.A.:

“With the greatest respect to counsel, I cannot find the evidence which makes the witnesses particepes criminis. They cannot but be regarded and described as stupid victims who were manipulated and deceived by experts in the game of conmanship. Their actions and conduct were no doubt not only idiotic but also reckless and careless. Such actions and conduct clearly do not portray criminal intent on their part.”

Nigerian Cases Referred to in the Judgment:

Achora v. Inspector-General of Police 3 F.S.C. 30

Adeyemi v. Commissioner of Police (1961) All N.L.R. 367

Daboh v. State (1977) 5 S.C. 197

Domingo v. Queen (1961) All N.L.R. 81

Fayemi v.A.-G. Western Nigerian (1966) All N.L.R. 186

Mumini v. State (1975) 6 S.C. 79

Nnaji v. Inspector-General of Police 2 F.S.C. 18-19

Njovens v. State (1973) 5 S.C. 17

Ogbozor v. Inspector-General of Police (1964) All N.L.R. r.9.

Onochie v. Republic (1966) 1 All N.L.R. 86

Oyediran V. Republic (1967) N.M.L.R. 122

Queen v. Aniemeke (1961) All N.L.R. 43

Queen v. Esege (1962) 1 All N.L.R. 110

Runsewe v. Commissioner of Police (1968) N.M.L.R.112

Foreign Cases Referred to in the Judgment:

R. v. Morphy 173 E.R. 505

R. v. Meyrick (1929) 21 C.A. r. 94

R. v. Aspinall 2 Q.B.D. pg. 45

R.v. Griffin 49 CAR 279

Mulcahy v. R.L.R. 3 H. 306

R. v. Briscas 4 East 164

R. v. Cooper (1947) 2 A.E.R. 701

R. v. Griffin 9 C.A.R. 279

R. v. Meyrick (1929) 21 C.A.R. 94

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Adebayo v. State
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R. v. Murphy聽173 E.R. 505

R. v. Parnell 14 Cox 508

R. v. Plumber (1902) 2 K.B. 348

R. v. Simmonds (1969) 1 Q.B. 685

Nigerian Statutes Referred to in the Judgment:

Criminal Procedure Act, Sections 152(2), 156

Criminal Procedure Code 152(2)

Appeal:

This was an appeal from the decision of Akure High Court which convicted the appellants. The Court of Appeal Benin upheld and dismissed the appeal in part.

History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought Benin Division

Names of Justices that sat on the appeal: Omoigberai Eboh, J.C.A. (Presided), Dahiru Musdapher, J.C.A. (Read the lead Judgment), Olatunji Ajose-Adeogun, J.C.A.

Appeal No.: CA/B/42/86

Date of Judgment: Tuesday, 14th April 1987

High Court:

Name of the High Court: Akure, Ondo State

Counsel:

M. B. Alonge – for the 2nd and 4th Appellants.

A. O. Fesobi – for 1st and 3rd Appellants.

Modupe Fashanu (Mrs.) D.D.P.P. (Ondo State) – for Respondent

MUSDAPHER, J.C.A. (Delivering the Leading Judgment): In the High Court of Ondo State, in the Akure Judicial Division and in Charge No. AK/C/84, the four appellants and two others (who escaped from custody and were not tried) were charged before the trial Court and pleaded not guilty to the following amended charges.

COUNT I: 聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽聽STATEMENT OF OFFENCE

CONSPIRACY, Contrary to and Punishable under Section 445(6) of the Criminal Code Cap. 28 Vol. I, Laws of Western Nigeria (1959) as applicable to Ondo State,

PARTICULARS OF OFFENCE

JOSEPH ADEBAYO (M), JIMOH SULE (M) SAMUEL F

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ADEWALE (M), THEOPHILUS RANSON (M), GODWIN ANEBOH (M) AND SAMUEL MORAKINYO (M) between 15th March, 1983 and 13th May, 1983 at Akure Judicial Division did conspire to effect an unlawful purpose to wit stealing,

COUNT II

STATEMENT OF OFFENCE

Obtaining money by false pretences contrary to and punishable under Section 359 of the Criminal Code Law Cap. 28 Vol. I Laws of Western Nigeria (1959) now applicable to Ondo State.

PARTICULARS OF OFFENCE

(1)
JOSEPH ADEBAYO(M),

(2)
JIMOH SULE (M),

(3)
SAMUEL ADEWALE (M),

(4)
THEOPHILUS RANSON (M)

(5)
GODWIN ANEBOH (M), and

(6)
SAMUEL MORAKINYO (M)

between 15th March, 1983 and 13th May, 1983, at the Akure Judicial Division falsely obtained the sum of N582,000.00 from ANIKEIGE(F).

COUNT III:

STATEMENT OF OFFENCE

Stealing, contrary to and punishable under Section 331 (b) of the Criminal Code Cap. 28 vol. 1 Law of Western Nigeria, (1959), now applicable to Ondo State.

PARTICULARS OF OFFENCE

JOSEPH ADEBAYO (M), SAMUEL ADEWALE (M), THEOPHILUS RANSON (M), GODWIN ANEBOH (M) and (5) SAMUEL MORAKINYO (M) between 15th March 1983 and 13th May, 1983 at Akure in the Akure Judicial Division stole the sum of N582,000.00 property of ANIKEIGE (F),”

As I said above, Godwin Aneboh and Samuel Morakinyo escaped from custody and were not tried. The charges against them were withdrawn. At the trial, the prosecution called 3 witnesses and each of the appellants gave evidence and after the address of learned counsel, the learned trial Judge in his judgment delivered on 25th June, 1985, found all the appellants guilty on all the three counts and sentenced them to various terms of imprisonment.

It is against their convictions and for some of them against the sentences aforesaid that the appellants have individually filed their notices of appeal. In compliance filed a joint brief of argument for the two appellants, while Mr. Alonge, the learned counsel for the 2nd and 4th appellants filed two separate briefs on behalf of his clients, and Mrs. Modupe Fasanmi, D.D.P.P. Ondo State filed three briefs in reply to the appellants briefs.

Before dealing with the grounds of appeal and the issues and or questions to be determined in these appeals, it is desirable to set out the facts on which the prosecution relied to prove the charges. The first prosecution witness Anike Ige female who described herself as a trader – a cement distributor, a wholesaler of beer and rice, testified on oath that she knew all the appellants including

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Godwin Anebor and Samuel Morakinyo. Theophilus Ranson, the 4th appellant and Godwin Anebor were her regular customers. They used to go her canteen to eat and drink. Sometimes in March, 1983 Godwin Anebor alias Segun and the 4th appellant came to her and told her they had a Company which had imported rice from abroad and if she was interested, they were prepared to sell her rice in large quantities. At that time, as she had just taken a consignment of cement, she was a bit short of money, but she had just taken a consignment of cement, she was a bit short of money, but she nevertheless gave Godwin N3,000.00. On the next day to be precise, on the 16th March, 1983, Godwin returned to P.W.l and demanded more money, as their Company had other consignment of goods, that is milk, rice, fish, e.t.c. Godwin collected another N2,500.00 on that day. Yet on the third day Godwin collected another N2,5000.00 on that day. Yet on the third day Godwin collected a further sum of N6,000.00 from P.W.l.

On the 21st March, 1983, Godwin and the 4th appellant came to her and admitted receiving the total sum of N11,500.00 two towards the purchase of rice. They claimed to have allocated N50,000.00 worth of rice to her, but they needed more money and she gave a further sum of N4,000.00. On the same 21st March, 1983, at Oshodi Market the 2nd appellant, Jimoh Sule not only admitted his membership of the company which will sell rice to her, but also acknowledged that their company had received all the advance payments made and added that P.W.l was further required to pay a further sum of N24,500 for what the 2nd appellant described as “Booking”, “Registration” and “Form M.”

As she had no money, P.W.l went to P.W.2 who gave her the sum of N50,000.00 and out of which she gave the 2nd appellant the sum of N24,500.00 he had earlier demanded.

P.W.l after the payment aforesaid was advised to fill a certain form in triplicate and to bring 3 copies of her passport size photographs. It was then that the 2nd and 4th appellants took her to the house of the 1st appellant JOSEPH ADEBAYO who was described as the Chairman of the Company. The 1st appellant after admitting to her his relationship with 2nd and 4th appellant, promised to give her in return the sum of N130.000 if she would give him a sum of N22,500.00. It was at that juncture that the lst appellant hit her with a charm on her chest and threatened to change her into a man. P.W.l became frightened and informed the appellant that she no longer wanted to buy the rice. But she had already borrowed the sum of N24,500.00 from the Bank. It was with difficulty that P.W.2 persuaded her to tell him what had happened. When she eventually told P.W.2 persuaded her ordeal, they drove to the house of 1st appellant and therein met lst, 2nd and 4th appellants. The 1st appellant still demanded the sum of N22,500.00 in order to complete the rice transaction. P.W.2 there and then allowed P.W.l to draw the said amount which was eventually handed over to the 1st appellant by P.W.l.

After the payment of N22,500.00, the appellants against demanded a further sum of N60,000.00 when this was paid in the presence of Morakinyo, (he was not tried) Morakinyo in the presence of 1st, 2nd, and 4th appellant demanded for a further sum of N5,500.00. And when the sum was handed over to Morakinyo, in the house of the 1st appellant, the 1st appellant demanded for a further sum of N8,000.00. P.W.2 still obliged P.W.l, she drew out the sum and came to the

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house of the 1st appellant and in the presence of 1st, 2nd and 4th appellants, and Morakinyo, the sum was handed over to the 2nd appellant. There were other demands of N25.000.00 and N120,000.00 which were in like manner handed over to one or the other of the appellants.

It was in May, 1983, that the lst appellant sent the 3rd appellant to P.W.l, who later in company of Segun told P.W.l that 1st, 2nd, 4th and Morakinyo had been dismissed from the company because of their fraudulent activities. It was as a result of a further representation made by Segun that a further sum of N60,000 was paid to him.

Now the third appellant, who was said to be the overseas operator of the Company, also and in the like manner received on divers dates the sums of N2,000.00, N35,000.00, N115,000.00 and N30,000.00. All in, all the appellants and 2 others at large collected the total sum of N582,000.00 from P.W.l and it was when the rice and the other commodities were not forthcoming and the money was not refunded, the P.W.l reported the matter to the Police. P.W.2, Babatunde Akinmulero who is the Bank Manager corroborated the evidence of all these payments to the appellants and the purposes for which they were made.

In their statements to the Police and in their testimonies before the trial court, the appellants denied knowledge of the rice transactions etc, and indeed denied knowing each other. The 1st appellant admitted knowing the P.W.l when he was going to her shop to eat. The second appellant claims to be a herbalist, and that at her request he made medicine for P.W.l so that her husband would love her more than the other wives and for which services she was still owing him the sum of N100.00. The third appellant also admits knowing the P.W.l but only as a herbalist, he also made some medicine for her and still she owes him N200 naira. The 4th appellant admitted only to knowing the 1st P.W. but he had never had any transaction with her.

The learned trial Judge believed P.W.l and P.W.2 and disbelieved the appellants and as I said above, convicted them on all the three counts and sentenced to various terms of imprisonment.

For the sake of convenience, I intend in this judgment to deal first with the appeals of 1st and 3rd appellants. They are represented by Mr. Fesobi, who filed a single brief of argument for the two of them. But I shall of course at the same time deal with the appeal on the 2nd and the 4th appellants where their grounds contain the same or similar complaints against their convictions. The grounds of appeal accompanying the notices of appeal of convictions. The grounds of appeal accompanying the notices of appeal of the 1st and 3rd appellants are identical except that, for the lst appellant, there is an extra ground which deals with the complaint that the learned trial Judge was wrong to comment on the “reservation” of his statement. With the leave of this courts, and additional ground of appeal was allowed to be argued for both the 1st and 3rd appellants. The grounds of appeal are:-

“1.
The whole trial is a nullity as the appellant was arraigned and tried with Godwin Aneboh and Samuel Morakinyo (Alias Segun) who were not before the court.

2.
The learned trial Judge erred in law to hold that “I find all the counts against the four accused persons proved and they are guilty as charged.”

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PARTICULARS OF THE ERROR

(i)
There are more counts than one of which each accused person is charged.

(ii)
There is no express finding on each of the 3 counts against the appellant (JOSEPH ADEBAYO).

3 聽聽聽聽The learned trial Judge misdirected himself in law to hold in his judgment that “The reservation of statement was merely to bid for time to formulate lies and defences to the crime which was committed” whereby the court rejects the defence of the appellant (Joseph Adebayo).

PARTICULARS OF THE MISDIRECTION

(i)
The law allows the appellant to reserve his statement as he did.

(ii)
The Nigerian Constitution provides that an accused person be given adequate time and facilitate for the preparation of his defence.

4 聽 聽聽The learned trial Judge erred in law to hold in his judgment that the charge of conspiracy with other offences had not worked hardship on the appellant (Joseph Adebayo)

PARTICULARS OF THE ERROR

(i)
The same piece of evidence relied on to establish the alleged conspiracy were relied upon to establish the alleged offences of obtaining money by false pretences and stealing.

(ii)
Evidence which would have been inadmissible if the conspiracy Count was not contained in the charge was admitted and used against the appellant in counts of obtaining money by false pretence and stealing.

5 聽The learned trial Judge misdirected himself in law’ to hold that the representation to support the charge of obtaining money by false pretences “was present” which misdirection has occasioned a miscarriage of justice

PARTICULAR OF THE MISDIRECTION

(i)
The 1st P.W. Anike Ige testified thus – “They promised to supply me rice, stockfish and milk.”

(ii)
The 1st P.W. Anike Ige testified – “They demanded N60,000.00 and promised to make it N130,000.00.”

6
The learned trial Judge erred in Law to hold that the count of stealing is not bad for duplicity.

PARTICULARS OF THE ERROR

(i)
The 1st P.W. Anike Ige alleged that:

(a)
I gave Segun N3,000.00

(b)
I gave Segun N2,500.00

(c)
I gave 2nd accused (Jimoh Sule) N2,000.00; N13,000.00

(d)
Various sums were alleged given to one accused person or person at various times and not in the presence of all the accused persons by 1st P.W.

(ii)
The appellant was not charged for criminal breach of trust, fraudulent falsification of accounts or fraudulent conversion.

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7.
The learned trial Judge erred in law to hold that the lst and 2nd prosecution witnesses were not accomplices.

PARTICULARS OF THE ERROR

(i)
The appellant and the other accused persons could be charged with the 1st and 2nd Prosecution Witnesses for conspiracy as contained in exhibit ‘A’.

(ii)
The Appellant and the other accused persons could be charged for receiving N563,000.00 as contained in Exhibit ‘A’ being stolen money.

(iii)
No corroborative evidence to support the evidence of 1st and 2nd Prosecution witnesses against the appellant (Joseph Adebayo).

8.
The sentences passed on the appellant are excessive.

9.
The decision is unreasonable unwarranted and cannot be supported having regards to the whole evidence before the court.

10.
That the whole trial is a nullity as the pleas of the appellants were not taken after the amendment of the charge when the prosecution withdrew against the 5th and 6th persons nor was the note of the amended (charge) recorded as stipulated by the provision of section 164(4) of the Criminal Procedure Act.

The learned counsel for the lst and 3rd appellants argued ground 1, his complaint as reproduced above is that since the 5th and 6th accused persons escaped from custody and were not tried with the appellants, the conviction of the appellants and the whole trial is a nullity. It was submitted that the non availability of the 5th and 6th accused persons at the trial offends section 33 (b), (c), (d), of the Constitution and had thereby rendered the whole trial a nullity. It is further submitted in this issue that there was a miscarriage of Justice. While it is true that some evidence incriminating the 5th and 6th accused were adduced, which shows that the 5th and 6th accused persons with all the appellants participated in collecting various sums of money from the 1st P.W. It cannot be correct, having regard to the other evidence believed by the trial court, to say that the evidence adduced against 5th and 6th appellant was solely relied upon by the trial Judge to convict the appellants.

The prosecution had withdrawn the information against the 5th and 6th accused and indeed the 5th and 6th accused persons were never before the trial court. It is not alleged that the charge was inadequate or misleading, and I cannot find any infraction with the provision of section 33 of the Constitution. The absence of 5th and 6th accused persons had not occasioned or caused any miscarriage of justice. So far as the appellants were concerned, the procedure adopted was regular. All the evidence adduced at the trial in so far as it affected the appellants, were admissible against them and would have been equally admissible against them if only their name alone had appeared in the charge. The ground of appeal is without any substance and is hereby rejected by me.

The next ground argued by counsel is ground 10 and the quarrel here is that, when the prosecution, at the beginning of the hearing of the case and after the plea of the appellants was taken, withdrew the charges against the 5th and 6th accused and thereafter the case proceeded without the appellants taking a fresh plea. It is submitted by learned counsel for the appellants, the withdrawal

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of the charges against the 5th and 6th accused persons amounted to amending the charges, and if no fresh plea was taken after the amendment, to the charges, the whole proceedings are rendered irregular and void. It is elementary law and I believe it is unnecessary to call upon the accused person or persons to make a fresh plea, and if no fresh plea is taken, the trial is rendered a nullity. But can one say that there is an “Amendment to charge’ in the instant case’ To put it in another way, could one say that withdrawal of the charges against the 5th and 6th accused persons does not and cannot amount to “an amendment of the charge” as stipulated under section 162-165 of the Criminal Procedural Law. As far as the appellants were concerned and affected, nothing was changed or altered in respect of the allegation they were each and individually called upon to answer. The appellants knew the offences for which they were charged and the withdrawal of the prosecution’s case against the two accused who were not before the court did not alter or affect the charge that laid against each of them and so a fresh plea was not necessary as provided for under section 164 of the Criminal Procedure Law of Bendel State, 1976.

In my view, the withdrawal of the charge against 5th and 6th accused persons did not constitute an “Amendment” which either changes the substances of the allegations against the appellants nor introduce a new charge to warrant the appellants to make a fresh plea. This ground also fails.

Next ground argued for the 1st and 3rd appellants is ground No.3. The complaint here is that the count for stealing is said to be bad for duplicity. It is submitted that acts complained of against the appellants were not on one transaction but that it was on series of transactions, sometimes involving one or more of the appellants. The evidence accepted by the learned trial Judge reveals that the taking of money from P.W.l look place at different locations and there were no less than 13 times of such transactions in various sums of money. It is conceded by the learned Counsel for the respondent that the charge of stealing as framed is bad for duplicity. With respect, I agree. The learned trial Judge was clearly in error when he held that the requirement of section 156 of the Criminal Procedure Act has been complied with and the decision in Queen vs. Edward Aniemeke and Anor., (1961) ALL N.L.R. 43. was wrongly applied by the Judge. In that case it was clearly held at page 44-

“It is clear that 53 separate misappropriations on 53 separate occasions were being alleged by the prosecution and these distinct offence should have formed the subject of separate counts in accordance with Section 156 and 339 of the Criminal Procedure Code. Unless there is some express provision of law authorising a departure from the rule.”

The court in that case examined the Provision of Section 152(2) of C.P.C and held it did not apply to the offence of stealing. See also Ogbozor v. Inspector General of Police (1964) ALL N.L.R.9; Domingo v. The Queen (1961) ALL N.L.R. 81.

There should have been framed against all the appellants or some of them thirteen separate charges or counts of stealing, which would have afforded one or some of the appellants to put in some separate defence. This ground, in my view is sound and since it is also a ground of appeal for the 2nd and 4th appellants, i should at this juncture hold and I do hold, that the conviction of all the appellants for the offence of stealing as framed in the charge cannot stand. It is bad for

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duplicity. It cannot be cured by the provisions of Section 152 (2) of the C.P.A. The appellants were never charged with fraudulent appropriation of money or property for which the sub-section is designed to deal with; see the Aniemeke case supra.

The next complaint of the lst and 3rd appellants is on the question of hardship occasioned by joining the counts of conspiracy to the counts of obtaining by false pretences and that of stealing, the same subject matter on the same facts. This ground is also similar to grounds 5 argued for the 2nd and 4th appellants. It is submitted by counsel that there was no independent evidence to prove the offence of conspiracy and further to that, the court acted on and used the evidence that P.W.l and P.W.2 at one time or the other gave money to the 5th and 6th Accused who were not tried with the appellants to find them guilty of conspiracy. In my view, the convictions of the appellants were not based on the allegations made against the 5th and 6th accused persons, the learned trial Judge found conspiracy proved for he held in his judgment as follows: –

“In the present case, the defence of the persons is not as to confusion (sic) in their defence of the charges brought against them but that they had no knowledge of either the prosecution witnesses or each other. The money alleged by the prosecution witnesses to have been delivered by them was at one stage or the other handed over to one of the men with the other accused persons present. In some cases, one or the other of them who had to the present. In some cases, one or the other of them who had to the knowledge of the prosecution witnesses intimacy with the acknowledge of the prosecution witnesses intimacy with the acknowledge of the prosecution witnesses intimacy with the accused persons came to collect alleging that he had been sent by the lst accused who was referred to as Chairman. The evidence of prosecution witnesses very establish a meeting of the mind of all the accused persons and a dear knowledge by one of the intention of the other. I accept the evidence of P.W.l and P.W.2 as stated and held that conspiracy between the accused persons has been established.”

Now conspiracy is an agreement by two or more persons to commit an offence. It is an offence on its own and may form the subject of a charge which may be joined with a charge for the substantive offence. But like every charge, the prosecution must prove that there was indeed a meeting of the minds of those, concerned. It has been held in Fayemi v. A.-G. (1966) All N.L.R. 186 that an accused person cannot be convicted of conspiracy to N.L.R. 186 that an accused person cannot be convicted of conspiracy to commit an offence on the strength of his own confession unless there is an independent evidence that at least one other person has conspired with him.

Generally conspiracy can be formed in one of the following ways:-

(a)
The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.

(b)
There may be one person who is the hub around whom the others revolve, like the centre of a circle and the circumference.

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(c)
A person may communicate with A and A and B, who in turn communicates with another and so on. This is what is called the chain of conspiracy.

And in order to establish conspiracy, it is not necessary that the conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. As Hewart L.C.J. observed in R. v. Meyrick and Anor. (1929) 21, C.A.R.

“it is not necessary to prove that the conspirators, like those who murdered Julius Caeser, were seen together coming out of the same place at the same time and indeed conspirators need not to know each other.”

See Oyediran vs. Repulic (1967) N.M.L.R. 122. In the case of Mumini vs. The State (1975) 6 S.C. 79 at 92-93. Irikefe, J.S.C. as he then was observed: – “we observed that conspiracy as a crime is complete upon agreement, and it is not necessary, in order to complete the offence that any one thing should be done beyond the agreement. See R. vs. Aspinail 2 QBD (876-77) Page 45 at pp. 58-59.

Also, once a conspiracy has come into existence, other conspirators may join in it at a latter stage – See R vs. Morphy 173 E.R. page 505. Moreover, anyone of the conspirators may not know the other parties, but only that there are other parties and anyone may not know the full extent of the scheme to which he attached himself. See R. vs. Griffitin 49 CAR page 279.”

Having regard to the evidence adduced before the trial Court, I cannot say that the inclusion of the charge for the offence of conspiracy worked hardship or occasioned any miscarriage of justice on any of the appellants or loaded the dice any more heavily against any particular one of them.

It has been submitted that there was no independent evidence to prove the conspiracy and that it was the evidence of the other charges that the learned trial Judge relied upon to convict the appellants. In Daboh vs. The State (1977) 5聽S.C. 197 at 221- 224, Sir Udo Udoma, J.S.C. said thus:

“As was stated by Bruce J, in Rex vs. Plumber (1902) 2 KB at 348, “The external or overt act of the crime in concert, by which mutual consent to a common purpose is exchanged”

Although we respectfully agree with propositions of the law by these authorities, we are of the view that in the circumstances of the case on appeal, it would be extremely difficult to sustain learned Counsel’s contention, that the prosecution had failed to establish conspiracy merely because there was no positive evidence of any agreement between the first and the second appellants to commit the offence, the subject of the charge of conspiracy.

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx In R. v. Briscas 4 East 164, 171 which was cited with approval by the House of Lords in England in Mulcahy vs. R.L.R. 3 H. 306, 317, it was laid down as a matter of law, that in Criminal Practice, Proof of the existence of conspiracy is generally a “matter of inference deduced from certain Criminal Act of the parties concerned, done in pursuance of an apparent Criminal purpose in common between them.” It is well recognised in law, that conspiracy may exist between persons who have never seen

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each other or corresponded with each other. R. vs. Parnell 14 Cox 508 at page 515. Indeed in order to convict for conspiracy, it is not necessary’ that the accused persons concerned should have concocted the scheme, the subject of the charge, nor that they have originated it. If a conspiracy is formed and a person joins it after- wards, he is equally guilty with the original conspirators. See R. v. Simmonds (1969) 1 GB 685.”

As pointed out earlier, the offence of conspiracy is complete immediately two or more persons agree to do an unlawful act and if at a later time or times other people came to join in the purpose, they would be equally guilty.

In the instant case the evidence believed by the trial Judge was that on the 15th of March, 1983 two men, the 4th appellant and Godwin Anebor came to P.W.l and told her that they had imported rice to sell to her. Applying the principles stated above, it is reasonable and sage to conclude that the 4th Appellant and Godwin Anebor had agreed to deceive and defraud P.W.l by pretending that they were rice merchants which they were not.

At later times, all the appellants in turn took part in the deception and fraudulently and unlawfully collected at various places huge sums of money for their common purpose. They all become equally guilty. From all the circumstances of the case, I am of the view, it is reasonable and safe to infer as the learned trial Judge did. It is not necessary as argued for the Appellants, that conspiracy must be proved by independent evidence. It is the over act or omission which evidences it, conspiracy is the Actus reus and the Actus reus of each and every conspirator must be referred and very often is the only proof of the Criminal agreement which is called conspiracy. See also Onochie vs. Republic (1966) 1 All N.L.R. 86. According, the complaint that the evidence adduced against the 5th and 6th accused persons may be used against all the appellants to establish a case of conspiracy is invalid. Indeed, conspiracy may be committed with persons known and named as well as persons unknown Queen v. Esege (1962) 1 All N.L.R. 110

So these grounds of appeal are without any merit, but before I part with them, there is another matter which I consider important. The unlawful act complained in the charge was that of stealing. I had earlier in this judgment held that the charge of stealing is bad for duplicity. The question now arises, can the Court allow to conviction on a charge of conspiracy when the conviction on the substantive offence is quashed’ In Nnaji and Others v. Inspector General of Police (1957) 2 F.S.C. 18-19, the Federal Supreme Court held that an accused cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence concerned. At page 19 of the report Jibowu of F.C.J. said thus:-

“It seems to us that this case is on all fours with R v. Cooper and Crompton (1947) 2 All E.R. 701 in which the two accused were charged with conspiring to steal on Count 1, and with stealing four other Counts. They were found not guilty on the Counts of stealing but were convicted on the conspiracy count. It was held by the Court of Appeal in quashing their convictions that since the jury had found the Prisoners not guilty of doing the things which they were charged conspiring to do, their verdict that they were

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guilty of conspiring as a specific offence under the first count was unreasonable.”

But where there is evidence in support of the charge, an accused may yet be convicted of conspiracy to commit an offence even though the charge for the substantive offence fails not for want of evidence but on a technical ground as for example as in the case, where the charge is bad for duplicity. See Ogbebor v. Inspector-General of Police (1964) 1 All N.L.R. 9. In that case, the English case of Cooper was distinguished. And the conviction of conspiracy was allowed to stand even though the conviction for stealing upon which the conspiracy count was based, was quashed. I will in this judgment follow the decision in the Ogbebor case and hold that the conviction for the offence of conspiracy to steal is valid even though the conviction for stealing cannot stand on the technical ground of duplicity. The appellant knew they had no provisions to sell to P.W.l and they plotted and schemed and agreed to defraud P.W.l of huge sums of money. As I said above the grounds of appeal of ail the appeal of all the appellants concerning:-

(1)
that the inclusion of a charge of conspiracy had caused hardship on them.

(2)
that no proof of the charge of conspiracy, and

(3)
that the use of the evidence adduced against 5th and 6th accused was wrong, are without substance and misconceived and arc rejected by me.

The next ground argued for the 1st and 3rd appellants, is ground No.5. On it was submitted that the trial Judge was wrong to convict the appellants on Counts of obtaining by false pretences and of stealing the same subject matter. In view of my earlier decision with reference to the count of stealing and the concession made by the learned Counsel for the respondent. I do not deem it necessary to deal with this aspect all over again. Sec Runsewe v. Commissioner of Police (1968) N.M.L.R. 112.

In his brief of argument, the learned Counsel for the lst and 3rd appellants argued ground 2 which is similar to ground 1 of both 2nd and the 4th appellants. In these grounds, the appellants complaints are that the learned trial Judge had committed serious error of procedure by not specifying in his judgment his findings separately on each of the three counts. It is contended that in this case the learned trial Judge to simply say as he wrote at page 83 of the record thus –

“I find all the counts against the four accused persons proved and they are guilty as charge,” was insufficient and wrong.”

I have carefully read the judgment and I am satisfied that the learned trial Judge had adequately considered the case of each of the appellant separately and extensively dealt with their defences, which as a denial of the knowledge of any of the transactions with the lst and 2ndPWS and even a denial of the knowledge of each other. The learned trial Judge in each case disbelieved each of the appellants and found them guilty. See for example page 68 of the record, where the appellants were found guilty of the offence of conspiracy. It is my view even if there is irregularity in the way the learned trial Judge pronounced the appellants guilty as charged, an irregularity of such nature cannot vitiate the convictions as in my view, there has been no miscarriage of justice. See Oyediran v. The Republic (1967) N.M.L.R. 122.

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For the 1st appellant, ground 3 complains of the learned trial Judge’s comment on the refusal of the appellant to make statement to the Police. The lst appellant decides to reserve his statement when confronted with his offences by the Police. Whilst it is not binding on an accused to make any statement to the police as it is the duty of the prosecution to prove the guilt of the accused, a Judge may be entitled to draw any reasonable inference in certain circumstances, provided always, care must be taken to ensure that it was the duty of the prosecution to prove all the allegations. In this case, the lst appellant not only denied all knowledge of the transactions between himself and P.W.l and P.W.2, he also denied ever knowing any of or all the other appellants and the 5th and 6th accused persons. Why could not he say so at the earliest opportunity’ Even if such a comment is disregarded, in my view, there is abundant evidence that connects the lst appellant with the allegations which evidence the learned trial Judge believed and acted upon.

For the 1st and 3rd appellants, under ground 7, it is submitted that the sentence of 7 years for the second count, that is, for obtaining by false pretences is excessive. There are no reasons given or submissions made in the brief for the alteration of the sentence which is clearly not illegal. In view of the particular facts of this case, I cannot see any justification for interfering with the sentences passed in this case which I do not regard as being excessive.

Lastly, for the 1st and 3rd appellants, it was argued that the decision of the trial Court was unreasonable and unwarranted. This ground can be conveniently considered with the grounds 4,7,8 and 9 which deal with findings of fact made by the teamed trial Judge. It is elementary law that an appeal Court will only interfere with the findings of fact made by a trial Court where the finding is perverse or cannot be justified or supported having regard to the evidence adduced. The learned trial Judge had in my view adequately and properly dealt with all the issues raised before him. He believed the evidence of P.W.l and P. W.2 and disbelieved the deferred of the appellants when they denied taking part in the transactions and also denied knowing one another. The learned Judge had the opportunity to watch the prosecution witnesses and the appellants while testifying before him and in his judgment, he dealt exhaustively with the facts laid before him. He thereafter reach the decision according to the evidence he accepted. So these grounds of appeal totally lack substance. They deserve to fail and are accordingly rejected by me.

There now remains ground 2 of the 2nd and 4th appellants. The grounds are identical and they read:-

“2.
The learned trial Judge misdirected himself in law to hold that the representation to support Court 2 that is the charge of obtaining money by false pretences “was made by words and conduct of a fact passed and present.” The misdirection has grossly affected the mind of the Court in coming to a wrong decision.”

PARTICULARS OF MISDIRECTION

(i)
The totality of the evidence of P.W.l was that the accused persons have a company called “PRESSES” whose office she knew and that the accused promised that they would supply her with rice and other commodities at a future date.

(ii)
P.W. 1, the complainant testified thus”.

they asked the money for rice, stockfish and milk. They told me once to produce N60,000.00, they would give N130,000.00.”

聽 (iii)聽 聽 聽 聽 聽P.W.3 testified thus ” ……… I asked how far they had gone with

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the rice they ordered, he said he was almost through but needed just N60,000.00 to get the rice “

In the briefs of argument, learned Counsel for the 2nd and 4th appellants submits that on the facts, –

(1)
It is not clear whether the inducement to part with the money was for the supply of rice and other commodities or it was for the purposes of money doubling, and

(2)
Since the representation was for the supply of rice in the future, a charge of obtaining by false pretence cannot succeed.

In my view, the evidence clearly reveals, that the appellants on knowing that the complainant P.W.l was dealing in rice and other commodities, came to her one or two at a time and at other times she went and met them all together and they told her that they had the commodities for sale. She testified thus at page 18:-

“…. On one of these days in March, I brought a bag of rice into my shop 4th Accused asked if I was a rice seller. I answered that I sometimes buy plenty of hags of rice from the Investment (Company) and resell to Ibo traders. Before the 15th of March. 1983 or there about, the two men 4th Accused and Godwin Anebor came to my shop to say they have a rice Company. On the 15th of March, 1983,1 came to meet Segun in my shop, he told their rice has come, that I should bring money.”

Further down, P.W.l further stated that the amount of rice allocated her was for N50,000.00. That was on the 23rd March, 1983. It was only when rice was not forthcoming that after she confronted the first appellant, the 1st appellant offered unsolicited to do the money doubling for her. And there is no evidence that she agreed to the money doubling proposal. In my view, the purposes for the handing over of the money was for the supply of provisions which the appellants said they had for sale. If the crime of money doubling is revealed by the evidence, it is an aside and is as such not relevant to these proceedings. It is sufficient for me to say that such matter is best left to the law enforcement agencies. On the whole. I am satisfied that the demands for money by the appellants were for the supply of rice and provisions and the representation was that they were in a position to supply the said rice and provisions to P.W.l which they knew was totally false.

On the last limb of the complaint on which the cases of Pius Achora vs. Inspector General of Police (1958) 3 F.S.C. 30 and Adeyemi vs. Commissioner of Police (1961) ALL N.L.R. 387, are cited as authority for the proposition, with respect, I do not share the view that they are applicable to the facts of this case. In the Achora case, the charge clearly states, that the appellants would do an act in the future. The charge in the instant case dearly was not that the appellants would do anything at a later date, and in her evidence which was accepted by the trial Court, P.W.l said she was told that some quantities of rice were allocated to her and that she acted on that and other similar fraudulent representations and parted with her money. Surely, the representations that they were dealers in rice and that they had ordered; received, and had rice in large quantities in their possession cannot in my view be a representation as to a future act, for they are representations of past culminating in the present acts. So, these grounds also fail.

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Part of ground 4 for the 2nd and 4th appellants which was not dealt with by Counsel complains about the need for corroboration of the evidence of P.W. 1 and P.W.2. The learned Counsel for the appellants submits that from the facts. P.W.l and P.W.2 were of necessity accomplices and there was a danger in accepting their evidence without corroboration. With the greatest respect to Counsel, I cannot find the evidence which makes the witnesses participes Criminis. They cannot put be regarded and described as stupid victims who were manipulated and deceived by experts in the game of conmanship. Their actions and conduct were no doubt not only idiotic but also reckless and careless. Such actions and conduct dearly do not portray criminal intent on their part. The fact that they have been facing a criminal charge for long cannot be relevant to the independent fraudulent acts of the appellants where they are criminal in their nature and content. The complaint is without merit.

In the final analysis, the convictions and sentences on all the appellants on court III are hereby set aside. The appellants are accordingly discharged and acquitted on the count. The convictions and sentences of the appellants in respect of Counts 1 and 2 are hereby affirmed and their appeals as they related to those counts are hereby dismissed.

EBOH, J.C.A.: I have had the privilege of reading, in draft, the judgment just delivered by my brother Musdapher, J.C.A. in which he dealt exhaustively with the points of law raised in the grounds of appeal as argued before this court.
I agree completely with the reasoning adopted by him in considering the issues to be decided in the appeal and I have nothing to add.

I fully concur in the conclusions he reached after such a careful consideration of the grounds of appeal filed on behalf of each of the appellants concerned.

I too therefore will and do hereby allow the appeal against the conviction on the count of stealing while the appeals against the convictions on the other counts are hereby dismissed as lacking both substance and merit.

AJOSE-ADEOGUN, J.C.A.: Having had the opportunity to read in advance the judgment just delivered by my learned brother, Dahiru Musdapher, J.C.A. I can now say that I entirely agree with the reasonings and the conclusions contained therein. Considering the exhaustive manner in which His Lordship has dealt with the facts and the applicable principles of law raised in this appeal, there is nothing else I can usefully add to the lead judgment.

In the light of the above, I too will set aside the convictions and sentences of all the appellants on Count III and discharge and acquit them on same. But the appeal of each and everyone of them is dismissed in respect of counts I and II of the joint charge against them. In particular, the sentences imposed by the trial court are, in my view, not so manifestly excessive to warrant their downward review by this court. Consequently, the convictions and sentences of all the four appellants herein on those two Counts (1 and II) are hereby also affirmed by me.

Appeal Upheld in Part and

Dismissed in Part

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