AKEEM v. FEDERAL REPUBLIC OF NIGERIA (2018)

In The Court of Appeal of Nigeria

On Thursday, the 8th day of March, 2018

CA/MK/214C/2016

Before Their Lordships

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria


Between

ENGR. BUSARI AKEEM Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

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JOSEPH EYO EKANEM, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Benue State, holden at Makurdi (the trial Court) coram A. O. Onum, J. in case No. MHC/85C/2013 delivered on 7/10/2016. In the judgment the trial Court found the appellant, along with a co-accused person, guilty of the offence of conspiracy to obtain money by false pretence with intent to defraud contrary to Section 8(a) and punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. Even though it is not disclosed in the judgment of the trial Court at pages 551 to 564 of the record of appeal, it is stated in the notice of appeal against the judgment that he was sentenced to 7 years imprisonment without option of fine for the offence.Some of the facts leading to this appeal as given in evidence by the prosecution are that the appellant is the Chief Executive Officer/Managing Director of Hakkim-B Universal Ventures Limited (the company for short), a limited liability company incorporated as such. The company was awarded a contract on 16/5/2007 by the Federal Ministry of Agriculture and Water Resources (the ministry for short) for the construction of a motorized borehole to be sited at Ipole-Otukpa, Benue State, at the contract-value of N16,412,988.65. I.I. Nwankwo and Partners/Jeeztec were the consultants appointed by the ministry and 2nd accused was the partners project manager. The company was paid the sum of N13,468,410.67 as advance payment.
The appellant and the company mobilised to the site. By November, 2008, the Ministry received a certificate of job completion forwarded by the consultant and signed by the 2nd accused person. The company also wrote for payment on the certificate with the letter signed by the appellant. It turned out that the contract work had not been done at the designated location.
The appellant, Engr. Ogbonna Irenaeus (the project manager) and the company were consequently charged before the trial Court as 1st accused person, 2nd accused person and 3rd accused person, respectively, on a four-count charge of;
(i) conspiracy to obtain money by false pretence.
(ii) Obtaining N13,468,410.67 by false pretence with intent to defraud contrary to Section 
1(1) (a) and (b) and punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act of 2006;
(iii) Obtaining N6,672,168.10 by false pretence with intent to defraud contrary to Section 8(a) and punishable under Section 1(3) of the above Act; and
(iv) Attempt to induce, with intent to defraud, delivery of N6,672,168.10.

On his part, the appellant led evidence to the effect that all genuine efforts made by 3rd accused person to drill a bore-hole at Ipole-Otukpa failed as it proved impossible to strike water there. The 3rd accused wrote for approval for a change of the project site to Obu-1 Otukpa, within the same geographical location with Ipole-Otukpa. This was granted by the consultant with the knowledge of the Federal Ministry. The drilling at Obu-1 was initially successful and they wrote a completion report to the Ministry via the consultant to enable them request for payment. The ministry issued them with a discharge letter to facilitate their access to their money in the bank. Upon receipt of the funds, they moved back to the site to carry out other components of the contract only to discover that the [water] yield had dropped drastically below the acceptable minimum.
On the instruction of the consultant (2nd accused person), the company rehabilitated a borehole at Ublegi-Otukpa and installed submersible pump and pipes there. The company also renovated an old power generator building and installed a new PEKIN generator there at the cost of N1.9m; it also rehabilitated an old water tank in Ublegi-Otukpa.
The trial Court, as earlier stated, found in favour of the respondent and convicted the appellant for

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conspiracy.
Aggrieved by the judgment, the appellant has appealed to this Court by way of a notice of appeal bearing six grounds of appeal.
Pursuant to the rules of this Court, appellant filed his brief of argument (settled by Chris O. Alechenu, Esq.) on 14/3/2017 and a reply brief (settled by S.O. Okpale, Esq) on 16/5/2017.
Respondents brief, settled by Sir Steve EhiOdiase, was filed on 26/4/2017.
At the hearing of the appeal on 17/1/2018, C.O. Alechenu, Esq. for the appellant, adopted and relied on the briefs of argument filed on behalf of the appellant in urging the Court to allow the appeal and set aside the judgment of the trial Court.
Sir Steve Odiasefor the respondent adopted and relied on respondents brief of argument in urging the Court to dismiss the appeal and order the appellant to return to prison.
In the appellants brief of argument, the following issues are formulated for the determination of the appeal:
1. Whether the lower Court had the territorial jurisdiction to have tried and convicted the appellant for the offence of conspiracy under count 1 of the charge in the circumstances of this case.
2. Whether the trial and conviction of the appellant was not a nullity having regards to the fact that appellant was tried and held criminally liable for the acts and deeds of HAKKAM-B UNIVERSAL VENTURES (NIG) LTD which is a corporate entity when the corporate veil was never lifted by the lower Court before proceeding against the appellant who merely acted for and on its behalf as its Chief Executive/Managing Director throughout the transaction leading up to the trial and conviction of the appellant.
3. Whether having regards to the evidence adduced at the trial of the case the prosecution discharged the burden of proving its case against 
the appellant beyond reasonable doubt as required by law.
4. Whether the learned trial judge was right in convicting the appellant based on Exhibits E4 and E5 respectively.
5. Whether the verdict arrived at in this case by the lower Court can stand having regard to the evidence.

Respondents counsel adopted the five issues formulated by appellants counsel. I will therefore be guided by them in the determination of the appeal. I intend to treat the issues serially but with issues 3, 4 and 5 taken togather.
ISSUE 1 – Whether the lower Court had the territorial jurisdiction to have tried and convicted the appellant for the offence of conspiracy under count 1 of the charge in the circumstances of this case.
Appellants counsel referred to count 1 of the charge and stated that from the evidence adduced, it was not established that the ingredients of the offence occurred within Benue State to warrant the trial judge assuming jurisdiction to try the offence. He contended that the trial and conviction of the appellant were based on Exhibits E4 and E5 (certificate of job completion and demand for final payment) as confirmed by the trial judge. He pointed out that the said exhibits were not issued and presented in Benue State and that the trial Court held that the documents were not admissible as evidence in proof of any act specifically alleged to have been done at Ipole-Otukpa, Benue State. He referred to the evidence of 2nd accused (DW3) that he did not visit the contract site at Ipole-Otukpa before making Exhibit E4 and submitted that the documents (Exhibits E4 and E5) were issued and presented at Abuja.
Counsel submitted that the trial Court had no territorial jurisdiction to entertain count 1. In support

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of his submission counsel cited and relied on several cases including Patil V FRN (2015) All FWLR (Pt. 775) 228, Dariye V FRN (2015) 10 NWLR (Pt. 1467) 325 and Ibori V FRN (2009) All FWLR (Pt. 487) 157. Counsel was of the view that the trial Courts reliance on Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 to assume jurisdiction was in error as the provision relates to subject matter jurisdiction and not territorial jurisdiction.
Counsel for the respondent stated that the trial and conviction of the appellant were based on Exhibits E4 and E5 which he noted related to the project at Ipole-Otukpa, Benue State. He referred to Section 4(2)(b) of the Penal Code Act and submitted that by entry into Benue State and the fact that the project is sited thereat, the appellant was liable to be tried therein. He emphasized that the phrase element in Section 4(2)(b) of the Penal Code Act is more widely conceived and should not be limited to either the actus reus or the mens rea in conventional criminal jurisprudence.
In his reply, appellants counsel submitted that respondents counsel was wrong when it pulled in Section 4(2)(b) of the Penal Code in arguing in favour of the trial Courts jurisdiction as the appellant was not tried for infraction of any section of the Penal Code. He stressed that the lower Court did not consider any provision of the Penal Code in reaching its conclusion and further submitted that the respondent was in essence, contending that the decision of the trial Court on jurisdiction should be affirmed on grounds other than Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, relied upon by the trial Court. He noted that no respondents notice was filed and so respondents attempt was highly flawed.
Jurisdiction has been characterized as the life-wire of litigation and has been defined as the authority which a Court has to decide matters before it or to take cognizance of matters presented before it for decision. Where a Court entertains a matter over which it has no jurisdiction, the whole proceedings including its judgment are a nullity no matter how well conducted. See Ndaeyo V Ogunaya (1977) 1SC 11, Attorney-General of Lagos State V Dosunmu (1989) 3 NWLR (Pt. 111) 552 and Miscellaneous Offences Tribunal V Okoroafor (2001) 18 NWLR (Pt. 745) 295.
In the oft-cited case of Madukolu V Nkemdilim (1962) 2 SCNLR 341, it was held that a Court has the competence to exercise jurisdiction in a cause or matter if;
(a) it is properly constituted with respect to the number and qualification of its membership;
(b) the subject matter of the action is within its jurisdiction
(c) the action is initiated by due process of law; and
(d) any condition precedent to the exercise of its jurisdiction has been fulfilled.

Appellants counsels attack is in respect of the territorial jurisdiction of the trial Court. Territorial jurisdiction of a Court refers to a geographical area within which the authority of the Court may be exercised and outside which the Court has no power. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating it. Courts are usually not seized of matters that occur outside their territories. Furthermore, criminal jurisdiction in Nigeria is mainly territorial. See Ibori V FRN (2009) 3 NWLR (Pt. 1128) 283, Dariye V FRN(2015) 10 NWLR (Pt. 1467) 325, Roda V FRN (2015) 10 NWLR (Pt. 1468) 427 and Patil V FRN (2015) All FWLR (Pt. 775) 228.
To determine the jurisdiction of a trial Court in a criminal cause or matter recourse must be had to the charge. Where the objection is raised formally by a motion on notice supported by affidavit, the

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affidavit evidence by both parties is to be considered as well as the charge. Where evidence has been led, any relevant evidence may also be referred to. See Roda V FRN supra 472, and Egunjobi V FRN (2013) 3 NWLR (Pt. 1342) 534, 551.
Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act provides that
The Federal High Court, or the High Court of Federal Capital Territory and the High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.
I agree with appellants counsel that the provision above does not vest territorial jurisdiction in any of the Courts mentioned therein. Rather it vests subject matter jurisdiction in those Courts. See Ibori V FRNsupra where this Court interpreted Section 19(1) of the Money Laundering (Prohibition) Act, Cap. M18, Laws of the Federation of Nigeria, 2004 which is in substantially the same terms as Section 14 of the Advanced Fee Fraud and Other Fraud Related Offences Act. This Court held that the provision does not subtract from the provisions of the Federal High Court Act dealing with geographical jurisdiction of the various Divisions of the Federal High Court.
Counsel for the respondent sought recourse to Section 4(2)(b) of the Penal Code Act in supporting the decision of the trial Court in regard to its territorial jurisdiction. Appellants counsel resisted the recourse on the ground that the respondent did not file respondents notice to affirm the decision of the trial Court on grounds other than those relied upon by that Court as prescribed in Order 9 Rule 2 of the Court of Appeal Rule, 2016.
The trial Court did not make any reference to Section 4(2) of the Penal Code. That notwithstanding this Court is entitled to take judicial notice of Section 4(2) of the Penal Code Law Cap. 124, Laws of Benue State by virtue of Section 122 (2)(a) of the Evidence Act, 2011 and therefore apply it in determining the issue. Furthermore, Order 9 Rule 6 of the Court of Appeal Rules, 2016 provides in part that omission to file respondents notice shall not diminish any powers of this Court. Thus the omission by respondent to give respondents notice in this instance does not diminish the power of this Court to take judicial notice of and act on Section 4(2) of the Penal Code Law. The appellant had opportunity to offer arguments on the provision and in deed offered arguments thereon.
In Edilcon (Nig) Limited V United Bank for Africa Plc (2017) 18 NWLR (Pt. 1596) 74, 95-96, the Supreme Court in responding to a similar contention stated, per Galinje, JSC that
Even though a respondent in appeal who wishes to contend that the decision of the Court should be affirmed on grounds other than those relied upon by the trial Court could do so by way of a respondents notice, the lower Court by its rules is not excluded from affirming or varying a decision of a trial Court on grounds other than those relied upon by the trial Court, provided that the decision is taken on the basis of evidence before the trial Court.
By the combined effect of Sections 270(1) and 272(1) of the Constitution of Nigeria 1999, as amended, the criminal jurisdiction of the High Court of Benue State is limited to offences that occurred within the territory of Benue State. Where an offence occurs outside the territory of Benue State, that Court has no jurisdiction. In matters of jurisdiction, each state is sovereign and independent of the others. Section 12(d) of the High Court Laws of Benue State recognizes this limitation by providing that Subject to the provisions of the Constitution and in particular to such of them as are reproduced in Sections 15 and 16 hereof the jurisdiction vested in the Court shall include:
(a) ..
(b) .

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(c)
(d) all criminal jurisdiction which at the commencement of this Law was, or at any time afterwards may be exercisable within the State for the repression or punishment of crimes or offences or for the maintenance of order.
Section 4(1)&(2) of the Penal Code Law provides
(1) Where by the provisions of any law of the State the doing of any act or the making of any omission is made an offence, those provisions shall apply to every person who is in the State at the time of his doing the act or making the omission.
(2) Where any such offence comprises several elements and any acts, omissions or events occur which, if they all occurred in the State would constitute an offence, and any such acts, omissions or events, which if they occurred in the State would be elements of the offence, occur elsewhere than in Northern Nigeria then:
(a) If the act or omission, which in the case of an offence committed wholly in the State would be the initial element of the offence, occurs in the State, the person who does that act or makes 
that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in the State.
(b) If the act or omission occurs elsewhere than in the State and the person who does the act or makes the omission afterwards enters the State, he is by that entry guilty of an offence of the same kind and is liable to the same punishment, as if that act or omission had occurred and has been in the State and he had been in the State when it occurred.

It was appellants counsels argument that the appellant was not tried or convicted based on the infraction of any penal section of the Penal Code. The short answer to that is to be found in Richardsons Notes on the Penal Code Law 4th ed (1987) page 27 where the author states that
The section appears to be of general application and is not limited to offences against the provisions of the Penal Code.
The appellant as earlier stated was charged for conspiracy in the following terms:
That you Engr. Busari Akeem M being the Chief Executive Officer Managing Director, HAKKIM-B UNIVERSAL VENTURES LIMITED and Engr. Ogbonna Irenaeus M, being the Project Manager, Federal Rural Water Supply Programme under 2006 Appropriation Act, sometimes between 2007 to 2012 at Ipole Otukpa, Ogbadibo Local Government Area of Benue State within the Judicial Division of the High Court of Benue State, with intent to defraud, conspired among yourselves to obtain money by false pretence from the Ministry of Water Resources for the construction of Motorized Borehole Project and thereby committed an offence contrary to Section 8 (a) and Punishable under Section 1 (3) of the Advance Fee Fraud and other Fraud Related Offences Act No. 14 of 2006.
Going by the charge alone, the trial Court had jurisdiction to try the offence.
The trial Court held that the conspiracy resided in the issuance and presentation of Exhibits E4 and E5 to the Ministry (see page 561 of the record of appeal). Exhibit E4 is the letter of I.I. Nwankwo & Partners/Jeezec Ltd.(J/v)s letter of November, 2008, stating that the contractor/3rd accused person had completed its job up to 100%. The office addresses on the letter are at Abuja and Enugu. Exhibit E5 is the contractor/3rd accused persons letter signed by the appellant dated 28/10/2010 asking for payment of N6,672,168.10 for the work which is said to have been completed. It was addressed to The Permanent Secretary, Federal Ministry of Water Resources, Area 1-Garki, Abuja. The address of the author is Ota, Shomolu, Lagos. Thus the letters appear to have been issued and presented outside Benue State.
The alleged conspiracy was in relation to the work at Ipole-Otukpa, Benue State and the act or omission forming part of the said conspiracy was that the contractor/3rd accused person failed to complete the work at Ipole but its Chief Executive Officer conspired with the 2nd accused, the consultant, to seek to obtain the sum of N6.6 M on the basis that the work had been completed. There was thus a nexus between the project at Ipole, Benue State and the conspiracy.

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In Njovens V State (1973) A.N.L.R 371, 392 Coker JSC in interpreting Section 4(2) of the Penal Code Law, stated as follows:
Admittedly Section 4(2) of the Penal Code Law is not easy to construe. The section is concerned with an offence that comprises several elements and identifies these elements with acts, omissions or events. It is clear therefore that the element in the section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The initial element to which reference is made in the section is the initial act or omission concerned and for the purpose of applying Section 4(2) it is necessary to look for that initial element. If (a) that initial act or omission occurs in the State even though the other elements do not, the person who does that initial act or omission is punishable by the State under the Penal Code on the other hand, if (b) that initial act or omission occurs outside the State, the other or others occurring within the State and the person who does that initial act or omission afterwards enters the State, he is by such entry triable by the State under the Penal Code.
Furthermore, the fact that the appellant was tried in Benue State shows that he entered Benue State at some point after the alleged conspiracy. This entry is further confirmed by the fact that after issuance and presentation of exhibits E4 and E5 the appellant went back to Ipole Benue State. The entry into Benue State after the alleged commission of the offence by itself gave jurisdiction to the trial Court. See Adeniyi v State (2001) 13 NWLR (Pt. 730) 375 and Mbah v State (2014) 10 NWLR (Pt.1415) 316, 351  352 where Ogunbiyi, JSC stated that, It is further relevant to note the provision of Section 4 (2)(b) of the Penal Code Act where the High Court of the Federal Capital Territory will have jurisdiction in situation where even if the act occurs elsewhere than in Northern Nigeria, provided the person accused enters the jurisdiction, he is automatically by such entry subject to trial by Court. 
I respectfully adopt the dictum in this matter.
I therefore resolve issue 1 against the appellant.
ISSUE 2
Whether the trial and conviction of the appellant was not a nullity having regards to the fact that appellant was tried and held criminally liable for the acts and deeds of HAKKAM-B 
UNIVERSAL VENTURES (NIG) LTD which is a corporate entity when the corporate veil was never lifted by the lower Court before proceeding against the appellant who merely acted for and on its behalf as its Chief Executive/Managing Director throughout the transaction leading up to the trial and conviction of the appellant.
Appellants counsel stated that it was not in doubt that the contract relevant to this matter was awarded to Hakkam  B Universal Ventures Ltd and not to the appellant in his personal or private capacity. He noted that the trial Court found that to be so. He submitted that in law an incorporated company has a separate and distinct legal personality from that of its shareholders and directors and as such its directors can not be held liable for the acts or misdeeds of the company. He noted that the trial Court found that the appellant only acted as the Chief Executive Officer/Managing Director of the company in the course of the transaction. Counsel argued that since an incorporated company can only act through its directors and managers, the act of the appellant for the company was the act of the latter. He particularly referred to exhibit E5.
He contended that since exhibit E5 was the act of the company, the conviction of the appellant thereon was wrong as the concept of vicarious liability was unknown to the Nigerian Criminal Justice System.

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Counsel conceded that there are deserving occasions when the law would allow lifting of the veil of a corporate entity to see those behind the veil. He stated one of such occasions to be fraud. He submitted that the company in this instance was not being used as a mask to perpetrate fraud. He argued that, assuming (without conceding) that it was established that the appellant used the company to perpetrate fraud, the law required that the veil of incorporation be lifted before appellant could be proceeded against. This, he lamented, was not done, thus rendering his conviction a nullity. He cited and relied on several cases including NDIC v Vibelko (Nig) Ltd (2006) All FWLR (Pt 336) 386, to support his position.
For the respondent, it was argued by her counsel that the assertion in the first paragraph of count one is that the appellant admitted being Chief Executive Officer/Managing Director of the company and so the corporate veil had been lifted and is no longer in dispute.
One of the consequences of the incorporation of a company is that it becomes a legal entity separate and different from its subscribers and directors. The consequence of recognizing the separate personality of a company is to draw a veil of incorporation over the company. One is therefore generally not entitled to go behind or lift the veil. However, since a statute will not be allowed to be used as an excuse to justify illegality or fraud, it is in in the quest to avoid the normal consequences of a statute which may result in grave injustice that the Courts as occasion demands have to look behind or pierce the veil of incorporation. This is also referred to as lifting the veil of incorporation which is the judicial act of imposing personal liability on otherwise immune corporate officers, directors or shareholders for the corporations wrongful act. See NDIC v Vibelko (Nig) Ltd(2006) All FWLR (Pt 336) 386, Alade v Alic (Nig) Ltd (2010) 19 NWLR (pt. 1226) 111 and Oyebanji v State (2015) 14 NWLR (Pt. 1479) 270.
Lifting of the veil becomes necessary where the canopy of legal entity is to be used to defeat public convenience, justify wrong or perpetrate a crime. Thus where fraud is committed by top officials of the company and such officials want their fraudulent activities to appear as acts of the company, the corporate veil will be lifted. See ACB Ltd v Apugo (1995) 6 NWLR (Pt 399) 90, 177, Public Finance Securities Ltd v Jafia (1998) 3 NWLR (Pt 543) 602, 612, Adeyemi v Lan Baker (Nig) Ltd (2000) 7 NWLR (Pt. 663) 33, 51, FDB Financial Services Ltd v Adesola (2002) 8 NWLR (Pt. 668) 170, 174, Alade v Alic (Nig) Ltd supra and Oyebanji v State supra.
In this instance, appellant is the Chief Executive Officer/Managing Director of Hakkim-B Universal Ventures Ltd. He was charged with conspiracy to obtain money by false pretence with intent to defraud. The contract in respect of which the charge arose was awarded to his company and he acted in the capacity stated above. Assuming, for the purpose of treating this issue, that it was proved that there was such a conspiracy that would be a proper case for the lifting of the corporate veil, vis-a-vis the appellant.
It was contended by appellants counsel that assuming (without conceding) that it was established that the appellant used the company to perpetrate fraud, the corporate veil ought to be lifted first before the appellant could be proceeded against and that this was not done by the trial Court.
Indeed, the trial Court did not make any pronouncement on the lifting of the veil of the company. However, still guided by my earlier assumption in the last but one paragraph, this would be an appropriate case for the lifting of the corporate veil. The fact that the trial Court did not expressly pronounce that it had lifted the veil of incorporation does not detract from the correctness of its decision. The concern of an appellate Court is more about whether a trial Court arrived at the right conclusion than whether the reason therefor was right. SeeUkpakara V Ebevube (1996) 40/41 LRCN 1481, 1497.

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I therefore resolve issue 2 against the appellant.
ISSUES 3, 4 and 5
3. Whether having regard to the evidence adduced at the trial of the case the prosecution discharged the burden of proving its case against the appellant beyond reasonable doubt as required by law.
4. Whether the learned trial judge was right in convicting the 
appellant based on Exhibits E4 and E5.
5. Whether the verdict arrived at in this case by the lower Court can stand having regard to the evidence.
Arguing his issue 3, appellants counsel submitted that in criminal proceedings, the burden of proof is on the prosecution to establish the guilt of the accused person beyond reasonable doubt. He stated that a scrutiny of count 1 showed that the ingredients of it were not proved. He pointed out that the offence was alleged to have been committed sometime between 2007 and 2012 at Ipole Otukpa, Ogbadibo Local Government Area, Benue State whereas exhibits E4 and E5, upon which the conviction was based, were made in November, 2008 and October, 2010, respectively. He stated that there was no evidence that the appellant and the 2nd accused met and/or agreed at Ipole to produce the documents. He underlined his submission that the prosecution must establish that the conspirators met somewhere to hatch the crime. Again, he noted that the trial Court held that those exhibits were not admissible in proof of any act that was alleged to have been done in Ipole Otukpa.
In respect of his issue 4, appellants counsel contended that appellants conviction was based upon materials not disclosed explicitly in count 1. He set out some portions of the judgment of the trial Court and stated that the following points stand out, namely;
(i) it was not stated in count 1 that the conspiracy was hatched for the purpose of demanding the specific sum of N6, 672, 168.10 being the final instalment (of the contract sum) when the contract had not been fully performed;
(ii) the alleged conspiracy was not stated to be in the acts of making and presentation of Exhibits E4 and E5; and
(iii) the alleged acts of conspiracy in Exhibits E4 and E5 were made in November, 2008 and October, 2010 and not sometime between 2007 and 2012 as stated in the charge.

The result he argued, is that the trial Court made a case for the prosecution distinct and different from the one brought in count 1, thus breaching appellants right to fair hearing.
In arguing his issue 5, appellants counsel, in the main, restated his arguments in respect of the previous issues. There is therefore no need to re-state the same.
In his response, counsel for the respondent submitted that the respondent did not need to show the exact point where there was agreement but that it (conspiracy) could be inferred from the circumstances of the case or the conduct of the conspirators. Counsel stated that appellant and 2nd accused with criminal intent requested for full payment of the contract sum under the pretext that the contract had been fully executed rather than inform the Federal Ministry that it was an old borehole that was rehabilitated by them.
The burden of proof in criminal matter is on the prosecution and the standard of proof is proof beyond reasonable doubt Section 135(1) and (2) of the Evidence Act, 2011. The appellant was charged with and convicted of the offence of conspiracy. Conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. The gist of the offence is the meeting of the minds of the conspirators. See Njovens v State supra.

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In Exhibit E4, the 2nd accused, wrote on the letter headed paper of I. I. Nwankwor & Partners/Jeezec Ltd (J/V) (the consultants appointed by the Ministry) to the Federal Ministry of Water Resources that the contractor has completed his job up to 100% and that the payment due to the contractor was N6, 672, 168.10. The letter is dated November, 2008. In Exhibit 5, the appellant wrote on the letter headed paper of the company requesting for payment on the contract awarded to our company at the above mentioned location to construct one motorized borehole, which we have completed and handed over to the beneficiary community. Appellant therefore demanded for the payment of the sum due as stated in the certificate (Exhibit E4)viz; N6, 672, 168.10.
The trial Court held at page 560 of the record of appeal that
The testimonies of the prosecution witnesses, particularly the PWs 1 and 2, to the effect that as at the time either of Exhibit E4 and E5 was written the contract work was still far from being completed therefore remains unassailable Indeed, the contract had not been so performed.
I have gone through the grounds of appeal in the notice of appeal. There is no ground of appeal which attacks this specific findings of fact and so it remain binding on the parties.
Again the trial court found as a fact that as at the time of the issuance of Exhibits E4 and E5, the appellant and 2nd accused person knew that the job had not been completed either at Ipole Otukpa or at the new or alternative site. See page 559 of the record of appeal. There is also no specific ground of appeal which attacks this finding of fact and so it is binding on the parties including the appellant.
The trial Court, based on the above and other pieces of evidence, held that there was a conspiracy between appellant and the 2nd accused person which resides in the issuance and presentation of Exhibits E4 and E5 to the Ministry when the 1st and 2nd accused persons knew or had every reason to know that the contract had not been performed to specification at the time. See page 561 of the record of appeal.
Conspiracy can hardly be proved by direct evidence and so it may be inferred from doing things towards a common goal where there is no direct evidence of an agreement between the accused persons. See Innocent v State (2013) LPELR 21200 (CA) and Njovens v State supra. 404.
The essence of Exhibit E4 written by the 2nd accused person was to mislead the Ministry into believing that the contract had been completed up to 100% and therefore induce the Ministry to pay the balance of N6, 672.168.10 to the 3rd accused. The essence of Exhibit E5 was also to get the Ministry to pay the money based on the certificate, Exhibit E4. In other words, the two signatories to the exhibits were working towards a common goal and so the trial Court rightly inferred conspiracy on their part. There need not be evidence that the appellant and 2nd accused person met or agreed at Abuja or acted in concert at Ipole Otukpa, Benue State or any other place to make the documents. See Njovens v State supra and Erim v State (1994( 15 NWLR (Pt.246) 523, 533.
Appellants counsel contended that the trial Court having held that Exhibits E4 and E5 were not admissible as evidence in proof of any act alleged to have been done at Ipole Otukpa, count 1 that charged conspiracy thereat was not proved. The statement of the trial Court which appellants counsel referred to is at page 563 of the record of appeal. It only relates to the Courts consideration of count 3 on attempt to defraud and not on conspiracy.
The contention of appellants counsel that whereas the charge (count 1) gives the date of offence as

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sometime between 2007 and 2012, exhibit E4 and E5 were written in November 2008 and 31/10/2012 holds no water. Section 201 of the Criminal Procedure Code provides that
The charge shall contain such particulars as to the time and place of the alleged offence and the person if any, against whom, or the thing, if any, in respect of which, it was committed as are reasonably sufficient to give the accused notice of the matter with which he is charged.
The dates of the two exhibits fall within the period alleged in count 1 and so the appellant was not misled as to the time of the offence. Again, it is the law that it is not compulsory for the prosecution to prove the precise date of an offence. See R V Eronini 14 WACA 366 and Awopejo v State (2001) 18 NWLR (Pt. 745) 430.
Appellants counsel did argue forcefully that the conviction of appellant was based on materials not disclosed explicitly in count 1, viz; that the conspiracy was as to the sum of N6,672.168.10. and that it lay in exhibits E4 and E5. Respondents counsel was silent on this point. In deed, the trial Court found that the conspiracy resided in those exhibits which relate to the final instalment of N6, 672. 168.10. The particulars as to the said documents and the amount of money are not stated in count 1. Nevertheless Section 205 of the Criminal Procedure Code provides that No error in stating either the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall, be regarded, at any stage of the case as material, unless the accused was in fact misled by such error or omission and it has caused a failure of justice.
Thus no error or omission in stating the particulars of an offence will be regarded as material unless the accused person was in fact misled by such error or omission and it has occasioned a miscarriage of justice. Where the error or omission is sufficient to mislead the accused person in his defence of the charge, such error or omission is material and would vitiate the trial. The burden is on an appellant who asserts that he has been misled to show how he was misled.
See Ogbomor v State (1985) 1 NWLR (Pt.2) 223, 234, Obakpolor v State (1991) 1 NWLR (Pt. 165) 113 and Kalu v FRN (2012) LPELR 987 (CA).
The appellant in his plea at page 155 of the record of appeal stated
I understand the various heads of the charge on the 1st head of the charge I am not guilty.
His counsel was present in Court on the date and did not object to the omission in count 1. Evidence was led by the prosecution touching on exhibits E4 and E5 and the sum of N6,672,168.10. Cross-examination of prosecution witnesses was conducted incisively and extensively by appellants counsel. Appellant testified as DW1 and there was no hint of his not knowing what he was standing trial for or that he was misled.
Furthermore, the count on conspiracy described a known offence, the law and sentence of it relating thereto and linked it to the contract in respect of which the appellant sought to obtain payment of N6,672,168.10. I therefore fail to see how the appellant was misled by the omission complained of nor do I see any failure of justice. See Omisade v. R (1964) NMLR 167 or (1964) 1 All NLR 233 Timothy v. FRN (2012) LPELR 9346 (SC).
In the light of what I have stated thus far on issues 3, 4, and 5, I resolve the same against the appellant.
On the whole I come to the conclusion that the appeal lacks merit and it therefore fails. I accordingly dismiss the same and affirm the judgment of the trial Court.
JUMMAI HANNATU SANKEY, J.C.A.: I was privileged to read in draft the lead judgment just delivered by my learned brother, Ekanem, J.C.A.
I agree with the reasoning and conclusion reached in dismissing the Appeal which, I agree, has

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no merit whatsoever.
I am also not in doubt that the prosecution discharged the burden of proof beyond reasonable doubt as required by law and as found by the trial Court.
It is therefore my judgment that this Appeal shall be and is hereby dismissed. The conviction and sentence passed on the Appellant by the trial Court, is affirmed.
ONYEKACHI AJA OTISI, J.C.A.: I had the benefit of reading in advance, a draft copy of the lead judgment in this appeal just delivered by my learned brother, Joseph E. Ekanem, JCA, in which this appeal was dismissed. I agree with and adopt as mine the resolution of the issues arising for determination herein. I will only add few comments for emphasis.
The issue of jurisdiction is always a threshold issue. Jurisdiction is conferred on a Court by the Constitution or by statute, as may be permitted by the Constitution; Adetayo v. Ademola (2010) LPELR-155(SC); Adah v. NYSC (2004) 19 NSCQR 220; Utih v Onoyivwe (1991) 1 SCNJ 25. Jurisdiction is the authority which a Court has to decide matters that are litigated before it, or to take cognizance of the matters presented in a formal way for its decision. Jurisdiction is so radical that it forms the foundation of adjudication. Jurisdiction was described by the Court, per I.T. Muhammad, JCA (as he then was) in Sudan Airways Co. Ltd v Abdullahi (1998) 1 NWLR (PT 532) 156 at 163 as the spinal cord of a Court of law. The jurisdiction or authority of the Court is controlled or circumscribed by the statute creating the Court itself. Or, it may be circumscribed by a condition precedent created by legislation which must be fulfilled before the Court can entertain the suit. A complaint querying the jurisdiction or authority of a Court to hear a matter is foundational to the legality of any decision flowing from the proceedings before that Court over such matter. If a Court lacks jurisdiction, then it lacks the necessary competence to entertain the claim before it; Oloba v. Akereja (1988) 3 NWLR (Pt. 84) 508; Aremo ll v Adekanye (2004) 11 MJSC 11; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd (2008) 12 S.C. (PT. II) 240.
A Court is said to have jurisdiction and therefore competent to entertain a matter when: –
a) It is properly constituted as regard members and qualification of the members of the bench and no member is disqualified for one reason or the other.
b) The subject-matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction, and
c) The case comes before a Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.

These pre-conditions are conjunctive and the non-fulfillment or absence of any of them automatically robs the Court the jurisdiction to hear and determine the suit; Madukolu v. Nkemdilim (1962) 3 SCNLR 34; Tukur v. Government of Taraba State (1997) 6 NWLR (PT 510) 549; Drexel Energy and Natural Resources Ltd & 2 Ors v. Trans International Bank Ltd [2008] 12 S.C. (PT.II) 240.
Jurisdiction may be territorial or substantive. Substantive jurisdiction refers to matters over which a Court may adjudicate as expressly stipulated by the Constitution or by enabling statutes; Idemudia v Igbinedion University, Okada (2015) LPELR-24514(CA); Patil v FRN (supra); Ibori v FRN (supra). Territorial jurisdiction was described in Dariye v FRN (supra) also reported in (2015) LPELR-24398(SC) at page 29 of the E-Report thus:
“Territorial jurisdiction implies a geographical area within which the authority of the Court may be exercised and outside which the Court has no power to act. Jurisdiction, territorial or otherwise, is statutory and is conferred on the Court by the law creating.”

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Territorial jurisdiction may mean jurisdiction that a Court may exercise over persons residing or carrying on business within a defined area, or in respect of a contract where its terms bring it within the area. Or it may be administrative, governing which Court or which of its divisions may exercise jurisdiction over a matter.
Usually, criminal jurisdiction is dependent on the enabling law setting out the jurisdiction of the Court against the charge preferred against the accused person. In order to have jurisdiction, the Court must therefore be satisfied that the offence or crime is directly donated by the jurisdiction conferred on the Court in the enabling law; Onwudiwe v Federal Republic of Nigeria (2006) LPELR-2715 (SC). The Court cannot exercise jurisdiction where the offence or crime is outside the enabling law; Bakkat v FRN (2013) LPELR-22817(CA). Criminal jurisdiction may also be exercised by a Court where elements of an alleged crime have been committed within the territorial jurisdiction of the Court; Njovens v. State (1973) LPELR-2042(SC), (1973) All NLR 371; Nyame v. Federal Republic of Nigeria (2009) LPELR-8872(CA).
The issue herein was the interpretation accorded to Section 14 of Advance Fee Fraud and Other Fraud Related Offences Act, 2006 by the learned trial Judge upon which he had assumed jurisdiction over the charge. The said provisions are as follows:
The Federal High Court, or the High Court of Federal Capital Territory and High Court of the State shall have jurisdiction to try offences and impose penalties under this Act.
As rightly submitted by Mr. Alechenu for the Appellant, these provisions govern the subject matter. The provisions enable the trial Court to hear and determine matters brought under the Act. See also Ibori v FRN(supra) where similar provisions in Section 19(1) of the Money Laundering (Prohibition) Act, 2004 were considered. This Court however held therein that the provisions did not detract from the provisions of the Federal High Court Act dealing with geographical jurisdiction. I shall return to this point.
The Appellant’s Counsel was right in his submissions that the attempt to seek support for the decision of the lower Court by relying on Section 4(2) of the Penal Code Law, Laws of Benue State cannot be made by the Respondent without a respondent’s notice being filed. It is trite that if the respondent supports the judgment but wants to have it affirmed on grounds other than the grounds relied upon by the lower Court, he ought to file a respondent’s notice; Ejealor v Governor of Imo State (2017) LPELR-42290(CA); Emirate Airline v Aforka (2014) LPELR- 22686(CA). Where he does not file a cross-appeal or a respondent’s notice, he cannot attack the judgment or make submissions in support of the judgment;Zakirai v Muhammad & Ors. (2017) LPELR-42349 (SC).
Nevertheless, by virtue of the provisions of Section 122(2) of the Evidence Act, 2011, this Court is entitled to take judicial notice of the provisions of all subsisting legislation. These include the provisions of the Constitution and any other Statutes, whether decrees and edicts in effect all laws or enactments and any subsidiary legislation made there under having the force of law now or heretofore in force in any part of Nigeria; Lafia Local Government v Executive Government of Nasarawa State (2012) LPELR-20602(SC) at page 45 – 46 of the E-Report; Okenwa v Military Governor Imo State (1996) LPELR-2440(SC). Therefore, notwithstanding the fact that a respondent’s notice was not filed within the Rules of this Court, the Court may take judicial notice of an existing law. Moreover, the Appellant had made submissions in response to the arguments of the Respondent’s Counsel on the applicability of the provisions of Section 42(2) of the Penal Code Law, Benue State, 2004.

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The jurisdiction of the Benue State High Court to hear and determined criminal proceedings is provided by Section 270(1) and Section 272(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, as amended. The criminal jurisdiction is limited to offences that occur within the territorial jurisdiction of the State. See also Section 12(d) of the High Court Law of Benue State, 2004, which vests in the High Court of the State:
all criminal jurisdiction which at the commencement of this Law was, or at any time afterwards may be exercisable within the State for the repression or punishment of crimes or offences or for the maintenance of order.
Sections 4(1) and (2) of the Penal Code Law of Benue State provide:
(1) Whereby the provisions of any law of the State the doing of any act or the making of any omission is made an offence those provisions shall apply to every person who is in the State at the time of his doing the act or making the omission.
(2) Where any such offence comprises several elements and any 
acts, omissions or events occur which, if they occurred in the State would be elements of the offence, occur elsewhere than in the State then –
(a) if the act or omission, which in the case of an offence committed wholly in the State would be the initial element of the offence, occurs in the State, the person who does that act or makes that omission is guilty of an offence of the same kind and is liable to the same punishment as if all the subsequent elements of the offence occurred in the State; and
(b) If that act or amission occurs elsewhere than in the State, and the person who does that act or makes that omission afterward enters the State, he is by such entry guilty of an offence of the same kind, and is liable to same punishment, as if that act or omission had occurred in the State and he had been in the State when it occurred.

Similar provisions received judicial interpretation in Njovens v. State (supra) where, at pages 35 – 36 of the E-Report, the noble Law Lord, Coker, JSC said:
“Admittedly Section 4 (2) of the Penal Code Law is not easy to construe. The Section is concerned with an offence that comprises several elements and identifies these elements with “acts, omissions or events”. It is clear therefore that the “element” in the Section is more widely conceived and is not and should not be limited to either an actus reus or the mens rea in conventional criminal jurisprudence. The “initial element” to which reference is made in the Section is the initial act or omission concerned and for the purpose of applying Section 4 (2) it is necessary to look for that “initial element”. If (a) that “initial act or omission” occurs in the State even though the other “elements” do not, the person who does that “initial act or omission” is punishable by the State under the Penal Code; on the other hand, if (b) that “initial act or omission” occurs outside the State, the other or others occurring within the State and the person who does that “initial act or omission” afterwards enters the State, he is by such entry triable by the State under the Penal Code.”
See also: Mbah v. State (2014) LPELR-22729(SC); Nyame v. Federal Republic of Nigeria (supra)(CA); Nyame v Federal Republic of Nigeria (2010) ALL FWLR (PT 527) 618, SC; Manya v State (2012) LPELR-15185(CA). In the case of Manya v. The State (supra), this Court, per the erudite Jurist, Nweze, JCA (as he then was) expounded in at pages 32 – 33 of the E-report thus:
“Simply put, the said Section 4 (2) is concerned with an offence that consists of several elements. In Nyame v State (supra), pages 45-46, Adekeye JSC, who read the leading judgment of the Apex Court, approvingly restated the above interpretation of the said section. Interestingly, Adekeye JSC in the said case [page 46] laid down a very illuminating guide on how to resolve the issue of venue of trial of an accused person. According to the legal Amazon:
Whenever the issue of the venue of the trial of an accused person comes up for determination, the most appropriate way of resolving the issue is to identify the offences charged and the elements of same as contained in the proof of evidence with a view to determining whether any of the acts constituting the

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offence occurred in the particular place where the accused is being tried.”
Count 1 for which the Appellant was convicted and sentenced was as follows:
That you Engr. Busari Akeem ‘M’ being the Chief Executive Officer/Managing Director, HAKKIM-B UNIVERSAL VENTURES LIMITED and Engr. Ogbonna Irenaeus ‘M’ being the Project Manager, Federal Rural Water Supply Programme under 2006 Appropriation Act, sometime between 2007 to 2012 at Ipole-Otukpa, Ogbadibo Local Government Area of Benue State within the Judicial Division of the High Court of Benue State, with intent to defraud, conspired among yourselves to obtain money by false pretence from Ministry of Water Resources for the construction of Motorized Borehole Project and thereby committed an offence contrary to Section 8 (a) and punishable under Section 1 (3) of the Advance Fee Fraud and Related Offences Act, No. 14 of 2006.
The offence charged was conspiracy, which was alleged to have been initiated at Ipole-Otukpa, Benue State and continued in Abuja. Elements of the offence were thus alleged to have been committed in Benue State and in Abuja. Going by the judicial pronouncements on the provisions of Section 4(2) of the Penal Law in combination with Section 14 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, therefore, the lower Court did have jurisdiction to entertain criminal proceedings against the Appellant in respect of the offence charged.
For these reasons and for the more comprehensive reasons given by my learned Brother, I also dismiss this appeal and abide by the orders made in the lead Judgment.

Appearances

C. O. Alechenu, Esq. For Appellant

AND

Sir Steve Odiase. For RespondentCONSPIRACYOBTAINING BY FALSE PRETENCE

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