In The Supreme Court of Nigeria
On Friday, the 23rd day of February, 2018
Before Their Lordships
OLABODE RHODES-VIVOURJustice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILIJustice of The Supreme Court of Nigeria
CLARA BATA OGUNBIYIJustice of The Supreme Court of Nigeria
EJEMBI EKOJustice of The Supreme Court of Nigeria
SIDI DAUDA BAGEJustice of The Supreme Court of Nigeria
OMOREDE DARLINTON –Appellant
FEDERAL REPUBLIC OF NIGERIA –Respondent
EJEMBI EKO, J.S.C. (Delivering the Leading Judgment): The Appellant was the 2nd accused person at the trial Federal High Court, Benin. He was tried along with two other persons for offences under the Advance Fee Fraud and Other Related Offences Act, 2006. The Appellant was convicted on counts 1, 4 and 5 of the charge. The said counts read thus1. That you Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa Between the months of May and August, 2008 at Benin City did conspire amongst yourselves to commit felony, to wit: obtaining money by false pretence from one Cynthia Taylor F, an American National and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3), of the Advance Fee Fraud and other Related Offences Act, 2006.
4. That you, Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa on or about the 25th day of June, 2008 at Intercontinental Bank Plc, Mission Road Branch, Benin City – with intent to defraud did obtain the sum of $1,000 USD from one Cynthia Taylor F, an American National, through western Union Money Transfer under False pretence that the sum of money would be used for the processing of a bank loan in favour of the said Cynthia Taylor, facts which you knew to be false and thereby committed an offence contrary to Section 1(1)(a), and punishable under Section 1(3), of the Advance Fee Fraud and other Related Offences Act, 2006.
5. That you Aimuamwehi Friday Osareren, Omerede Darlinton and Iyokho Nosa on or about the 2nd day of July, 2008 at Intercontinental Bank Plc, Mission Road, Benin City with intent to defraud, did obtain the sum of $2,320 USD from one Cynthia Taylor ‘F’, an American National, through Western Union Money Transfer, under the false pretence that the said sum of money would be used for the processing of a bank loan in favour of the said Cynthia Taylor, facts which you knew to be false and thereby committed an offence contrary to Section 1(1)(a), and punishable under Section 1(3), of the Advance Fee Fraud and other Related offences Act, 2006.
The conviction and sentence of the Appellant, imposed by the trial Court, were subsequently on the appeal of the Appellant to the Court of Appeal (the Lower Court) affirmed as his appeal was dismissed: hence this further appeal.
Two witnesses testified at the trial. Part of the evidence of the Pw.1 (ex facie pages 67 – 70 of the record) that remained unchallenged and unscathed by cross-examination runs thus. That the 1st accused, on his arrest –
In his statement he confessed to be the brain behind the scam scandal and he said that he started as pen-pal to Cynthia Taylor before he introduced loan scam. He promised to help her obtain or secure loan from a bank in Nigeria and asked for an advance fee for processing. We asked him how many times he received money from 1st Accused said he could not remember but he knew he collected severally.
He continued this scam until when he was ready for his Youth Service before he handed it over to his friend the 2nd Accused to continue.
The next day the 1st Accused on 6.4.2011 took us to Omerede Darlinton, (the) 2nd Accused, where we arrested him.
2nd Accused equally admitted that the 1st Accused handed over the scam to him to continue. The 2nd Accused used his cousin’s name, Iyokho Nosa, the 3rd Accused to collect the money and the proceeds were shared between him, the 2nd Accused and the 1st Accused and he settled the 3rd Accused person who was his cousin.
The Pw.2 recorded four statements, Exhibits J 1-4, of the Appellant respectively on 6.4.2011, 7.4.2011, 11.4.2017 and 15.4.2011. The statements were said to have been voluntarily made and recorded. An issue has been made, in this appeal, of the voluntariness and admissibility of these statements. I shall come to it anon.
At the trial Court and the Lower Court an issue was made that the absence of the complainant, Cynthia Taylor, and her counsel, Chi Obi-Igwe, at the trial, and the fact that they did not testify had seriously undermined the trial and vitiated the prosecution. The Lower Court relying, inter alia, on UGWU V. THE STATE (1998) 7 NWLR (Pt.558) 397 at 408 and UDO v. THE STATE (2006) 15 NWLR (Pt.1001) 179 (SC), dismissed the contention on the grounds that the prosecution is not required to call every witness, or a host of witnesses to testify, once from the material witnesses they are able to prove their case beyond reasonable doubt. That is the law.The Lower Court, in my firm view, cannot be faulted on this.There is no rule of evidence or criminal procedure that makes it compelling or mandatory that the complainant must adduce evidence personally in proof of his complaint. Agreed, in most cases the complainant starts the burden of proof by leading evidence to substantiate his complaint that is the basis of the charge: UGWU v. THE STATE (supra). That is the rule of evidence or criminal procedure, and it is also not sacrosanct.
In this further appeal the Appellant appears to have shifted position a little. His issue 1 reads:
Having regard to the Supreme Court decision in the case of BENJAMIN THOMAS OPOLO V. THE STATE (1977) ALL NLR (re-print) 312 as to the importance of documentary evidence made by the complainant to be tendered by him; whether the Court of Appeal was right when the Court affirmed that it was not necessary for the complainant to come to Court having been traumatized by the act of the Appellant when there was no evidence of the said traumatisation proffered at the trial Court.
I have not been able to find from the judgment of the Lower Court on appeal herein any passage alluding to this charge that the Lower Court imported and took into consideration this extraneous matter to warrant its holding that it was not necessary for the complainant to come to Court having been traumatized by the act of the Appellant”. The charge is irresponsible, unwarranted and professionally unethical for any counsel, worth being called an officer of any Court of law, to do. Appellant’s counsel, Olayiwola Afolabi, argued this issue 1 at pages 5 – 8 of the Appellants brief of argument. He never once anywhere therein pointed to the passage in the Lower Courts judgment where the lower Court affirmed the rather bogus or extraneous statement attributed to the trial Court.
There is no doubt, and it is trite as well, that the Appellant has the burden of establishing his assertions. He has a duty to establish the assertions made in the complaints either in his grounds of appeal or the issues formulated from the grounds of appeal for the determination of his appeal. Section 131(1) of the Evidence Act, 2011 is quite categorical on this: whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.This principle applies also in appellate Courts.
In my firm view the Appellant has failed to substantiate the substance of his complaint or assertion in his issue 1. In any case, it is not every error or slip committed by the Court below that entitles the appellant to have his appeal allowed and the judgment appealed set aside. The error committed by the Court below entitling the appellant to succeed in setting aside the decision appealed is one that is substantial and resulting in a miscarriage of justice.
The Appellant also complains that his bail was revoked suo motu by the trial Court when he raised objection to the admissibility of his extra-judicial statements, Exhibits J 1 4 and that notwithstanding the fact that the prosecutor agreed to holding trial – within – trial to determine the voluntariness or otherwise of his making of the alleged confessional statements the trial Court revoked the bail of the Appellant in order to scuttle the trial-within-trial and thereby coerced the Appellant to withdraw his objection. The application for trial-within-trial appears to be ruse or ploy to delay proceedings. At page 73 of the record the minutes of the proceedings on 13th March, 2012 shows objection to the admissibility of the extra-judicial statements of the accused persons. It also shows that all counsel agreed on 3rd May, 2012 for the trial-within-trial to commence; that is 50 days thereafter. The trial Court, granting the adjournment, stated:
“It appears there is likelihood the case may take longer time and we cannot guarantee accused bail till then.
Case adjourned (to) 3.5.2012 meanwhile Accused persons bail is revoked.”
The proceedings resumed on 3rd May, 2012. At the commencement of the resumed proceedings Appellant’s withdrew “our objection for the tendering of the 1st and 2nd Accuseds’ statements in evidence. Consequently, the extra-judicial statements of the Appellant, as the 2nd Accused, were admitted in evidence as Exhibits J1 – J4. The proceedings continued to the conclusion of the testimonies of the Pw.1 and Pw.2.
The revocation of the bail the accused person was enjoying without blemish is an exercise of judicial discretion, which discretion has to be exercised judicially and judiciously. The reason for the exercise of the discretion must be given: CEEKAY TRADERS LTD V. GENERAL MOTORS CO. LTD (1992) 2 NWLR (Pt.222) 132 (SC). Once the Court grants bail to an accused person; it ought not in law revoke such bail, unless there is evidence of some changed circumstances placed before it: AMEH EBUTE & 5 ORS v. THE STATE CA/L/196/94 unreported of 21st July, 1994. The Court in exercise of its discretion must only act on empirical facts or materials placed before it and not on extraneous or irrelevant matters: UNIVERSITY OF LAGOS v. AIGORO (1985) 1 SC 265 at 271. I agree with the Appellant that the trial Court, in revoking his bail acted inappropriately, wrongly and arbitrarily.
Appellant’s counsel extends the argument from there. He submits that the bail of the appellant was revoked as a ploy to coerce the Appellant to withdraw his objection to the admissibility of his extra-judicial statements, Exhibits J1 J4; and that a reasonable observing the proceedings would come to the conclusion that the Court was not fair to the Appellant. For this alleged breach of the Appellants right to fair trial, the cases KOTOYE V. CBN (1989) 1 NWLR (Pt.98)
419; PAM v. MOHAMMED (2008)
16 NWLR (Pt.1112) 1 at 85, were cited.
Be it noted that the wrong and arbitrary order of the trial Court made on 13th March, 2012 revoking the bail of the Appellant was not appealed, even though it was appealable by virtue of Section 318 of the 1999 Constitution, as amended. The Appellant in the circumstance is taken to have accepted it.
The suggestion that the arbitrary revocation of the bail of the Appellant was the reason for the Appellant’s counsel on 3rd May, 2012 (50 days after) withdrawing their objection to the admissibility of the Appellants extra-judicial statements, said to have been made involuntarily, and also their request for trial-within-trial. Neither the Lower Court nor this Court, and any Court for that matter, does mind reading. Courts of law act on empirical facts placed before them: AMEH EBUTE & ORS v. THE STATE (supra). The success of this issue depends, as it appears, on this hazy and unproven assertion. The fact sustaining the issue is not borne by the printed record. That fact must be empirical and not suppositious or divinatory. I think, and I so hold, that the suggestion, that Appellants counsel withdrew, the objection to the admissibility of the Appellant’s extra judicial statements as well as the request for the trial within-trial because of the revocation of the Appellant’s bail, is tenuous and unsubstantiated.
The facts of this case, including their absence, do not warrant the invocation of the principle in R. V. MADISON (1988) 1 WLR 139; R V. NATH 8 WR 53 that a confession is inadmissible if the accused person was tricked into telling the truth: see also Section 29 (2) Evidence Act, 2011. No facts exist in this case to warrant any suggestion that the Appellant was tricked into telling the truth of his roles in this matter. The two cases have been cited out of context by the Appellant’s counsel.
I had earlier reproduced part of the testimony of the Pw.1 (at pages 67 – 70 of the record) affirming that the Appellant voluntarily made the disputed statement. The Pw.1 was not cross-examined on this evidence that was damning and adverse to the Appellant’s interest. This later posture of the Appellant, under his issue 2, is clearly a futile effort at prevarication. And he is not permitted to approbate and reprobate on this same issue.
With or without the confessional statements admitted in evidence as Exhibits J1 – J4 the viva voce confession of the Appellant, testified to by the Pw.1, could still sustain the conviction and sentence of the Appellant.
In any case, it is obvious from the Appellants 3 issues at the lower Court, reproduced in the judgment of the Lower Court at pages 283 – 284 of the record, that the extant Appellant’s issue 2 was not an issue at the Lower Court. It is a fresh issue raised here for the first time without leave first sought and obtained. It is completely untenable.
I do not think that there is any dispute, and the law is trite, that in criminal proceedings the burden of proving the guilt of the accused is always on the prosecution. Both the appellant and the Respondent are ad idem on this.
It is clear from the Pw.1s unchallenged evidence, at pages 67 – 71 of the record, that the Appellant knew from the inception that the 1st Accused was recruiting him into the scam business of defrauding Cynthia Taylor. The 1st Accused initiated the Appellant into the scam as his successor in the scam business as he 1st Accused was proceeding to Kano State for his compulsory National Youth Service Corp (NYSC) Service. The Pw.1 was quite emphatic that “the 2nd Accused (the Appellant) equally admitted that the 1st Accused handed over the scam (business) to him to continue”. To actualise the scam the Appellant brought in his cousin, 3rd Accused, to be collecting the money. On the charge of conspiracy, this evidence is not at variance with the charge to warrant invocation of the principle that, where the evidence led is at variance with the charge, the charge has not been proved beyond reasonable doubt: AKINLEMIBOLA V. COMM. OF POLICE (1976) 6 SC 207. The testimony of the Pw1 taken with Exhibits J1 J4, the confession of the Appellant, prove beyond reasonable doubt the charge of criminal conspiracy the Appellant was convicted and sentenced for.
I read the defence evidence of the Appellant and the submissions of his counsel, I hold the firm view that no reasonable doubt exists about the complicity of the Appellant in the conspiracy charged. Accordingly, I cannot fault the Lower Court when it affirmed the conviction and sentence of the Appellant for the criminal conspiracy.
The charges 4 and 5 the Appellant was convicted and sentenced for having the same elements, except the dates. The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts I. A pretence is made by way of
II. From the accused person.
III. To the person defrauded.
IV. The representation is a pretence.
IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation.
VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made.
VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the to the accused or some other person.
VIII. The property transferred is capable of being stolen i.e. is asportable.
These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.
The offence charged cannot be said to have been proved beyond reasonable doubt when all the essential elements or ingredients of the offence have not been proved beyond reasonable doubt. To this extent, I am in agreement with the submission of the Appellant’s counsel on the authority of ALABI v. THE STATE (1993) 13 LRCN 977 at 984. Every ingredient of the offence charged must be established by the prosecution in order to succeed.
The Appellant, as submitted by the Respondents counsel, has admitted in Exhibit J1 that he represented himself to Cynthia Taylor, through e-mail, that he was the manager of the bank that would give her loan and demanded from her $1000 USD as the processing fee for the loan, He admitted in the same Exhibit J1 that Cynthia Taylor, acting on representation, that was false, started transferring money to the Appellant through the account of the 3rd Accused nominated for that purpose. The account was the personal and private account of the 3rd Accused. It was not the account of any loan giving bank or enterprise. The Appellant further admitted in the same Exhibit J1 that the sums – $1000 USD and $2,320 USD, respectively, the subject of charges 4 and 5 were sent into the account of the 3rd Accused by the said Cynthia Taylor. The said sums were received or cashed.
The unchallenged evidence of the PW1, corroborating Exhibit J1, is that:
The 2nd Accused used his cousin’s name Iyokho Nosa, the 3rd Accused, to collect the money and the proceeds were shared between him 2nd Accused and the 1st Accused and he settled the 3rd Accused who is his cousin.
The purported loan was a hoax, contrived fraudulently to induce Cynthia Taylor to deliver or transfer her money to the Appellant through the account of the 3rd Accused. Thus, as submitted by the Respondents counsel, the purported loan the Appellant falsely represented to the said Cynthia Taylor, was part of false pretence. Appellant knew that he was not in a position to give any bank loan to Cynthia Taylor or any other person. He was never a money lender or a manager of any bank. His false representation was made to the said Cynthia Taylor thorough the e-mail address: email@example.com. The intention to defraud the said Cynthia Taylor was clear from the inception. There is no doubt that Cynthia Taylor transferred the sums of $1000 USD and $2,320 USD, a thing capable of being stolen, to the account of the 3rd Accused nominated to her for the fraud by the Appellant. There is also no doubt that the said sums were sent and received through western Union money transfer.
The confession in Exhibit J1 – J4, corroborated by the viva voce evidence of the PW1, is enough to sustain the conviction of the Appellant on counts 4 and 5 of the charge. An extra-judicial confession made voluntarily which is positive and unequivocal and amounting to admission of guilt of the person charged can be used by the Court to predicate the conviction of the accused on regardless of whether the maker resiled from it or attempted to retract it: STANLEY ADIGUN EGBOGHONOME v. THE STATE (1993) 7 NWLR (Pt. 306) 383. In DIN v. AFRICAN NEWSPAPERS OF NIGERIA LTD (1990) 3 NWLR (Pt.139) 392; (1990) 21 NSCC (Pt.2) 313, admissions are held to be the best evidence. The old adage is no man ordinarily tells lies to incriminate himself.
The Lower Court was not in any error in affirming the conviction and sentence of the Appellant on counts 1, 4 and 5. As found by the Lower Court, the Appellant admitted that he was quite aware of the fraud being perpetrated by the 1st Accused. He continued with the fraud as the successor in fraud of the 1st accused and brought in his cousin, the 1st
Accused, in the fraudulent scheme. In the circumstance I have no basis to interfere with the concurrent findings of fact on which the conviction of the three offences charged in counts 1, 4 and 5 is premised. The concurrent findings are compelling. I hereby affirm them.
At the Lower Court there was no complaint that “the sentence passed against the Appellant is (was) excessive having regards to the fact that the Appellant is (was) a first offender”. The Lower Court therefore had no opportunity or reason to consider the issue: whether the sentence passed against the Appellant was excessive. This issue of the excessiveness of the sentence brought in via ground 8 of the Grounds of Appeal is therefore a fresh issue.
There is no doubt, as submitted for the Appellant, that this Court, being the Apex Court, has right, indeed power, to reduce the sentence imposed by the trial Court, where the ends of justice justify it. Appellant’s counsel for this commended to us, my Lords, the cases of EKPENYONG V. THE STATE (1967) ALL NLW 285; GANA v. THE STATE (1968) 1 ALL NLR 352, and MOHAMMED v. C. O. P. (1969) 1 ANLR 465. The Court of Appeal, by dint of Section 15 of the Court of Appeal Act, 2004 also has that power, if and when its jurisdiction is properly invoked. The same power enures to this Court by dint of Section 22 of the Supreme Court Act.
The Supreme Court does not have jurisdiction to hear and determine appeals directly from the High Court. Section 233(1) of the Constitution states, unequivocally, that the Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria, to hear and determine appeals from the Court of Appeal. The Supreme Court does not take appeals directly from the decisions of the High Courts, or Courts below the Court of Appeal.
This issue of the excessiveness of the sentence imposed by the trial High Court, brought directly to this Court, challenges the discretion of the trial High Court.
Ground 8 of the Grounds of Appeal does not complain that the Court of Appeal acted in error in affirming the sentence imposed by the trial High Court. The Appellant, in the circumstance and by virtue of Section 233(2) of the Constitution cannot appeal directly to this Court as of right complaining, as he does, that the sentence passed against him by the trial High Court is excessive. The 8th ground of appeal is in the circumstance incompetent. Being a fresh issue it requires leave first sought and had before it can lawfully be entertained by this Court.
It is true this is the Apex Court in Nigeria. It is also a Court of law whose jurisdiction is statutory. The enabling provisions having prescribed and limited its jurisdiction, the Supreme Court will act ultra vires if it acts in excess of the jurisdiction donated to it by the Constitution.
Ground 8 of the Grounds of Appeal and issue 4 formulated therefrom being incompetent are both hereby struck-out. The appeal, on issues 1, 2 and 3 canvassed by the Appellant, is devoid of any merits. It is accordingly dismissed. The conviction of, and the sentence imposed, on, the Appellant by the trial High Court in charge No.FHC/B/57C/2011 which conviction and sentence were affirmed by the Court of Appeal in the appeal No. CA/B/349/CB/2013 are hereby further affirmed.
OLABODE RHODES-VIVOUR, J.S.C.: I had a preview of the leading judgment delivered by my learned brother, Eko, JSC. For the reasons stated by him, I agree the appeal shall be dismissed. The judgment of the trial Court affirmed by the Court of Appeal is further affirmed by this court.
MARY UKAEGO PETER-ODILI, J.S.C.: I am at one with my learned brother, Ejembi Eko JSC in the judgment and reasonings he just delivered. I shall make some remarks in support.
This is an appeal against the judgment of the Court of Appeal Benin Division or Court below or lower Court, which Court affirmed the decision of the trial Federal High Court, Benin which convicted and sentenced the appellant on the three counts.
The background facts leading to this appeal are well set out in the lead judgment and I shall not repeat them unless it becomes necessary to make reference to any part thereof.
The appeal was heard on 29th November, 2017 at which date Olayiwola Afolabi Esq, of Counsel adopted the appellants brief of argument filed on 6th June, 2016 and deemed filed on 1st November 2017 and a reply brief filed on 9th November, 2017. The appellant raised four issues for determination which are thus:-
1. Having regard to the Supreme Court decision in the case of Benjamin Thomas Opolo v The State (1997) ALL NWLR REPRINT 312 as to the importance of documentary evidence made by the complaint to be tendered by him whether the Court of Appeal was right when the Court affirmed that it was not necessary for the complaint to come to Court having been
traumatized by the act of the appellant when there was no evidence of the said traumatisation proffered at the trial Court.
2. Having regards to the fact that the bail of the appellant was suo motu revoked by the trial Court without any application when the applicant raised the issue of involuntariness of his statement whether the Lower Court was right when it affirmed the conduct of the learned trial judge in accepting the purported confessional statement of the appellant.
3. Having regards to specific offence of false pretence against the appellant and the burden of proof which reside on the prosecution whether the Court below was right when it affirmed the judgment of the trial Court convicting the appellant for false pretence when the appellant never made any misrepresentation to the victim.
4. Having regard to the fact that the appellant is a first offender and the circumstances of the facts in this appeal, whether the appellant is entitled to have his sentence reduced by this honourable Court in view of the excessive evidence imposed on the appellant.
Learned counsel for the respondent Ifeanyi Agwu Esq. Legal officer of the Economic and Financial Crimes, EFCC, adopted its brief of argument filed on 23rd October 2017 and deemed filed on the 1st November 2017. Two issues for determination were identified which are as follows:-
1. Whether the respondent/prosecution has proved beyond reasonable doubt the offence of conspiracy against the appellant.
2. Whether the respondent/prosecution has proved beyond reasonable doubt the offence of obtaining money under false pretence in count four (4) and count five (5) against the appellant.
I shall utilise the issues as crafted by the respondent as they are simple and encapsulate all nagging questions though I shall collapse the two issues into one thus:-
Whether the respondent/prosecution has proved beyond reasonable doubt the offences of conspiracy and obtaining money under false pretences in counts 4 and 5 against the appellant.
Learned counsel for the appellant contended that the prosecution’s failure to call to testify the complainants Cynthia Taylor and Chi Obi-Igwe was fatal to the prosecution’s case and the document purportedly sent by them were hearsay evidence which is inadmissible. He cited Osuoha v State (2010) 16 NWLR (Pt.1219)36 4 at 373; Adewale v Olaiya (2012) 17 NWLR (Pt.1330) 478; Isiaka v State (2011) ALL FWLR (Pt.583) 1966 at 1971.
That the none production of Cynthia Taylor to testify created serious doubt which should be resolved in favour of the appellant. He referred to Ifejirika v State (1999) 3 NWLR (Pt.593) 59 at 79.
Learned counsel for the appellant also raised the matter concerning the admission of the appellant’s confessional statement which voluntariness was called to question by the appellant especially admitting it without a trial within trial. He cited Auta v. State (1975) 4 SC 725; Effiong v State (1998) 8 NWLR (Pt.562) 362; Isah v State (2010)16 NWLR (Pt.1218) 132 at 158.
That the prosecution faired to prove its case against the appellant beyond reasonable doubts,That the essential elements of the offences charged have not been established and so the appellant ought to be left off. He cited Alabi v State (1993) 13 LRCN page 977 at 984.
That the appellant being a first offender ought to have the sentence reduced. He cited Ekpenyong v State (1967) ALL NLR 285; Gana v State (1968) 1 ALL NLR 352; Mohammed v. COP (1969) 1 ANLR 465; Kayode v. State (2008) 1 NWLR (Pt.1068) 281 at 305 etc.
Learned counsel for the respondent contended that the essential ingredients of the offence of conspiracy were made out with the meeting of minds to commit a common illegal purpose against the appellant and co-accused. That these were inferred from what the accused did since a direct evidence of the conspiracy is not within sight. He cited Erim v The State (1994) 5 NWLR (Pt.345) 522 at 524; Omotola v FRN (1999)12 NWLR (Pt.682) 483 at 501-502; David Idiok v State (2006) 12 NWLR (Pt.993) 1.
Also very usual, counsel stated is the confessional statement of the 3rd accused which showed the active roles played by
the appellant. He referred to Kayode v State (2016) 7 NWLR (Pt.1511) 199 at 491-492.
For the respondent it was contended that the prosecution proved the essential ingredients of obtaining money under false pretence beyond reasonable doubt. He cited Odiawa v FRN (2008) ALL FWLR (Pt.439) 436 at 447; Onwudiwe v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780.
That assuming appellant retracted his statement to the police, that would not affect its admissibility. The case of Ayo v. State (2009) 8 WRN 134 at 139.
Learned counsel for the respondent further stated that the non appearance of the complaint, Cynthia Taylor to testify was not fatal to prosecution’s case since there was more than enough in evidence with which the prosecution could and did prove its case as required by law. That the appellant who was at liberty to proffer evidence to debunk what the prosecution had laid out had no one to blame for the prosecution producing evidence he could not demolish or dent. He cited Nwaeze v. State (1996) 2 NWLR (Pt.428 1 at 6; Adeyemo v State (2015) 16 NWLR (Pt.1485) 311 at 325; Busari v State (2015) ALL FWLR (Pt.777) 715 at 734.
He submitted that EXHIBIT A the petition written to the public body is public document and cannot be termed hearsay evidence. He cited Onwuzuruike v Edoziem (2016) ALL NWLR (Pt.827) 757; FRN V Sani (2015) ALL FWLR (Pt.765) 1832 at 1863-1864; Isang v The State (1996) 9 NWLR (Pt.473) 458.
That the trial Court was right in imposing the said sentence in the circumstances of the case. He cited Uzoloke v. The State (1965) NMLR 125; Dada v Board of Customs & Excise (1982) 2 NCR 79, Afolabi v. The State (2013) 13 NWLR (Pt.1371) 292 etc.
On the offence of conspiracy, one of the counts for which the appellant was charged, it is to be noted that for the offence of conspiracy to be committed there must be an agreement by two or more persons to do or cause to be done on illegal act or a legal act by illegal means. To prove the offence the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by unlawful means. The nature of the offence of conspiracy is such that the circumstances surrounding the offence are usually concealed and plotted in secret by the conspirators and so it is difficult to prove the physical act. The uniqueness of the offence is such that the offence is complete when the agreement to do the unlawful act or carry out a legal act illegally and nothing more is done thereafter. Stated another way, the moment the meeting of the mind is reached, the fact that one of the conspirators reneges, repents or stops at a point or has no further opportunity to participate or perform his role in the agreement changes nothing as the offence is already completed.
Again to be said is that the conspirators need not know or meet each other previously and might as well live in different towns, cities and even separate countries, it is enough that the conspirators were in communication. See Erim v The State (1994) 5 NWLR (Pt.345) 522 at 524; Omotola v. FRN (1999) 12 NWLR (Pt.682) 483 at 501-502.
I agree with the submission of learned counsel for the respondent that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is liable for the consequence of the act and it does not matter which role any of the accused played. In the instant case the appellant was charged with the offence of conspiracy to commit felony to wit; obtaining money under false pretence with two other accused persons at the trial Court. The appellant was the 2nd accused person therein and he admitted that the 1st accused person introduced him to one Cynthia Taylor as a bank manager for the purpose of giving her loan. Thereafter, the appellant started sending emails to the said Cynthia Taylor assuring her of the loan. The appellant went further to introduce Iyokho Nosa, 3rd accused person into the act and appellant and 3rd accused went on sending the emails to Cynthia, clearly the intention to defraud her was evident as they knew the matter of giving a loan was false. It was in the face of this false knowledge that appellant demanded money from the said Cynthia to process the purported loan which money she sent through western Union in the name of the 3rd accused which name was sent by appellant and 1st accused. The learned trial judge found a nexus between the appellant and the co-accused and the Court below had no difficulty in affirming that finding by stating thus:-
“As can be gleaned from the evidence of PW1 and also the confessional statement of the appellant, EXHIBIT ‘F2’ the appellant can clearly be marked as one of the conspirators having been invited to constitute in conspiracy. The appellant cannot be exculpated from the acts even though he claimed that he was merely helping the 1st accused and did not form any criminal intent when he joined in the scheme. Suffice it to say that he actually collaborated by helping 1st accused to send the scam emails to the victim and he in turn received compensation for his efforts
The appellant Omorede Darlington was introduced into the illegal act but the 1st accused person and mutual agreement both the 1st accused and the appellant started sending e-mails to the victim with intent to defraud her. The 3rd accused persons in his extra judicial statement, EXHIBIT ‘F3’ at page 75 of the record of appeal stated”
The concurrent findings of the two Courts below tally with the views of this Court. See Kolawole v. State (2015) ALL FWLR (Pt.778) 864 at 887 wherein the Supreme Court had this to say:
“Assuming, without so suggesting, that the appellant merely acted as lookout while the armed robbery operation was being committed, would he have successfully put up a defence of non-participation in the principal offence of robbery? The answer is found in Section 7 of the Criminal Code Cap. C38, Laws of the Federation of Nigeria, 2004 which provides thus:-
7. When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence and be charged with actually committing it.
(a) Every person who actually does the act or makes the omission which constitutes the offence;
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;
(c) Every person who aids another person in committing the offence;
(d) Any person who counsels or procures any other person to commit the offence.
In the instant case, it is not in doubt the appellant was the person who procured other co-accused persons to carry out the robbery on the night in question considering his statements and the confessional statements of other accused persons.”
I also refer to the case of David Idiok v. State (2006) 12 NWLR (Pt.993) 1.
In respect to the offence of obtaining money by false pretence the Court below had stated thus:-
“Section 1(1)(a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006, states thus:
Notwithstanding anything contained in any other enactment or law, any person who by any false pretence and with intend to defraud
(a) Obtain from any person, in Nigeria or in any other country, for himself or any other person
Any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, is guilty of an offence under this Act.
Clearly the two Courts below made their findings based on the evidence on ground in relation to the prosecution establishing the essential ingredients of the offence are thus:-
1. That there was a false pretence made by the accused to the person defrauded.
2. That the thing stolen or obtained is capable of being stolen.
3. That the accused did same with the intent to defraud
This Court had broken down in simplified style the ingredients in the case of Odiawa v FRN All FWLR (Pt.439) 436 at 447 as follows:-
1. there is a pretence
2. the pretence emanated from the accused.
3. It is false
4. the accused knew of its falsity or did not believe in its truth.
5. there was intention to defraud.
6. that the thing is capable of being stolen.
7. that the accused induced the owner to transfer his whole interest in the property.
Those same elements were also listed in the case of Onwudiwe v. FRN (2006) ALL FWLR (Pt.319) 774 at 779 – 780; or (2006) 10 NWLR (Pt.988) 382.
That those essential elements of the offence of obtaining by false pretences were made out are glaring from the evidence, specifically in the extra-judicial statement, Exhibit J1 as the appellant put out himself to Cynthia Taylor that he is a bank manager which he was not. Also that he would as bank manager give her a loan which he was not in a position to do, therein lay the false pretence based upon which Cynthia was enticed into sending the various sums of $1000 and $2,320 to the person named by the appellant who received the money which appellant and the two others shared among them. Again the thing obtained is capable of being stolen and therefore the components of the offence were complete.
Indeed there is no need belabouring the matter as the concurrent findings are solidly grounded and there is no point for this Court to interfere, the findings having been drawn from the evidence on record and not in breach of any known principle of law. I refer to Nkebisi v State (2010) 5 NWLR (Pt.1188) 471; Afolabi v State (2010) 16 NWLR (Pt.1220) 584.
From the foregoing and the better reasoning in the lead judgment, I am satisfied that the appeal lacks merits and I hereby dismiss it too. I abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: My learned brother Ejembi Eko, JSC has dealt adequately with the issues raised in this appeal. I agree with the reasonings and conclusions arrived thereat and I adopt same as mine.
In terms of the lead judgment therefore, I too find no merit in this appeal and same is also dismissed by me.
Appeal is dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Ejembi Eko, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit and it is accordingly dismissed.
Olayiwola Afolabi, Esq. with him, A. I. Tsado, Esq., E. C. Abedenego, Esq., M.O. Asuma, Esq. and Noma Ogbodu, Esq. –For Appellant
Ifeayin Agwu, Esq. (Legal Officer, EFCC) –For Respondent