Suit Number:CA/L/922C/2014
Judges:A. A. AUGIE JCA (Presided and Read the Lead Judgment)
JOSEPH SHAGBAOR IKYEGH JCA
JAMILU YAMMAMA TUKUR JCA
Counsel:Allens Agbaka Esq. - for the Appellant.
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E.A. Jackson Esq. - for the Respondent.
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AUGIE JCA (Delivering the Lead Judgment): The appellant, alias Otunba Tiamiyu Seriki, and another person were arraigned before the Lagos State High Court and charged with offences of
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conspiracy to obtain money by false pretences, obtaining money A by false pretences, forgery, uttering forged documents and impersonation. As the 1st defendant, he pleaded not guilty to all the 6 counts of the charge and to prove its case, the prosecution
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called the following witnesses who testified: B
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- PW1 , Senator James Olagunju Kolawole - The
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victim
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PW2 , Boniface Uzoechi - An EFCC Operative PW3 , Chief Happy Ekojikoko - The Hotel Proprietor PW4 , Lanre Agunbiade - The Hotel Manager C PW5 , Otunba Tunde Tiamiyu Seriki - Legal Practitioner PW6 , Rita Nkechi Ibekaku - An EFCC Operative PW7 , Alex Ebbah - An EFCC Operative PW8 , Alhaji Olatunji Azeez - Partner of PW1’s D
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estate agent
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PW9 , Oluwatoyin Olufunke Evbotokhai - An EFCC Operative
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Its case is that the appellant, Kola Famoroti (2nd defendant) E and other accomplices, with intent to defraud PW1 , conspired to obtain and did obtain the sum of N22,000,000.00 (twenty-two million naira) from PW1 by false pretences, through his estate agent - Adedayo Falade.
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Apparently, the 2nd defendant and one Oluwole Aborisade, F
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PW1’s cousin, introduced a property, known and situated at No. 8, Sam Adegbite Close, Victoria Island, Lagos, to PW1 , claiming that the property had belonged to one late Ogundeji. They fed him a story about the deceased’s family putting the G property up for sale to offset his debt and convinced PW1 that
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it was a good buy. Meanwhile, the said property had been sold to PW5 , and it was later bought by PW3 , who lived there. PW1 was taken in by the story and instructed his estate agent, Adedayo
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Falade, to go and discuss with them. Upon receiving a favourable H
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report about the property from his agent (Falade), PW1 attended a meeting with the appellant, who introduced others as “the
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administrators of the house bearing the name”. They agreed on N55,000,000.00 (fifty-five million naira) and demanded a part payment of N25,000,000.00 (twenty-five million naira). PW1 got a loan from his bank and raised a draft for N25,000,000.00 (twenty-five million naira) in the name of his agent, who kept N3,000,000.00 (three million naira) as his fees and gave the
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balance of N22,000,000.00 (twenty-two million naira) to the fraudsters. PW1’s cousin later told PW1’s agent that “the whole thing was a fake arrangement”.
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PW1 threatened to hold his agent responsible for any loss he might suffer and so, the agent informed one Col. Olajide of the Nigerian Army Intelligence Corps about what happened, and they agreed to set them up. PW1’s agent invited them for
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another round of payment. The appellant, the 2nd defendant and
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PW1’s cousin, Olu Aborishade, showed up at the venue, where
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they were promptly rounded up and arrested by the said Col. Olajide and his men and were subsequently handed over to the Economic and Financial Crimes Commission (EFCC).
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At the close of the prosecution’s case, the appellant and the 2nd defendant made a no-case submission that was rejected by the learned trial judge, Oyewole J. (as he then was) and he was called upon to enter his defence. In his testimony as DW1 , he denied all the allegations in the said 6 counts of the charge. At the close of trial and after adoption of final addresses, the
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said learned trial judge delivered judgment on 8 May 2012 , wherein he found the appellant guilty on counts 1, 2, 5 and 6, and not guilty of the allegations of forgery, etc., in counts 3 and
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4. He sentenced him to 12 years imprisonment without the option of fine on counts 1 and 2 and two (2) years imprisonment without the option of fine on counts 5 and 6. Dissatisfied with the
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decision, he sought and was granted leave to appeal and he then filed a notice of appeal containing 9 grounds of appeal in this
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court.
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In his brief of argument prepared by Allens Agbaka, Esq., the appellant formulated 7 issues for determination as follows:
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Whether having regards to the inadequacy and/or A lack and/or deficiency in the weight of evidence adduced at the trial court, the judgment of the trial court is not unreasonable and unwarranted in the
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circumstance. B
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Whether the failure of the prosecution/respondent in
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not calling PW1’s agent (Adedayo Falade), the only eye-witness, and the only prosecution vital witness is not fatal to the prosecution/respondent’s case and
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consequently renders the conviction of the appellant C
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invalid, null and void.
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Whether the trial court was wrong when it convicted t he ap pell ant on t h e gro un d t hat t here was overwhelming evidence against the appellant together
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with his confederate on the run, who acted with D
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common intention and proceed to defraud PW1 as contained in count one.
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Whether the learned trial judge of the lower court was not wrong in rejecting the testimonies of the E defendant/appellant without indicating the material contradiction inherent in the appellant’s witness testimonies. Whether having regards to the evidence adduced at the trial court, PWl , PW2 and PW7’s evidence F
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qualifies as a direct evidence and exhibits P2, P1 P4, P14, P15, P16, P17 and P20 are direct and admissible evidence in the circumstance.
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Whether the trial court has jurisdiction to have tried G and convicted the appellant having regards to incurable vice inherent in the amended information. Assuming without conceding that the trial court was right in convicting the appellant, whether having regards to the peculiar nature of the appellant’s case, H the appellant’s sentence was not excessive in the circumstance.
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However, the respondent submitted in its own brief prepared by E.A. Jackson Esq., that the sole issue for determination is:
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“Whether on the evidence on record as adduced by
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the prosecution, the learned trial court was right in holding that the prosecution proved the counts of
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conspiracy, obtaining money by false pretences and imp erso nat io n again st t he ap pell ant b eyon d reasonable doubts, thus warranting his conviction
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on those counts?
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The appellant objected to the issue distilled by the respondent in his reply briefon the ground that it cannot formulate 1 issue “without adopting, modifying, and/or reflecting (his) seven
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(7) issues”. He argued that by not doing so, it conceded to his
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seven (7) issues; that although it is entitled to formulate entirely
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new issues for determination, they must arise from his grounds of appeal and/or from issues formulated in his brief; that its sole issue did not arise from the 9 grounds of appeal or his seven (7)
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issues, and it ought to formulate or adopt one of his own issues in addition. He cited the following cases: E.F.C.C. v. Odigie (2013) All FWLR (Pt. 692) 1797; Arum v. Nwobodo (2013) All
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FWLR (Pt. 688) 870; Olokunlade v. Ademiloyo (2013) All FWLR
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(Pt. 658) 947; Udusegbe v. Tugba (2011) All FWLR (Pt. 599)
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1191; Unokan Ent. Ltd v. Omuvwie (2005) All FWLR (Pt. 262)
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501; Fi rst City Monument Bank Ltd v. Standard Alliance Insurance Company Limited (2007) All FWLR (Pt. 363) 133. It is clear to me that this contention is nothing but hot air.
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Yes, there is no law prohibiting a respondent from formulating his issues for determination, but it is settled that a respondent, who has not filed a cross-appeal nor a respondent’s notice to
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affirm the judgment on grounds other than grounds argued by the appellants, have not got an unbridled right or freedom to
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raise issues, which have no relevance to the grounds of appeal.
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See Ibator v. Barakuro (2007) All FWLR (Pt. 371) 1669 SC, (2007) 9 NWLR (Pt. 1040) 475. So, the determining factors are
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the grounds of appeal and not issues formulated therefrom. See A Nwaolisah v. Nwabufoh (2011) All FWLR (Pt. 591) 1438, (2011) LPELR-2115 (SC) and Cowpact Disc Tech. Ltd v. M.C.S.N. (2010) LPELR-4006 (CA), wherein this court observed:
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“Issues for determination raised in a brief of argument B
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must be predicated upon or distilled from valid
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grounds of appeal. A fortiori , although a respondent and indeed an appellate court has the discretion to reframe or reformulate issues for determination in
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an appeal distinct from those raised by parties in C their briefs, such reframed or reformulated issues must be distilled from grounds of appeal filed by parties”.
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It is also settled that where the respondent does not expressly adopt the issue(s) formulated by the appellant and D
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also fails to formulate his own issue(s), this court may hold that he has by implication adopted the issue(s) formulated by the appellant. See Shibkau v. Attorney-General, Zamfara State
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(2010) All FWLR (Pt. 552) 1684, (2010) LPELR 4956 (CA). E
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In this case, the issue formulated by the respondent has nothing to do with the issues formulated by the appellant, and it does not have to adopt, modify and/or reflect the appellant’s
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issue for its issue; it did not concede to the appellant’s issues because it formulated its own and it did not have to formulate F
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the same number of issues or add any of his issues to its own. Besides, the issues for determination in an appeal are not framed to coincide with the number of grounds of appeal filed.
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The issue must arise from one or a combination of grounds of G appeal. See Nwidenyi v. Aleke (1996) 4 NWLR (Pt. 442) 349 and Sakati v. Bako and Anor. (2015) All FWLR (Pt. 800) 1182,
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(2015) LPELR-24739(SC), where the Supreme Court held that “good practice does not command the formulation of an issue from every ground of appeal. H
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In this case, apart from the complaint in ground 8 of the grounds of appeal on jurisdiction and ground 9 on sentence,
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grounds 1-7 complain about the evaluation of evidence done by the lower court and the respondent’s issue simply queries whether based on the evidence adduced by the prosecution, the lower court was right to convict him on the said counts. In my view, the appellant’s issues 1-5 that questions the evaluation of evidence by the lower court can be abridged into,
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whether the lower court was right to find the appellant guilty as charged on counts 1, 2, 5 and 6 and convict him accordingly. The appellant insists that its judgment was not supported by
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evidence to warrant his conviction for the following reasons: It ought to have considered PW1’s agent, Adedayo Falade, as a vital witness since it was in evidence that the said agent midwifed the supposed fraudulent transaction and his testimony at the trial court is not only material but indeed indispensable. It failed to avert its mind to the fact that there was no evidence of movement of funds from the agent to him, rather the only evidence was that PW1 paid the sum of N25,000,000.00 (twenty-five million naira) directly to the said agent, which fund was not traced to his bank account and/or custody. The testimonies of prosecution witnesses regarding the payment of N22,000,000.00 (twenty-two million naira) by the said agent to him is “grossly hearsay
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evidence”.
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Although the prosecution is not bound to call a host of witnesses but the failure to call PW1’s agent (Adedayo Falade) is fatal to its case because any other testimony with respect to the receipt of the said N22,000,000.00 (twenty-two million naira)
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amount to hearsay evidence, which is inadmissible.
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The said agent was said to be at large notwithstanding the fact that there was evidence that he invited security agents to arrest him. That said agent made statements to operatives of
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Economic and Financial Crime Commission and was A
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on the list of witnesses however, he was never called as a witness.
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There was no admissible evidence of his fraudulent
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intention. B
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Pro secu t io n witn esses’ evid ence cann o t b e
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o verwh elmin g when it is o b vio us t hat t h eir testimonies were contradictory/grossly hearsay.
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No direct nexus that can lead to legal inference and/
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or conclusion that he committed the offences for C
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which he was convicted.
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The mens rea and actus reus of the said offences was not proved beyond reasonable doubt by the prosecution, in that there were lots of doubts that
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ought to have been resolved in his favour. D
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Testimonies of prosecution witnesses did not support the charge and evidence relied upon in convicting him is not admissible in law. The essential ingredients of the offences alleged E against him were not proved beyond reasonable doubt. Th e court co nsidered and wrongly relied on
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hypothetical issues, suspicion, speculation and extraneous matters in convicting him. F
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There was no evidence that he met PW1 or designed, muted and held any conference with others, in the presence of the witnesses. There was no direct evidence that linked him to the G crime because PW1 did not pay any money to him but to his agent, and was not present when his agent
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claimed to have paid him the sum of N22,000,000.00 (twenty-two million naira).
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The court did not consider the fact that there was no H
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admissible evidence of how, when and where he met with co-conspirators.
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xvii. Identity of alleged co-conspirators said to be at large were known, but the respondent did not investigate or make reasonable enquiry to the complicity and/or involvement of PW1’s agent, and issues he raised was not investigated so the investigation that led to filing of the information leading to his conviction is
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shoddy and inconclusive.
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The court ought to have presumed in his favour that non-calling of PW1’s agent would have been fatal to the respondent’s case. It relied on irrelevant materials to arrive at a wrong conclusion that there was overwhelming evidence to have warranted his conviction. The judge is enjoined to consider and give effect to the totality of evidence and materials placed before
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him in support of his defence.
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The totality of his defence contains good and substantial reasons why he shoul d have been discharged and acquitted. The trial court went outside the real issues in controversy and made out a case for the prosecution to his own prejudice. He had denied the allegation and had given cogent and compelling reasons for, changing his name, which
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ought to have been given a favourable consideration by the lower court.
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The lower court failed or refused to particularize and/or distill the inconsistency allegedly inherent in his testimony. The only acclaimed eye-witness account as to the receipt of the sum of N22,000,000.00 (twenty-two million naira) was PW1’s agent, who was not called as a witness. There was no evidence that he was physically present when PW1 and his agent visited and inspected the
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property that was allegedly used in defrauding PW1 . A
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Testimonies of PW1 , PW2 and PW3 are inherently contradictory. The testimony as to what transpired between him
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and PW1’s agent is grossly hearsay evidence and B
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consequently not admissible.
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Exhibits PW2, PW3, PW4, PW14, PW15, PW16, PW17 , PW19 and PW20 are not admissible and none of the statements he made qualified as a confessional
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statement and the exhibits are remotely not connected C
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to the offences for which he was convicted.
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The trial court wrongly refused to consider the explanation given by him with respect to why he changed his name and particulars. The trial court relied mainly on suspicion, speculation D
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and irrelevant issues in convicting him on counts 5 and 6.
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Testimonies of PW2 and PW7 are grossly hearsay and ought not to have been considered as a material E rebuttal to his testimony. Exhibits PW6, PW7, PW8 and PW9 were his personal documents, which also serves as testimony to his change of name/particulars. The court relied on extraneous matters and facts F
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that are not before it and consequently was already prejudiced before taking his evidence and reflected the said prejudice in its final decision.
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No member of th e Ogun deji family testified G notwithstanding the fact that their testimony is material to establish his guilt.
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In addition to reasons itemized above, he cited the following: Aigbadion v. State (2000) 7 NWLR (Pt. 666) 686 , (2000) 4 SCNJ 1 (hearsay evidence); Akono v. Nigerian Army H (2000) FWLR (Pt.28) 2212, (2000) 14 NWLR (Pt. 687) 318 (on
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who a vital witness and effect of failure to call same); Aigbadion
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v. State (reliance on suspicion); Nwachukwu v. State (2000) FWLR (Pt.28) 2195, (2000) 12 NWLR (Pt. 680) 128 (on
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treatment of contradictions in prosecution’s evidence); Maigoro v. Bashir (2000) FWLR (Pt.19) 553, (2000) 11 NWLR (Pt. 679)
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453 (on application of section 167 (d) of the Evidence Act);
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Nwachukwu v. State (effect of contradictions); (on treatment of
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contradictions in prosecution’s evidence).
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He argued that the lower court relied merely on suspicion and irrelevant issues not before it; that there was no evidence of
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how, when and where he and the alleged confederates met, nurtured and carried out the said illegal act; and that there was serious contradiction in testimonies of prosecution witnesses that should have been resolved in his favour by the trial court.
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He further submitted that it ought to have presumed in his
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favour that if PW1’s agent had been called as a witness, his
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testimony would have been favorable to his case; that his explanation as to why he changed his name was not considered but treated as lies; that no member of the Ogundeji family was
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called as a witness and no reason was given notwithstanding that they are vital witnesses; that it is trite that the defendant in a criminal trial is not bound to prove his innocence rather the burden of proof rest squarely on the prosecution to prove his guilt with credible evidence pointing irresistibly to his guilt; and parties cannot by consent cause to be admitted in evidence a
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material that is inadmissible, so exhibits P2, P3, P4, P14, P15, P16, P17, P19 and P20 , as it relates to establishing his bad character, are not admissible for the following reasons:
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(a) The exhibits are remotely connected with his case. No nexus with the exhibits to establish receipt of
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funds from PW1 .
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He has given sufficient explanation as to his personal documents. He contends that the lower court relied on extraneous
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matters and inadmissible evidence that is not properly before the court, which led to a miscarriage of the cause of justice.
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The respondent referred to the definition and ingredients A
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of conspiracy, citing Shodiya v. State (1992) 3 NWLR (Pt. 230)
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457; Oduneye v. State (2001) FWLR (Pt.38) 1203, (2001) 2
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NWLR (Pt.697) 311; Njovens v. State (1973) 1 NMLR 331,
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(1973) 5 SC 17 ; Ikemson v. State (1989) 3 NWLR) (Pt. 110) B
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455, (1989) 20 NSCC (Pt. 11) 471; Yakubu v. State (2012) 12
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NWLR (Pt. 131) 187 and submitted that juxtaposing the law with the evidence, the following facts were established against the appellant and the other confederates vis-a-vis conspiracy:
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The 2nd defendant and PW1’s cousin met PW1 at C the International Airport, Ikeja, and introduced the said property to him, claiming that they were authorized to sell same. The 2nd defendant as far back as 2004 had copies
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of the title documents of the property given to him D
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by PW3, the authentic owner of the property, and the lower court found as a fact that it was accessed by the 2nd defendant to copies of the title documents of the property that he and his cohorts used to hatch the E plot.
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The 2nd defendant and PW1’s cousin took PW1 and his agent to a house at Gemade Estate, where they
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introduced the appellant and other members of the syndicate to PW1 and co. as administrators of the F
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Late Ogundeji family, claiming that they had authority to sell.
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The appellant presided over the meeting and passed the title documents to PW1 in the presence of 2nd G defendant and others. The appellant and Co. took PW1 and his agent to the property for inspection but unknown to PW1 , he had
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l ied t h at t he in sp ect io n was fo r secu rin g accommodation for intending lodgers from Abuja. H
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When part-payment of N22,000,000.00 (twenty-two million naira) was made, the appellant took delivery
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at Zenith Bank, Ajao Estate, Ikeja, Lagos and it was the appellant, who received the money from PW1’s agent and deposited his international passport as an acknowledgment for same. (vii) The N22,000,000.00 (twenty-two million naira) was shared by the appellant and his syndicate members
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but he rejected his share of N1,000,000.00 (one million naira) since, in his view, it was too small.
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While sharing the said N22,000,000.00 (twenty-two C million naira), PW1’s cousin felt shortchanged and then leaked the fraudulent plot to PW1 through his
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estate agent.
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When they were arrested by the Military at Zenith Bank, Ajao Estate, Ikeja, Lagos, on the date they went to collect the supposed N10,000,000.00 (ten
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million naira) further payment by PW1 , the appellant went there with PW1’s cousin, and drove to the scene in his Black Honda Accord car with Reg. No. XL
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455-KIA, which was later seized by the military, and fro m wh ich E co n omic an d Fin an cial Crime Commission investigators discovered documents revealing the true identity of the appellant as Pastor Ayodele Adeleye and not Otunba Tiamiyu Seriki that he had been claiming to be. PW1 parted with his money to the appellant and co., yet he did not get the property they claimed they were authorized to sell to him. Its position is that the lower court was right to find that the appellant and others on the run conspired to defraud PW1 and it was in furtherance of same that they took all the steps, citing
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Osuagwa v. State (2009) All FWLR (Pt. 460) 700, (2009) 1
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NWLR (Pt. 11123) 523; Clark v. State (1986) 4 NWLR (Pt. 35)
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381; Yakubu v. State . We were urged to hold that the acts and roles played showed there was a common criminal design or plot to defraud PW1 .
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We were also urged to hold that from the conducts and A activities of the appellant and co. and their actions and roles in the fraudulent scheme, the lower court was right to conclude that they were engaged in accomplishing a common objective,
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conspiracy to obtain money from PW1 under the false pretence B
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that they were authorized to sell the property, when in fact, as
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far back as 1992 that same property had been sold to PW5 , citing Adeyemi v. State (2013) All FWLR (Pt. 708) 891, (2013) 3 NWLR (Pt. 1340) 78; that its evidence on their acts, roles and
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conducts in the conspiracy were not discredited at the trial; that C none of its witnesses was cross-examined on the acts and roles played in furtherance and consummation of the said conspiracy, therefore, its evidence remained unchallenged and admitted by
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the appellant so the trial court and this court are on sure legal ground to act on it; Borishade v. F.R.N (2012) 18 NWLR (Pt. D
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1332) 347; Agbo v. State (2006) All FWLR (Pt. 309) 1380,
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(2006) 6 NWLR (Pt. 977) 545; that its witnesses gave direct evidence of what they saw, heard, did and perceived and if a witness testifies to what he saw, heard or did, it is not hearsay; E Ugwumba v. State (1993) 5 NWLR (Pt. 296) 660, (1993) 6
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SCNJ (Pt. II) 217; that the issue of hearsay or circumstantial evidence was not raised at the lower court and being fresh issues, he ought to have sought and obtained leave to raise and
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argue them for the first time in this court and having failed to F
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o bt ain , h is su bmission s o n th e said issues sh o ul d b e discountenanced. Alake v. State (1991) 7 NWLR (Pt. 205) 567;
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F.J.S.C v. Thomas (2013) 17 NWLR (Pt. 1384) 503; Borishade
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v. F.R.N ; Njoku v. State (2013) All FWLR (Pt. 689) 1072, (2013) G
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2 NWLR (Pt. 1339) 548 cited.
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The appellant complained that the respondent referred to the offences for which he was convicted without linking them to the lower court’s judgment on which this appeal is predicated.
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He argued that the respondent admitted he was not present at the H
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airport when PW1 came to Lagos, rather that 2nd defendant had copies of the title documents given to him by PW3 , which shows
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that there was no direct evidence or legally admissible inference to warrant the conclusion that there was conspiracy between him and 2nd defendant; that what it listed in its brief were not direct evidence but hearsay and it had refused to join issues with him regarding admissibility of the said evidence; that the only eye-witness was not called as a witness and so, its argument,
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which did not flow from the issue he formulated, goes to no issue; that its argument amounts to re-arguing the entire case without linking it to the judgment of the trial court, the grounds
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of appeal, and the issue for of determination; that the said offence of false pretence was not proved beyond reasonable doubt because no member of the Ogundeji family was called as witnesses at the trial court and the said Falade, who is a vital
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witness, was also not called notwithstanding the fact that he
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claimed to have received the money from PW1 in his statement,
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which was not in evidence at the lower court; and the actual amount paid is fundamentally wrong because:
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This appeal is a single appeal, there is no co-
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appellant. The supposed co-appellant did not admit that he was paid or that part of the said N25,000,000.00 (twenty- five million naira) was disbursed to him. There is no evidence at page 406 of the records that suggests any admission by the appellant. The case of Alake v. State relied upon by the respondent is not applicable to this appeal.
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He submitted that he does not need leave to argue an
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omnibus ground of appeal and what we have considered are the following:
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i. Whether or not the grounds of appeal particularly ground one arose from the judgment of the lower court.
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ii. Wh et her or n ot the issu es fo r d et ermination
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particularly, issue one arose from the grounds of appeal. (Ground one)
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iii. Whether or not the argument conversed therein is in A support and/or flows from the issue for determination particularly the treatment of issue one as contained
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in his brief of argument.
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He had lots more to say in his reply brief that are repetitions B
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or rehash of arguments previously canvassed in his main brief,
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which negates the essence of a reply brief. It is settled that a reply brief is not a forum to re-argue the appellant’s brief but to answer new points arising from the respondent’s brief, and the effect of non-compliance is that same will be discountenanced. C See Mozie v. Mbamalu (2006) All FWLR (Pt. 341) 1200, (2006)
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15 NWLR (Pt. 1003) 466 SC, where the Supreme Court, per Tobi JSC, observed as follows:
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“A reply brief, as the name implies is a reply to the respondent’s brief. A reply brief is filed when an D
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issue of law or arguments raised in the respondent’s brief call for a reply. A reply brief should deal with only new points arising from the respondent’s brief.
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In the absence of a new point, a reply brief is otiose E and the court is entitled to discountenance it. A reply brief is not a repair kit to put right any lacuna or error in the appellant’s brief”.
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In this case, one of the new points in the respondent’s brief
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is the question of whether the appellant needs leave of this court F
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to argue the issues of hearsay and circumstantial evidence and I have to agree with the appellant that the issues come within the territory ofground 1 ofthe grounds of appeal, which is an omnibus
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ground of appeal, wherein he complained that the “judgment of G the trial court is unreasonable, unwarranted and cannot be sustained having regards to the weight of evidence”, this is a
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general ground complaining about the whole evidence.
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When an appellant raises such complaint, he means that when his evidence is balanced against that of the respondent, H the judgment in the respondent’s favour is against the weight, which should have been given to the totality of the evidence.
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See Akinlagun v. Oshoboja (2006) All FWLR (Pt. 325) 53, (2006) 12 NWLR (Pt. 993) 60 SC, where the Supreme Court, per Kalgo JSC, stated as follows:
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“An omnibus ground of appeal is a general ground
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of fact complaining against the totality of the evidence adduced at the trial. It is not against a specific finding
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of fact or any document. It cannot be used to raise any issue of law or error in law”.
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In this case, the appellant’s grouse is that the trial court C relied on hearsay evidence, which is inadmissible, in convicting him, and he based this complaint on the fact that PW1’s agent, and no member of the Ogundeji family, were called as witnesses, and that there was no direct evidence to link him to the crimes;
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these are issues easily embraced by the said ground of appeal.
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To resolve the issues, which cuts across the offences charged,
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we must scrutinize all the evidence adduced at the lower court, and assess its evaluation of same vis-a-vis the said offences. PW1 , who is the victim and the key witness, testified that:
-*-
“His cousin, Oluwole Aborishade and the 2nd defendant, met him at the International Airport, to intimate him about a property at No. 8, SamAdegbite close, Victoria Island, which they would like him to buy. They told him “Mr. Ogundeji died, and left two properties and when he died, somebody stood for
-*-
him and spent a lot of money, the person wants to collect his money back and that was why they were looking for somebody d esperately to buy the
-*-
property” PW1 was with his agent, Dayo Falade, at the Airport and he “instructed’ him to “go with them and discuss with them” then he left for Abuja. The
-*-
said agent called him to say that the “price is good and it is in a good location”. At some point his cousin
-*-
called PW1 to say that the said agent was “making
-*-
arrangement that the property goes to another person” and asked him to come to Lagos “as urgently as
-*-
possible”. He did and was told that the “property is A for about N55,000,000.00 (fifty five million naira)” but costs more than N80,000,000.00 (eighty million naira).
-*-
He was advised to meet with members of the B
-*-
Ogundeji, and they went to Ipaja, where he met the
-*-
appellant, who introduced himself as the husband of the sister of the deceased, who put down money towards the property and took the family to court where he got judgment. The appellant produced the C relevant documents, and introduced the others as “the administrators of the house bearing the name”.
-*-
PW1 never suspected that they were impersonating
-*-
because they went to Alausa to get the Certificate of Occupancy and other documents”. He later paid a D
-*-
visit to the property where they met a man, who told him he had rented the property, and would want to be paid since he spent a lot of money. The appellant
-*-
later asked him for part-payment of N25,000,000.00 E (twenty-five million naira). He got a loan from his bank and raised a draft for N25,000,000.00 (twenty- five million naira) in the name of his agent, who later informed PW1 that his cousin had told him that “the
-*-
whole thing was a fake arrangement”. PW1 told his F
-*-
agent that he was “in trouble” and should make sure his money is recovered. His agent contacted Military Intelligence and arranged with the appellant, the 2nd
-*-
defendant and PW1’s cousin to collect some more G money from him. The three of them were arrested and taken to the office of the Military Intelligence,
-*-
and the case was later transferred to EFCC. They found out that it was true that there was a man called Ogundeji, who died and had a sister married to Seriki, H who spent money on the property, and took the family
-*-
to court and got judgment. His agent told PW1 that
-*-
he was going to Ireland with his wife and he never saw him again. According to PW2 , by a letter dated 31 March 2006, addressed to the chairman of the Economic and Financial Crime Commission and signed by Lt. Col. Olajide ( exhibit P1 ), the appellant, 2nd defendant and PW1’s cousin were handed over
-*-
to EFCC. They were later referred to his team. The Lt. Col. informed him that they were arrested at Zenith Bank by his men and they recovered a Honda
-*-
Accord car from the appellant. The search of his car revealed his true identity as Pastor A. A. Adeleye, while the documents of the car showed it was bought t wo days after t h e su m o bt ained was p aid .
-*-
Documents recovered in the said car admitted as
-*-
(e xhibits P6-P9 ). The visit to the address located
-*-
his family, though he denied his family, his mother, who was there, admitted that the appellant was her son. Search warrant executed on his residence
-*-
admitted as ( exhibit P10 ). According to PW3, Lt. Col. Olajide brought the appellant and others to his hotel, and introduced the appellant “as the landlord of the house” and the 2nd defendant as “the agent, who is supposed to negotiate the sale of that (his) house”. He told the Col., there was nothing like that.
-*-
He acknowledged he had seen them with his manager, and after they had left, his manager, PW4 , told him they came to negotiate 10 rooms in the hotel for 6
-*-
months. He denied instructing them to sell his house and explained that his title documents had been with his bankers. According to PW4 , the appellant and
-*-
2nd defendant “came to ask for the tariff that they were expecting 10 people from Abuja to lodge in the
-*-
hotel” and he took them round to see the facilities.
-*-
They came a second time for the same thing, and asked for a reduction in the price. The third time he
-*-
saw them was when they came to the hotel with a Lt. A Col, who asked to see PW3 , and when they saw PW3 , it turned out that they had purportedly sold the property claiming to be the owners.
-*-
- PW5 , the authentic Otunba Babatunde Tiamiyu B
-*-
Seriki, bought the property from late Mr. Ogundeji,
-*-
and later sold it to o ne Mr. Cole. When the administrators were proving difficult, he obtained a court order against them. He was aware of subsequent sales of the property up to that to PW3 . He never C knew PW1 and it was at the office of the EFCC that
-*-
he met the appellant, who had been impersonating him.
-*-
- PW6 recovered 2 certificates of occupancy from PW1’s agent, and PW3 , which she forwarded to D
-*-
the Lago s St ate Land Registry, Alausa. They responded ( exhibit P11 ) that the one from PW3 was genuine ( exhibit P12 ) and the one from PW1’s agent was fake ( exhibit P13). E
-*-
- PW7 confirmed that the defendants, including
-*-
the appellant, were brought to the office of the EFCC by a Military officer via exhibit PW1 . They went to his stated address, and found it was not his residence.
-*-
They visited his authentic address, where they met F
-*-
his wife, children and mother, and discovered that his real name, as confirmed by his family and several documents, was actually Pastor Adekunle Adeleye
-*-
and not Otunba Tiamiyu Seriki. The appellant G
-*-
admitted this was his real name and made a statement
-*-
to that effect. The authentic Otunba Seriki, PW5 , came in to make a statement to EFCC as well as
-*-
PW3 . PW7 identified exhibits P5 and P10 as the executed search warrants, and the statements made H under caution by the appellant was admitted as
-*-
( exhibits P14 - P17 ), while the N2, 250,000 (two
-*-
million, two hundred and fifty thousand naira) recovered from them by Lt. Col. Olajide of Military Intelligence, was admitted as exhibit P18 . PW8 , who is Dayo Falade’s business partner confirmed that PW1’s cheque of N25,000,000.00 (twenty-five million naira) was cleared through their
-*-
company’s account, and that it was used to pay the property vendors, whom he had never met.
-*-
PW9 confirmed PW1 issued a cheque of
-*-
N25,000,000.00 (twenty-five million naira) in PW1’s company, while PW8 issued cheques to cover the said amount in Falade’s name. She recorded two statements by the 2nd defendant ( exhibits 19 and
-*-
20) when he refunded the sums N200, 000 (two
-*-
hundred thousand naira) and N30, 000 (thirty
-*-
thousand naira) ( exhibit P21 ).
-*-
As DW1 , the appellant gave his name as “Tiamiyu Adekunle Adeleye Sheriff Seriki”, who married into the Ogundeji
-*-
family and they instructed him to sell the property. He got offers for the property, including from Dayo Falade, who acted for PW1. Though he married into the family, he sat them down and they agreed on 10% as his fees. They tried to pay him a lesser sum, which he rejected and was told to await the expected balance from PW1 , which is what he was doing when he was arrested.
-*-
Under cross-examination by the 2nd defendant’s counsel, he denied selling property or taking money from PW1’s agent, and when asked about his in-laws, Ogundeji family, he said he
-*-
took EFCC to their premises but EFCC refused to arrest them. Under cross-examination by counsel for the prosecution,
-*-
he explained that his name is Tiamiyu Adekunle Adeleye Seriki, however, he had converted to christianity and dropped his muslim names and became Pastor Adekunle Ayodele Adeleye, although
-*-
at birth he was given the name Tiamiyu Sheriff Seriki.
-*-
The offence in count 1 is conspiracy to obtain money by false pretences, contrary to section 8(a) and 1(3) of the Advance
-*-
Fee Fraud and Other Fraud Related Offences Act, (as amended) A and as the lower court noted, since the offence is conspiracy to obtain money by false pretence, section 8(a) and 1(3) of the Act must be read with section 1(1), which creates the offence of
-*-
obtaining by false pretence. Section 1(1) of the Act provides: B
-*-
“Notwithstanding anything contained in any other
-*-
enactment or law, any person who by any false pretence, and with intent to defraud:
-*-
Obtains from any other person, in Nigeria or in any other country, for himself or any other C person; Induces any other person, in Nigeria or in any other country, to deliver to any person; or Obtains any property, whether or not the property is obtained or its delivery is induced D
-*-
through the medium of a contract induced by the false pretence, commits an offence under this Act”.
-*-
Sub-section (3) of section 1 of the Act (as amended) says: E
-*-
“A person who commits an offence under subsection
-*-
(1) and (2) is liable on conviction to imprisonment for a term of not more than 20 and not less than 7 years without option of a fine”.
-*-
Section 8(a) of the said Act (as amended) provides as F
-*-
follows:
-*-
“A person who conspires with, aids, abets or counsels any other person to commit an offence under this Act, commits the offence and is liable on conviction G to the same punishment as is prescribed for that
-*-
offence under this Act.”
-*-
The lower court concluded as follow on conspiracy itself: “The 2nd defendant introduced the property to one Olu Aborisade, a relation of PW1. The said Olu H Aborisade linked the 2nd defendant with PW1, his relation. The 2nd defendant subsequently took PW1
-*-
and his agent to a meeting where (appellant) held himself out to be Otunba Tiamiyu Seriki. At the said meeting were other personalities claiming to be the administrators of the estate of late Ogundeji. PW1 related with the 2nd defendants and those they acted with believing he was dealing with the authentic
-*-
owners of the (said) property. PW4 gave evidence that (they) made to him that they intended lodging some guests in the hotel and needed to inspect the
-*-
premises. This clarified how PW1 was conducted round the property without raising eyebrows. Before the court, (appellant) tried to justify his claim to the name Otunba Tiamiyu Seriki although he had no
-*-
document showing he was so named. It was obvious
-*-
that he lied. In exhibit P14, one of his extra-judicial
-*-
statements, he stated: “I know Otunba Seriki and also know that he has took the family to court over the property the matter have been settled at the court.
-*-
I do not know the time the matter went to court, as at the time the matter went to court, I have not married my wife.” From exhibits P6 , his driver’s licence, P7 , his complimentary card, P8 , his house rent receipt and P9 , his church identity card; it is incontrovertible that the appellant’s real identity is Pastor Adekunle
-*-
Ayodele Adeleye. The premises where the meeting with PW1 was held which the (appellant) claimed as his residence turned out to have been rented out to a
-*-
certain Okechukwu Ogbu, a man twice convicted by this court for various counts of obtaining by false pretences and related fraud offences. Documents
-*-
found in his car showed his real residence where his family including his mother was found. PW2 and
-*-
PW3 gave a clue as to the origin of the criminal
-*-
design here indicating an earlier meeting by the 2nd defendant with PW3 when he wanted to sell his said
-*-
property. It is not far-fetched to observe that latching A on to the historical background of PW3’s root of title, (they) developed their plot. The testimony of PW1’s agent, Dayo Falade, is not so crucial after all.
-*-
PW1 had direct evidence to give and defendants were B
-*-
not lacking either in their extra-judicial statements
-*-
exhibits P2 , P3, P4, P14, P15, P16, P17, P19 and
-*-
P20 wherein they added flesh to whatever PWI was unable to state. I do not find it difficult from the overwhelming evidence presented to conclude that C the defendants together with their confederates on the run acted with common intention to defraud PW1
-*-
as alleged in count 1 and find them guilty as charged
-*-
in respect thereof”.
-*-
It held on count 2, obtaining money by false pretences , D
-*-
“The prosecution must establish that there was a pretence, that the pretence emanated from the defendants, that the said pretence is false, that the E defendants knew of the falsity or did not believe in
-*-
its truth, that there is an intention to defraud, that the thing is capable of being stolen and that the defendants induced the owner to transfer his whole interest in
-*-
the property. The substance of the allegation was F
-*-
that the defendants acting with those said to be at large obtained the sum of N22,000,000.00 (twenty- two million naira) from PW1 through one Adedayo Falade, as part payment for the purchase of (the said G property) by falsely representing to PW1 that they
-*-
were authorized to sell the property by the owner, which representations they knew to be false. The
-*-
owner was PW3 who was unequivocal that he did not instruct the defendants to sell his property and H that his original title document was with his bankers
-*-
as security for a loan he obtained. PW4 gave evidence
-*-
showing that the defendants approached him that they were interested in lodging guests in the hotel upon which he allowed them inspect the property not being aware of their main fraudulent intention. PW5 showed beyond doubt that he was the authentic Otunba Tiamiyu Seriki who had something to do with the
-*-
property thereby putting the fake posture of the appellant beyond doubt. PW1 met both defendants and representations were made to him by each that
-*-
they had proper authority to sell, PW1 narrated how he parted with N25,000,000.00 (twenty-five million naira), which was corroborated by the appellant in e xhibit P14 . In the same exhibit P14 , the (appellant)
-*-
narrated how PW1’s agent gave N22,000,000.00
-*-
(twenty-two million naira) to his group, which was
-*-
shared in the premises he claimed as his, which premises PW2 found out was rented by a fraudster twice convicted by this court. The testimonies given
-*-
by PW2, PW7 and PW9 of their investigation were corroborated by PW8 through whose account the said money was cleared. All these pieces of evidence render the expected testimony of Dayo Falade alluded to by the defence counsel as being indispensable, actually superfluous. The adduced evidence shows
-*-
the fraudulent intention of the defendants. I reject the testimonies of the defendants as tissues of lies meant to deceive the court. Each one of them gave
-*-
contradictory self-serving testimonies. I am satisfied that the prosecution has proved beyond reasonable doubt that the defendants acting with others said to
-*-
be at large did obtain the sum of N22,000,000.00 (twenty-two million naira) from PW1 under the false
-*-
representation that they had authority of the owner
-*-
of the said property. I therefore, find the defendants guilty as charged in respect of count 2”.
-*-
It found the appellant not guilty in respect of counts 3 and A
-*-
4 and further held as follows on counts 5 and 6 for impersonation: “Counts 5 and 6 are against the appellant for impersonation contrary to section 484 of the Criminal
-*-
Code Law, Cap. C17, Vol. 11, Laws of Lagos State B
-*-
of Nigeria, 2003. The statutory provisions are as
-*-
follows:
-*-
“Any person who, with intent to defraud any person, falsely represents himself to be some other person, living or dead, is guilty of a felony C and is liable to imprisonment for three years. If the representation is that the offender is a person entitled by will or operation of law to any specific property and he commits the offence
-*-
to obtain such property or possession thereof, D
-*-
he is liable to imprisonment for fourteen years...”
-*-
To succeed, the prosecution must show that the (appellant) represented himself to be some other E person living or dead and that he did so with the intention to defraud some person. The evidence of PW1 was that as alleged in count 5, the appellant at
-*-
a meeting with him represented himself to be Otunba Tiamiyu Seriki and proceeded to narrate lies of how F
-*-
he became entitled to sell the said property which eventually led to PW1 being defrauded of the sum of N25,000,000.00 (twenty-five million naira). PW7
-*-
also narrated a similar encounter with the (appellant) G as alleged in count 6. Before the court, PW5 , a legal practitioner of many years standing introduced
-*-
himself as the authentic bearer of that name who previously owned the said property and who had an encounter with the Ogundeji family. The appellant H tried to justify his entitlement to that name but could not authenticate his claim. His explanations were
-*-
puerile and incredibly shallow. He contradicted himself effortlessly thereby exposing the falsity of his assertions. The appellant’s driver’s licence, exh ib it P6 , wh ich carry h is p ho t ograph , complimentary card, exhibit P7 , house rent receipt,
-*-
exhibit P8 and church identification card, exhibit
-*-
P9 , which also carry his photograph, all showed that his real identity was Pastor Adekunle Ayodele Adeleye. Further corroboration was provided by the
-*-
testimonies of PW2 and PW7 on their respective investigations and encounters with the (appellant)’s wife, children and mother. I therefore hold that the prosecution has proved counts 5 and 6 beyond
-*-
reasonable doubt against the (appellant) and I
-*-
accordingly find him guilty on each of the said counts
-*-
5 and 6 respectively. In totality, I find the (appellant) guilty on counts 1, 2, 5 and 6 and I convict him as charged on the said counts”
-*-
The appellant’s complaint in this appeal centers on the “failure” of the prosecution to call PW1’s agent as one of its witnesses. It is his contention that the said PW1’s agent is a vital witness and the prosecution’s failure to call him is fatal to its case. Yes, a vital witness is a witness, whose evidence may determine a case one way or the other, and it is well settled that
-*-
the failure to call a vital witness is fatal to the prosecution’s case. See Akono v. Nigerian Army . But he also conceded that the prosecution is not obliged to call all available witnesses to
-*-
prove its case in a criminal trial, which is true. The prosecution is only bound to call witnesses that know something significant about a matter. It is only where it fails to call such a witness that
-*-
a presumption may arise that his evidence, if called, would be unfavourable to the prosecution. See Ayeni v. State (2011) LPELR-
-*-
4380(CA), wherein it is observed as follows:
-*-
“Section 149(d) (section 167(d) of the Evidence Act, 2011, is therefore, not concerned with failure to call
-*-
a particular witness. It only applies where a party A withheld evidence. Thus, where a party has called other evidence on an issue, failure to call a particular witness to give evidence on that piece of evidence
-*-
will not raise the presumption. It follows that no law B
-*-
imposes an obligation on the prosecution to call host
-*-
of witnesses to prove its case. This is because it is the sole responsibility of the prosecution to prove its case beyond reasonable doubt as the burden of
-*-
proof cast on the prosecution must be satisfied by C calling credible or material witnesses. In calling such witnesses, the prosecution has a discretion in the matter. Accordingly, once the prosecution has been
-*-
able to discharge the burden cast on it by law, it does not matter that a particular witness was not D
-*-
called to give evidence. In any case, where an accused person discovers that the evidence of a particular witness is very vital or essential to his defence, it is for the accused to call him. It should E not sit tight and wait on the prosecution to call such witness since the prosecution is not expected to also conduct the defence of the case for the accused”.
-*-
In this case, I cannot see or envisage what PW1’s agent could add or subtract from the evidence adduced by the F
-*-
prosecution against the appellant that would make any difference, if called. His agent may have played a key role in negotiating the deal, and paying out money to the appellant and his co-
-*-
conspirators, but he was acting on PW1’s instruction and it was G his money that was involved in the deal that turned out to be fraudulent. PW1 was not just a passive client; he actively
-*-
participated in the process, albeit a fake one, from the beginning to the end.
-*-
He was targeted by his cousin, who took the 2nd defendant H
-*-
to meet PW1 at the airport. PW1 opted to consider the deal, and he asked his agent, who was there with him at the airport, to look
-*-
into the details. When his cousin wanted to push things by telling PW1 his agent was up to no good, he came to Lagos, met with the appellant and his cohorts somewhere in Ipaja and physically went with them to see the said property himself, which the said agent had been advising him about before then. PW1 testified himself about all these things and steps taken at every turn
-*-
while being played by the appellant and his cohorts, what else could the said agent have said that could be clearer?
-*-
The money part is clear and nothing else need be added. C There is evidence without a doubt that PW1 paid N25,000,000.00 (twenty-five million naira) into his agent’s company’s account, and the agent’s business partner, PW8 , signed the cheques to make the withdrawals including N22,000,000.00 (twenty-two
-*-
million naira) that was given to the Appellant and his co-
-*-
conspirators. If PW1’s agent kept N3,000,000.00 (three million
-*-
naira) as his fees, that is a different thing; the main thing is that he is not a vital witness regarding N22,000,000.00 (twenty-two million naira).
-*-
The appellant’s contention is that the lower court ought to have presumed that if PW1’s agent, who allegedly midwifed the said transaction, had been called as a prosecution witness; his testimony in court would have been in his favour. However, the lower court disagreed with him, and concluded as follows: “Contrary to (his) submissions, the testimony of
-*-
PW1’s agent, Dayo Falade, is not so crucial after all. PW1 had direct evidence to give and the defendants were not lacking either in their extra-judicial
-*-
statements, exhibits P2, P3, P4, P14 , P15, P16, P17, P19 and P20, wherein they added flesh to whatever PW1 was unable to state. I do not find it difficult
-*-
from the overwhelming evidence presented to conclude that the defendants together with their
-*-
confederates on the run acted with common intention
-*-
to defraud PW1 as alleged in count 1 and find them guilty as charged in respect thereof”.
-*-
The appellant has argued that the respondent did not present A overwhelming evidence to sufficiently link him to the crime and warrant his conviction having regard to materials it placed at the trial court, and questions begging for answers are: what are
-*-
these overwhelming evidence? Is it the hearsay evidence? He B
-*-
submitted that there was no evidence of his meeting with the
-*-
others, and the circumstantial evidence did not directly link him to have inferred that he and the others met and conspired; that there was also no direct evidence of any meeting between him
-*-
and PW1’s agent, who was not charged along with him; and that C testimonies of the prosecution witnesses are grossly hearsay evidence, in that none of them gave direct evidence on how, when and where the N25,000,000.00 (twenty-five million naira)
-*-
supposedly paid by PW1 to his agent was disbursed, no evidence
-*-
of his receipt of the funds, which never traced to him and there D
-*-
was no evidence of his meeting with the others to have inferred conspiracy.
-*-
He further argued that exhibits P2, P3, P4, P14, P15, P16, P17, P19 and P20 referred to by the lower court are not E admissible and that none of the statements he made qualified as
-*-
a confessional statement and the said exhibits are remotely not connected to the offences for which he had been convicted. It is trite that an accused person’s statement to the police is evidence
-*-
of the fact that it was made but being an extra-judicial statement, F
-*-
it is not evidence of the truth of its contents. See Suberu v. State
-*-
(2010) All FWLR (Pt. 520) 1263, (2010) 8 NWLR (Pt. 1197)
-*-
586 SC and Sanusi v. The State (1984) 10 SC 166, wherein the Supreme Court, per Oputa JSC, further explained as follows: G
-*-
“A review of the authorities will confirm that at best,
-*-
the prosecution will tender the statement of an accused person as a res as something that the
-*-
Investigation Police Officer obtained during his investigation. It is then open to the trial court to H consider that statement (along with other available
-*-
evidence) accepting or rejecting it before coming to
-*-
a decision. In Subramaniam v. Public Prosecutor (1956) 1 NMLR 956, the necessary distinction was drawn between tendering an accused person’s statement as proof of the fact that it was made and tendering same as proof of the truth of its contents. It is my humble view that when the prosecution
-*-
tenders the statement of an accused person, they tender same only as proof that a statement was made and not as proof of the truth of its contents. And that
-*-
is why it is open to the accused to deny or confirm and affirm the said statement or else to admit the making of it but attack it on grounds of it not being voluntarily made”.
-*-
Even if an accused admits in his statement that he
-*-
committed the crime, the prosecution is still not relieved of the
-*-
burden of proving its case beyond reasonable doubt. See Madu v. State (2012) All FWLR (Pt. 641) 1416, (2012) LPELR
-*-
7867(SC), wherein Adekeye JSC, observed that:
-*-
“The prosecution has the burden to prove the guilt of an accused beyond reasonable doubt, regardless of the plea of the accused or where he admitted the commission of the crime in his statement to the police...”. Thus, the prosecution must prove the appellant’s guilt
-*-
beyond reasonable doubt”, which is the “doubt that prevents one from being firmly convinced of a defendant’s guilt or the belief that there is a real possibility that the defendant is not
-*-
guilty”. See Black’s Law Dictionary, 9th Edition, where it was further explained:
-*-
“It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they
-*-
cannot say they feel an abiding conviction, to a moral
-*-
certainty of the truth of the charge” - per Lemuel Shaw J., Commonwealth v. Webster 59 Mass. (5
-*-
Cush) 295, 320 (1850). A
-*-
In otherwords, beyond reasonable doubt is the standard used to determine whether an accused person is guilty, and it stems out of the compelling presumption of innocence inherent
-*-
in our adversary system of criminal justice. See Bakare v. The B
-*-
State (1987) 1 NWLR (Pt. 52) 579, (1987) 3 SC 1, wherein
-*-
Oputa JSC, further observed:
-*-
“Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just C what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree
-*-
of probability. As Denning, J. (as he then was)
-*-
observed in Miller v. Minister of Pensions (1947) 2 All ER 373: “The law would fail to protect the D
-*-
community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence E ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”.
-*-
In this case, it must be said that the appellant is faced with
-*-
an uphill task because findings on primary facts are exclusively within the province of a trial court and there is a presumption F
-*-
that its findings are right and correct until contrary is shown. Thus, its findings are entitled to respect by this court when it is clear that the trial court has performed its own primary duty of evaluating and ascribing probative values to evidence properly. G
-*-
The duty of this court to interfere with improper findings
-*-
or correct erroneous conclusions, would only arise where a trial court has failed to properly examine and evaluate the evidence before it. See Sanni v. State (1993) 4 NWLR (Pt. 285) 99 and
-*-
Nwankwoala v. State (2005) All FWLR (Pt. 266) 1280, (2005) H
-*-
12 NWLR (Pt. 940) 637.
-*-
But that is not to say that this court will ignore the burden
-*-
on the prosecution to prove his guilt beyond reasonable doubt. If at the end of the trial and on the totality of the evidence adduced at trial, a reasonable doubt is created, the prosecution would have failed to discharge the onus on it to prove his guilt and he will thus, be entitled to an acquittal. In otherwords, if upon the evaluation of the totality of the evidence adduced,
-*-
there is a reasonable doubt about the guilt of the accused, the court has a duty to resolve that doubt in favour of the accused. In this case, the lower court found the appellant guilty of
-*-
conspiracy to obtain money by false pretences and conspiracy, which is a separate offence from the crime, that is, its object is “an agreement by two or more persons to commit an unlawful act coupled with intent to achieve the agreement’s objective”.
-*-
See Black’s Law Dictionary, 9th Edition and Shodiya v. The
-*-
State , wherein Tobi JCA (as he then was), explained that:
-*-
“Legally, conspiracy simply means the meeting of two or more minds to carry out an unlawful purpose or to carry out a lawful purpose in an unlawful way.
-*-
In effect, the purpose of the meeting of the two or more minds is to commit an offence. While the law does not require the physical meeting of the minds in a pre-determined or known place, as the offence of conspiracy could be committed by written communication, the prosecution must establish that
-*-
the criminal minds really met somewhere to hatch a crime...”
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The gist of the offence of conspiracy is the meeting of G minds of the conspirators. See Patrick Njovens v. The State (supra). In this case, the prosecution presented a powerful case
-*-
to show that appellant, 2nd defendant, PW1’s cousin, Olu Aborishade and others on the run, conspired to obtain a sum of N22,000,000.00 (twenty-two million naira) from PW1 by false
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H pretences. PW1 , who is the victim of the crime, testified himself
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and narrated the sequence of events that led to his being defrauded by the said conspirators and there is no question that the lower
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court accepted his account of events. A
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In its view, PW1 gave direct evidence of what transpired, which when added to the appellant’s extra-judicial statements, provided “overwhelming evidence” to warrant a “guilty” verdict.
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I cannot agree more, and without mincing words, I will say that B
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the lower court’s decision is very sound, just and impeccable.
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To hold the contrary would be to close our eyes to the obvious; there is nothing in his statements that exculpates the appellant and even if statements he made are swept under the carpet, there
-*-
is enough evidence standing in the room to convict him. C
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Take the offence of impersonation, he claimed he is “Tiamiyu Adekunle Adeleye Sheriff Seriki”; but the prosecution called PW5, the real “Otunba Babatunde Tiamiyu Seriki”, who was involved with the Ogundeji family and the property; he
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stated: D
-*-
“I met him on 10 May 2006 at the premises of the EFCC. So when I met the (appellant), somebody asked him please repeat your names; he said he was Otunba Babatunde Seriki. I became furious. So I E asked him what is the name of your wife, he said he normally calls her Alhaja then I asked him what is her full name, he could not answer, I was so upset”.
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PW2 also testified that the appellant had denied his family but his mother said he was her son and gave them his real name. F
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I could go on and on about the damning evidence adduced by the prosecution against the appellant but suffice it to say that the prosecution proved its case beyond reasonable doubt, and it was left to the appellant to render sufficient explanation as to G why he should not be found guilty in the circumstances, which
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brings us to his contention that no member of Ogundeji family was called as a prosecution witnesses. He argued that:
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“No reason was given notwithstanding the fact that they are vital witnesses and their testimonies are H materially crucial to respondent’s case to have
-*-
sustained his conviction, this is because the Ogundeji
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family are the original owners of the property, which he claimed to have obtained their consent to sell the property”.
-*-
His cross-examination by the 2nd defendant’s counsel
-*-
reads:
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Q : This Ogundeji, you said they are your in-laws, where
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are they?
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A : In actual fact, I took EFCC to their premises, and so far so good, they saw them, they are still alive.
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Q : EFCC know where they are?
-*-
A : Yes
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Q : They refuse to arrest them?
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A : That is their job, like Falade came to EFCC, till date nobody knows his whereabouts, also the EFCC saw
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the family and they refuse to arrest them knowing
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they are p art of this matter. Much about the investigation I don’t know much about.
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As I said earlier, the prosecution is under no obligation to E call a host of witnesses to prove its case. It has discretion to call any witness it considers important, and once it has proved its case beyond reasonable doubt, it fails to matter whether a particular witness was not called. More importantly, where the accused thinks the witness is important for his case, he should
-*-
call him. “He should not sit tight and wait on the prosecution to
-*-
call such a witness since the prosecution is not expected to also conduct the defence of accused’s case. See Ayeni v. State . In this case, if the appellant felt so strongly about the Ogundeji
-*-
family being witnesses, he ought to have called them himself.
-*-
This issue is therefore resolved against the appellant. The
-*-
next issue, which was not canvassed at the lower court, touches on jurisdiction and it is the appellant’s contention that the lower court had no jurisdiction to try, let alone convict him as the 3rd
-*-
amended information was signed for and on behalf of the
-*-
“chairman” of EFCC and not for and on behalf of EFCC. As is expected, both sides took opposing view and they both had a lot
-*-
to say on the subject. But this is a criminal matter, and we A
-*-
cannot afford the luxury of going on an academic trip.
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As I was writing this judgment, I came across The State v. Obasi (1998) LPELR -6165(CA), wherein Akpabio JCA, said:
-*-
“I feel obliged to mention a point of law about the B
-*-
correct procedure for challenging the validity of
-*-
information, which though not raised by either party in their brief, I consider to be sufficiently important to be raised by this court suo motu in the interest of
-*-
future generations of lawyers in the country, and that C is that where an accused person perceives that an indictment or information is incurably defective, he should properly file a motion to have the information
-*-
quashed before plea is taken. It was wrong for the learned counsel for the respondents to wait for the D
-*-
plea of the respondents to be taken and for case of the prosecution to be commenced and concluded before raising his objection against the competence
-*-
of the information in the course of making his “no- E
-*-
case submission” orally, and not even by motion. The objection was not properly made, and so should have been ignored or refused by the learned trial
-*-
judge”.
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I am sufficiently guided, and feel very strongly that it would F
-*-
be preposterous and foolhardy to affirm the appellant’s conviction, and turn round to say that even if he did not object at the trial, the 3rd amended information on which his trial was conducted was defective; therefore, he will be discharged and acquitted. G This is a criminal appeal and as the respondent pointed out, he
-*-
did not raise it at the trial court and he cannot raise it here.
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The last issue relates to sentencing and he contends that sentence of 12 years imprisonment imposed by the trial court
-*-
“is rather excessive in the circumstance”, especially as there is H
-*-
no evidence that he had a previous conviction prior to this one, and he has a good criminal record. The respondent, however,
-*-
argued that under the law on which the appellant was charged, the sentence imposed was the statutory minima the trial court could impose without discretion. The appellant countered that: “The respondent cannot by way of legal argument enlarge or curtail the glaring provisions of the laws under which he was convicted and sentenced to 12
-*-
years by falsely claiming in his brief of argument that the minimum prescribed punishment is 12 years, that is, a serious attempt to grossly mislead this court
-*-
because the minimum terms prescribed by the law is 7 years imprisonment”.
-*-
Sentencing is now, more or less, a science and quite a number of principles have been laid down as guidelines. The
-*-
trial judge is bound to consider the seriousness of the offence
-*-
charged; prevalence of the offence in the area; remorse shown
-*-
by the convict; whether or not the convict is a first offender; and the prevailing attitude of the populace to the offence of that kind. See Onyilokwu v. Commissioner of Police (1981) 2 NLR
-*-
49. In this case, the lower court categorically said while passing sentence that:
-*-
“I have considered the submissions of learned counsel for all the sides. While the circumstances of the defendants deserve sympathetic consideration, the
-*-
plight of the victim must not be overlooked. The
-*-
court must also be alive to its responsibility to society to constantly send out the message that crime does not pay”.
-*-
The appellant had been convicted for the offences of conspiracy to obtain money and the obtaining of money by false pretence and was liable “to imprisonment for a term of not more
-*-
than 20 years and not less than seven years without the option of fine”.
-*-
In sentencing him to a term of 12 years imprisonment without
-*-
the option of fine, the lower court considered the plight of the victim and there is absolutely nothing wrong with that, however,
-*-
on the other side of the divide, is its mandate by law to consider A any mitigating circumstances in favour of a convict, particularly that he is a first offender. See Tanko v. State (2009) All FWLR (Pt. 456) 1977, (2009) 4 NWLR (Pt. 1131) 430, wherein Aderemi
-*-
JSC stated: B
-*-
“Where the sentence prescribed upon conviction in
-*-
a criminal charge is a term of years of imprisonment, then some extenuating facts such as the age of the convict, whether he is a first offender, etc, can be taken into consideration by the trial judge in passing C sentence on the convict. Indeed, the trial judge has the discretion to employ these factors to reduce the years of sentence”.
-*-
In this case, I agree with the appellant that the lower court ought to have considered the fact that he was a first offender. D
-*-
See Alake v. State (1991) 7 NWLR (Pt. 205) 567. As it is, this court has the jurisdiction to reduce a sentence if it finds evidence of mitigating circumstances in favour of the appellant. See
-*-
Agbanyi v. The State (1995) 1 NWLR (Pt. 369) 1. E
-*-
Thus, the appeal is allowed in part. I affirm the conviction of the appellant but the sentence is reduced from 12 years to 7 years imprisonment without option of fine, to run concurrently
-*-
with the discount in the computation given by the lower court.
-*-
IKYEGH JCA: I am in agreement with the thorough judgment prepared by my learned brother, Amina Adamu Augie JCA, (CON), which I hereby adopt as my judgment with nothing useful G to add.
-*-
TUKUR JCA: I had the opportunity of reading before today, the lead judgment just delivered by my learned brother, Amina H Adamu Augie JCA (PJ) and I agree with the reasoning and conclusions contained therein.
-*-
All FWLR Adeleye v. F. R. N. (Tukur JCA) 365
-*-
A I adopt the judgment as mine with nothing useful to add.
-*-
Appeal allowed in part
