MONDAY v. FRN (2020)

MONDAY v. FRN

(2020)LCN/14713(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Wednesday, November 04, 2020

CA/E/643C/2014

RATIO

CONSPIRACY: MEANING AND NATURE OF CONSPIRACY

Conspiracy basically, is an agreement between two or more person to carry out an unlawful act. It may be committed without the substantive offence being made out, while a conviction for the substantive offence would not necessary justify the inference of conspiracy if the facts do not exist. Charging the two together does not therefore amount to duplicity as was submitted for the Appellant. Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. See AGUGUA VS. STATE (2017) LPELR-42021(SC) at 13 and OSETOLA & ANOR VS. STATE (2012) LPELR-9348(SC) and SULE VS. STATE (2009) LPELR-3125(SC). PER KAYODE OYEWOLE, J.C.A.
CRIMINAL PROCEDURE: ATTITUDE OF THE COURT TO THE DEPRECATION OF THE PRACTICE OF LUMPING TWO COUNTS

The deprecation of the practice of lumping the two counts together stated in CLARK VS STATE (supra) and BALOGUN VS A.G. OGUN STATE (2002) 6 NWLR (PT 763) 521 at 533, was clarified by the Supreme Court as not to be stretched to a general rule. GALADIMA, JSC observed on the subject thus:
This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the Court.
See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in lie Nigerian case of CLARK v. STATE (SUPRA).

See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970 . This proposition is good if there will be clogging of otherwise simple trial with a count of complicated conspiracy, especially when there is no independent evidence of conspiracy. This is the merit of this proposition of the law. It should not be over-stressed or stretched to a ridiculous elasticity. I agree with the stance of the Court below on the point when it held on page 190 of the record, while relying on the cases of CLARK v. STATE (Supra) and SULE v. THE STATE (2009) 17 NWLR (Pt.1169) 33 thus:
“That position of law is eminently suitable ( sic). This is because in a charge of conspiracy to commit on (sic) offence such as armed robbery, even although a separate offence from armed robbery, where the facts are intricately interwoven the Courts are enjoined to the deal with the main offence first, since, if the substantive offence is unproven; the case for conspiracy is (sic) such circumstances collapses.” PER KAYODE OYEWOLE, J.C.A.
EVIDENCE: IMPLICATION OF WRONGFUL ADMISSION OF EVIDENCE ON THE DECISION MADE

Furthermore, Section 251 (1) of the 2011 Act provides that-the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. The wrongful admission of the said exhibit M series of documents could therefore not be a basis for setting aside the judgment of the trial Court. See IFARAMOYE VS. STATE (2017) LPELR-42031(SC). PER KAYODE OYEWOLE, J.C.A.

EVIDENCE: NATURE OF EVIDENCE AMOUNTING TO HEARSAY

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Joseph Olubunmi Kayode Oyewole Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

AGHA MONDAY APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Enugu Judicial Division, sitting in Enugu delivered on the 17th January, 2014 by SHUAIBU J. as he then was.
The Appellant was arraigned before the trial Court on four counts of offences under the Advance Fee Fraud and other Fraud Related Offences Act, 2006, to which he pleaded not guilty. The said counts are as follows:
COUNT ONE
That you Agha Monday, Engr. Chris Ezea, (at large) Nwadike aka Papa (at large) and Engr. Benson Banigo (at large) on or about 11th August, 2012, in Enugu State, within the jurisdiction of the Federal High Court of Justice Enugu did conspire among yourselves to commit an unlawful act to wit: obtaining money by false pretence and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3) of Advance Fee Fraud and other Fraud Related Offences Act, 2006.
COUNT TWO
That you Agha Monday, Engr. Christ Ezea, (at large) Nwadike aka Papa (at large) and Engr. Benson Banigo (at large) on or about 11th August 2012 in Enugu within the jurisdiction of the

federal High Court of Nigeria with intent to defraud obtained the sum of Three Hundred And Fifty Thousand Naira (N350,000.00) from Paul O. Ezema by false pretence that you were selling to him an Electrical Ring used by NNPC for pipeline protection which pretence you knew to be false and you thereby committed an offence contrary to Section 1(1)(a) of Advance Fee Fraud and other fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.
COUNT THREE
That you Agha Monday, Engr. Chris Ezea, (at large) Nwadike aka Papa (at large) and Engr. Benson Banigo (at large) on or about 10th November 2012 in Enugu within the jurisdiction of the Federal High Court of Nigeria with intent to defraud obtained the sum of Three Hundred Thousand Naira (N300,000.00) from one Paul O. Ezema through First Bank Account No. 3057250855 belonging to Cletus Odachi Mkpume by false pretence that the said money is Registration fee with NNPC as a contractor for the supply of Electrical Ring, which pretence you knew to be false and you thereby committed an offence contrary to Section 1(1)(a) of Advance Fee Fraud and other Fraud Related Offences Act, 2006 and

punishable under Section 1(3) of the same Act.
COUNT FOUR
That you Agha Monday, Engr. Chris Ezea, (at large) Nwadike aka Papa (at large) and Engr. Benson Banigo (at large) on or about 10thNovember 2012 in Enugu within the jurisdiction of the Federal High Court of Nigeria with intent to defraud obtained the sum of One Hundred and Fifty Five Thousand Naira (N155,000.00) from one Paul O. Ezema through Diamond Bank Account No. 0022156386 belonging to Okoh Sunday Nnanchi by false pretence that the said money is Registration fee for registration with NNPC as a contractor for the supply of Electrical ring, which pretence you knew to be false and you thereby committed an offence contrary to Section 1(1)(a) of Advance Fee Fraud and other Fraud Related Offences Act, 2006 and punishable under Section 1(3) of the same Act.

At trial, the prosecution called oral and documentary evidence in proof of the criminal allegations while the Appellant testified from the witness box as the sole witness for his defence. After taking final addresses from the respective counsel, the learned trial Judge delivered a considered judgment as aforesaid on the 17th January, 2014

wherein the Appellant was acquitted on one of the counts but was found guilty on the other three counts and was consequently convicted and sentenced.

Exercising his constitutional right of appeal, the Appellant invoked the appellate jurisdiction of this Court via the Notice of Appeal filed on the 17th February, 2014 containing three grounds.

The Respondent failed to respond or react to the appeal despite being served with all the necessary processes upon which the appeal was heard on the brief of the Appellant alone. It must be pointed out that the failure of the Respondent to appear and contest this appeal through a Respondents brief does not imply an automatic success of the Appeal. That the Appellant’s brief is the only set of arguments before the Court does not obliterate the existence of the judgment appealed against. The issues and arguments of the Appellant must still be considered vis a vis the reasoning and conclusions in the judgment on appeal and the overriding justice of the case. The absence of a Respondent’s brief does not invalidate those reasoning and conclusions neither does it supersede the necessity to do justice in the

case. The Appellant must therefore succeed or fail on the strength of his brief or case. See SKYE BANK & ANOR VS. AKINPELU (2010) LPELR-3073(SC) at 48-49, IDIKA VS UZOUKWU (2007) LPELR-12864(CA), UNITY BANK PLC & ANOR. VS. MR. EDWARD BOUARI (2008) 2 SCM 93 at 21I ALLU & ANOR VS. GYUNKA & ORS (2015) LPELR-40478(CA) and GADO VS. ILIYASU (2014) LPELR-23066(CA).

At the hearing of the Appeal, Mr. Nworie adopted the Appellant’s brief filed on the 11th August, 2016 but deemed properly filed and served on the 27th November, 2018 as the arguments of the Appellant in this appeal. Therein, the Appellant distilled and formulated three issues for determination as follows:
1. Whether the learned trial Judge was right in holding that evidence of conspiracy was separable from the evidence of obtaining money by false pretence relying on the evidence of PW1 which was the same evidence he relied on in convicting the accused person in the substantive offence as in counts 3 and 4.
2. Whether the trial Court was right in failing to expunge exhi. “M series” which was wrongfully admitted through inchoate trial within trial.
3.

Whether the trial Court was right to have convicted the Appellant relying on documentary hearsay evidence and evidence of witnesses whose part of their vital evidence had been suppressed by the prosecution.

Arguing the first issue, learned counsel contended that it was erroneous of the learned trial Judge to have convicted the Appellant for the substantive offence of obtaining money by false pretence and conspiracy to commit the same offence, based on the same facts. He contended that the count of conspiracy was bad for vagueness and duplicity and ought to have been struck out. He referred to BALOGUN VS POLICE (1953) 20 NLR 14, R VS AIYEOLA SC 267/1969, NNAJI VS POLICE (1975) 2 FSC 18 and KENNETH CLARK & ANOR VS THE STATE (1986) 4 NWLR (PT 35) 381 at 401.

He submitted that the evidence at trial did not disclose the participation of any other person in the crime which defeats the existence of conspiracy which of necessity must include at least two persons and referred to SILAS SULE VS THE STATE (2009) LPELR-3125(SC) and THE STATE VS OLASHEHU SALAWU (2011) LPELR-8252(SC).

Count 1, faced by the Appellant at trial and in respect of which he was

convicted alongside two other substantive counts, was for conspiracy. The contention of the Appellant was that conspiracy should not be charged together with the substantive offence if based on the same facts. The position was also canvassed that the charge is thereby bad for duplicity. Conspiracy is a separate and distinct offence from the substantive offence and the fates of each depends on the existing facts and circumstances.
Conspiracy basically, is an agreement between two or more person to carry out an unlawful act. It may be committed without the substantive offence being made out, while a conviction for the substantive offence would not necessary justify the inference of conspiracy if the facts do not exist. Charging the two together does not therefore amount to duplicity as was submitted for the Appellant. Where an indictment contains charges for a substantive offence and conspiracy to commit the offence, the proper step for a Court is to first deal with the charge for the substantive offence and then proceed to consider whether the charge for conspiracy ought to have been made at all and whether it is made out. See AGUGUA VS. STATE (2017)

LPELR-42021(SC) at 13 and OSETOLA & ANOR VS. STATE (2012) LPELR-9348(SC) and SULE VS. STATE (2009) LPELR-3125(SC).
The deprecation of the practice of lumping the two counts together stated in CLARK VS STATE (supra) and BALOGUN VS A.G. OGUN STATE (2002) 6 NWLR (PT 763) 521 at 533, was clarified by the Supreme Court as not to be stretched to a general rule. GALADIMA, JSC observed on the subject thus:
This Court has deprecated the practice of including a count of conspiracy to commit an offence in an information as well as a count for actually committing it, where the evidence to support the two counts are the same. The reason is obvious. This is because:
(i) evidence which otherwise would be inadmissible on the substantive charges against the accused becomes admissible, and
(ii) such a joinder of charges adds to the length and complexity of the case so that the trial may easily be well near unworkable and impose a quite intolerable strain on the Court.
See R V DAWSON v. WENLOCK (1960) 44 CR APP. R 87 Page 93 where the opinion of the Court of Appeal in England on the issue was adopted in lie Nigerian case of CLARK v. STATE (SUPRA).

See further AIYEOLA & 2 ORS v. THE STATE SC/27/69 (Unreported) of 7/8/1970 . This proposition is good if there will be clogging of otherwise simple trial with a count of complicated conspiracy, especially when there is no independent evidence of conspiracy. This is the merit of this proposition of the law. It should not be over-stressed or stretched to a ridiculous elasticity. I agree with the stance of the Court below on the point when it held on page 190 of the record, while relying on the cases of CLARK v. STATE (Supra) and SULE v. THE STATE (2009) 17 NWLR (Pt.1169) 33 thus:
“That position of law is eminently suitable ( sic). This is because in a charge of conspiracy to commit on (sic) offence such as armed robbery, even although a separate offence from armed robbery, where the facts are intricately interwoven the Courts are enjoined to the deal with the main offence first, since, if the substantive offence is unproven; the case for conspiracy is (sic) such circumstances collapses.”
However, in the present appeal, I am in no doubt that the evidence, as clearly pointed out earlier, support the count of conspiracy to commit armed robbery

as well as the count for actually carrying it out. The circumstances of this case when considered, then the charging of Appellant with conspiracy along with the substantive charge does not render the information inherently bad in law. See OKIEMUTE VS. STATE(2016) LPELR-40639(SC) at 23-25.
The learned trial Judge was of the view that the count of conspiracy in this instance was quite separable from the substantive counts of obtaining by false pretence and I see no reason to disagree with this view. The trial was not clogged in any way and the Appellant was not misled as the allegations against him. I therefore resolve this issue against the Appellant.

On the second issue, it was contended that the “Exhibit M series” of documents were admitted through a trial within trial which fell short of the extant procedure and that the said documents ought to have been expunged. Learned counsel argued that the said documents constituted inadmissible evidence which resulted in miscarriage of justice. He referred to MOSES JUA VS. THE STATE (2007) LPELR-8759(CA), OLUKADE VS ALADE (1976) 2 SC 183 and GANIYU GBADAMOSI & ANOR VS THE STATE (1992)

LPELR-1313(SC).

The complaint of the Appellant here is against supposed irregularities in the trial within trial. It should be stated that the trial within trial was embarked upon to determine the narrow issue of the voluntariness of the extra judicial confessions attributed to the Appellant. Any irregularity in attending that trial would be restricted to the scope of the outcome thereof and cannot be extrapolated to the main trial. See BABARINDE & ORS VS THE STATE (2012) LPELR-8367(CA) at 60-61.

A perusal of the judgment of the trial Court discloses vividly that the said exhibit M series played a totally insignificant role in the conviction of the Appellant as they were only mentioned in passing in the evaluation of the learned trial Judge and could not be said to have formed the basis of the conviction of the Appellant.
Furthermore, Section 251 (1) of the 2011 Act provides that-the wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it appears to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision

would have been the same if such evidence had not been admitted. The wrongful admission of the said exhibit M series of documents could therefore not be a basis for setting aside the judgment of the trial Court. See IFARAMOYE VS. STATE (2017) LPELR-42031(SC).

I therefore resolve this issue as well against the Appellant.

On the third and final issue, it was argued for the Appellant that Exhibits “D series, E, G series, H and H1 series, J series, K and K1 series and N series” were all documentary hearsay erroneously relied upon by the learned trial Judge to convict the Appellant which occasioned miscarriage of justice. Learned counsel contended that the staff of the relevant organizations from where the said documents emanated or the makers thereof, were not called and that none of the prosecution witnesses could testify directly on them. He referred to ABDULMALIK & ANOR VS TIJANI & ORS (2012) LPELR-19731(CA) and MUSA VS STATE (2013) LPELR-21866(CA).

Finally, it was contended for the Appellant that the failure or refusal of the prosecution to tender the extra judicial statements of PW1, PW2 and PW3 amounts to suppression of

facts and violated the principles of fair hearing. He referred to GHOHOR VS STATE (2013) LPELR-20293(CA).

Basically, pursuant to Section 37 of the Evidence Act, 2011, evidence must be direct. It however amounts to hearsay if it emanates from someone other than the maker and the purpose of adducing it goes beyond the fact that it was made to the point of asserting the veracity thereof. See JOHN VS. STATE (2017) LPELR-48039(SC). Documentary hearsay arises however where the veracity of the content of a document is sought to be asserted through a witness other than the maker thereof and who is thereby unable to testify or be cross-examined on the veracity of the contents. See TASIU (A.T.S) VS. SAMMANI (2019) LPELR-49189(CA).
Exhibits D series and E were admitted in evidence through PW3 as account opening documents and driver’s licence respectively said to have been submitted by the Appellant with his passport photograph but different name, in opening account with the bank where the said PW3 worked. The said documents were submitted directly to the said PW3. His evidence was direct as to what he did and the issue of hearsay does not arise with

respect to his entire testimony on in relation to the said documents. PW4 was the operative of the Economic and Financial Crimes Commission who investigated the case. The remaining documents here were tendered as what was received by the said PW4 as part of his investigative activities.
There is no doubt that documentary evidence can be received in the absence of the maker as admissibility is totally different from weight. See IGBODIM VS. OBIANKE (1976) 9-10 SC 179 and ABRAHAM VS. FRN (2018) LPELR-44136(CA). The witness, PW4 made no attempt to speak to the veracity of the said documents and the Appellant was not charged with falsifying them. I cannot therefore find any relevance in the contentions of the Appellant in this regard.

The Appellant in his parting shot complained about the failure of the prosecution at trial to tender the extra judicial statements of witnesses and contending that this amounted to suppression of evidence and a violation of the rights to fair hearing. It seems the learned counsel got it all mixed up. The evidence of a witness is what he states directly before the Court. His extra judicial account contained in the statement made

earlier to the investigator could only be used to test the veracity of his testimony before the Court where inconsistencies or contradictions are noted. The procedure is for the defence counsel to in the course of cross-examination, request for the earlier statement of the witness in question and tender the said earlier statement as exhibit before proceeding to draw the attention of the said witness to the portion of his said previous statement that is in conflict with the instant testimony at trial. The witnesses then given the opportunity to explain the noted inconsistency. See ESANGBEDO VS. THE STATE (1989) LPELR-1163 (SC) and CHRISTOPHER ONUBOGU VS THE STATE (1974) 9 S.C. 1 at 17-19. I therefore resolve this issue as well against the Appellant.

In totality, I find no merit in this appeal and I accordingly dismiss it.
Consequently, I affirm the judgment of the trial Court inclusive of the conviction and imposed sentence.

IGNATIUS IGWE AGUBE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA. I agree with the reasons ably articulated therein to arrive at the inescapable

conclusion that the appeal lacks merit and should be dismissed.

For the said comprehensive reasons, admirably and brilliantly marshaled in the said lead judgment. I also accordingly dismiss the Appeal. The Judgment of the Trial Court inclusive of the conviction and imposed sentence is hereby affirmed by me.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, JOSEPH OLUBUNMI KAYODE OYEWOLE, JCA just delivered. I am in agreement with the decision and the reasoning behind the decision.

For the above reasons and of course the detailed ones adumbrated in the lead judgment, the appeal lacks merit and same is equally dismissed. The judgment of the trial Court is hereby affirmed.

Appearances:

E. N. ONYIBOR, with him, M. C. NWORIE, ESQ. For Appellant(s)

…For Respondent(s)