DAUDA v. FRN & ORS (2021)

DAUDA v. FRN & ORS

(2021)LCN/15133(CA)

In The Court Of Appeal

(YOLA JUDICIAL DIVISION)

On Thursday, March 18, 2021

CA/YL/42CR/2020

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Between

MOHAMMED DAUDA APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. ALI ADAMU 3. HADIZA ADAMU BELLO 4. BELLO SALISU RESPONDENT(S)

RATIO

POSITION OF THE LAW REGARDING WHERE A HEARSAY EVIDENCE ARISES

It is trite Law that hearsay evidence arises where a person relates a fact or refrained from doing particular act and it is inadmissible. See OMONGA V. STATE (2006) 14 NWLR {Pt. 1000} 532 at 552. While pronouncing on the meaning and nature of hearsay, the apex Court in SYLVESTER UTTEH V. THE STATE (1992) LPELR – 6239 held thus: – “In the Subramaniam case (supra), the Judicial Committee of the Privy Council did not say that in all cases hearsay evidence is inadmissible. At P. 970 of the Report, the rule against hearsay is stated as follows: – Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” Per KAWU, JSC. See also SULEIMAN OLAWALE AROGUNDADE V. THE STATE (2009) LPELR – 559 (SC) per ONNOGHEN, JSC (as he then was) at 23. PER BITRUS GYARAZAMA SANGA, J.C.A.

POSITION OF THE LAW REGARDING MEANING, INGREDIENTS AND NATURE OF PROOF OF THE OFFENCE OF CONSPIRACY

The apex Court defined Conspiracy in TAOFEEK ADELEKE V. THE STATE (2013) LPELR – 20971 (SC) per ARIWOOLA, JSC at Pgs. 38 – 39 as follows: – “Conspiracy generally is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct that furthers the agreement. Conspiracy is therefore a separate offence in itself from the crime that is the object of the conspiracy. See Black’s Law Dictionary, Ninth Edition P. 351.” See also ADESINA KAYODE V. THE STATE (2016) LPELR – 40028 (SC). While pronouncing on the ingredients of conspiracy, the apex Court in THE STATE V. SALAWU (2012) ALL FWLR {Pt. 614} 1 at 29 held thus: – “Conspiracy is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. A charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused. In other words, there must be criminal intention (actus reus) of two or more persons actus contra actum which is punishable where it is translated into achieving a criminal objective through a criminal means. In order to establish that conspiracy has been committed by some set or group of persons suspected to have committed a crime, the prosecution is required to prove that: (a) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but illegal means. (b) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement. (c) Specifically that each of the accused individually participated in the conspiracy.” Conspiracy is usually a matter of inference from the surrounding facts and circumstances. Trial Courts may infer conspiracy from the fact of doing things towards a common purpose. In THE STATE V. JAMES GWANGWAN (2015) LPELR – 24837 (SC), the apex Court while pronouncing on how to establish the offence of conspiracy held, per OKORO, JSC thus: – “In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by an unlawful means. Conspiracy is an offence, which is difficult to prove because it is often hatched in secrecy. It is usually inferred from the facts and evidence led. More often, circumstantial evidence is used to point to the fact that the confederates had agreed on the plan to commit an overt act to infer conspiracy. See David Omotola & Ors. V. The State (2009) 7 NWLR {Pt. 1139} 148; (2009) LPELR – 2663 (SC).” PER BITRUS GYARAZAMA SANGA, J.C.A.

WAYS BY WHICH THE OFFENCE OF CONSPIRACY CAN BE FORMED

In ADEBAYO V. THE STATE (1987) NWLR {Pt. 57} 468 at 480 the Supreme Court held thus: – “Generally conspiracy can be formed in one of the following ways: (a) The conspirators may directly communicate with each other at the particular place and time and enter into an agreement with a common design. (b) There may be one person who is the hub around whom the others revolve, like centre of a circle and the circumference. (c) A person may communicate with A and with B, who in turn communicate with another and so on. This is what is called the chain of conspiracy.” PER BITRUS GYARAZAMA SANGA, J.C.A.

WHETHER A PROSECUTION HAS AN OBLIGATION TO CALL A HOST OF WITNESSES BEFORE IT CAN DISCHARGE THE BURDEN OF PROOF PLACED ON IT.

In JOEL ADAMU V. THE STATE (2017) LPELR – 41436 (SC), the apex Court while pronouncing on the discretion of the prosecution in calling witnesses, held thus: “As rightly submitted by learned counsel for the respondent, the prosecution has the discretion to call whatever number of witnesses it deems necessary to discharge the burden of proof. See: Ochiba Vs. The State (1991) 3 NWLR {Pt. 182} 645. Indeed, the evidence of a single witness if credible and cogent, is sufficient to ground a conviction. See Babarinde Vs. The State (2013) 12 SCNJ 316; Sule Vs. The State (2009) 17 NWLR {Pt. 1169} 33 at 57 – 58….” Per KEKERE-EKUN, JSC at pages 17 – 18 paragraphs F C. The apex Court was more succinct on this issue when it held in TAIYE V. STATE (2018) LPELR – 44466 (SC) per SANUSI, JSC thus: “…. With due deference to the learned counsel for the appellant, there is no Law which imposes an obligation on the prosecution to call list or host of witnesses. The prosecution is merely needed to call enough material witnesses to prove its case and in doing so it has the discretion in the matter on who to call and who not to call. See Oduneye Vs. The State (2001) 13 WRN 88; Agbi Vs. Ogbeh (2006) 11 NWLR {Pt. 990} 65; Babuga Vs. State (1996) 7 NWLR {Pt. 460} 279. In fact, even a murder case can be established by evidence of only one witness provided his evidence is credible and believed by the trial Court. See Effiong Vs. State (1998) 8 NWLR {Pt. 562} 362.” PER BITRUS GYARAZAMA SANGA, J.C.A.

EFFECT OF THE FAILURE OF A COUNSEL TO CHALLENGE THE TENDERING OF AN EXHIBIT

The apex Court held, on the implication of a party not raising timely objections to the tendering of an exhibit, in TAOFEEK ADELEKE V. STATE (2013) LPELR – 20971 (SC) per MUNTAKA-COOMASSIE, JSC thus: – “With due respect where a counsel stands by and allows exhibits to be tendered smoothly to become evidence without any objection he cannot be heard to later complain about same. They thus become legally admitted evidence which the Court can rely on. See Bello Shurumo V. The State (2010) 12 SCNJ 109, and Oseni V. The State (2012) 2 SCNJ 215 at 253.” PER BITRUS GYARAZAMA SANGA, J.C.A.

BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment): The Appellant was the second accused person in Charge No. FHC/YL/45C/2017 before the Federal High Court, Yola Judicial Division A. M. Anka J., presiding. The appellant together with the 2nd, 3rd and 4th Respondents (and one Hassan Bellon now deceased) were arraigned on a 4 Count Charge as follows: –
COUNT 1:
That you Ali Adamu (M), Mohammed Dauda (M) and Hadiza Bello (F) sometimes in the month of March, 2017 or thereabout at Girei Check Point along Girei-Yola Road, Adamawa State had in your possession counterfeit bank notes of N1000 (One Thousand Naira Only) denomination in the value of N5,504,000.00 (Five Million, Five Hundred and Four Thousand Naira) knowing it to be counterfeit and thereby committed an offence contrary to Section 5(1) (b) and punishable under Section 5(1) (c) of the Counterfeit Currency (Special Provisions) Act. Cap C35, LFN 2004.
COUNT 2:
That you Hassan Bello (M) (now deceased) in the month of March, 2017 or thereabout at Wamdeo, Uba Borno, Borno State had in your possession counterfeit bank notes of N1000 (One Thousand Naira) denomination in the value

of N26,000.00 (Twenty Six Thousand Naira Only) knowing it to be counterfeit of which said counterfeit bank notes is part of the larger sum found on some other Co-Defendants at Girei Check Point along Girei-Yola Road, Adamawa State and thereby committed an offence contrary to Section 5(1) (b) and punishable under Section 5(2) of the Counterfeit (Special Provisions) Act. Cap C35, LFN 2004.
COUNT 3:
That you Hassan Bello (M) in the month of March, 2017 or thereabout at Wamdeo, Uba Borno, Borno State abetted Ali Adamu (M), Mohammed Dauda (M) and Hadiza Adamu Bello (F) to commit an offence of possession of counterfeit bank notes of N1000 (One Thousand Naira) denomination in the value of N5,504, 000.00 (Five Million, Five Hundred and Four Thousand Naira Only) and thereby committed an offence contrary to Section 6 (2) (a) and punishable under Section 5(1) (c) of the Counterfeit Currency (Special Provisions) Act. Cap. C35, LFN 2004.
COUNT 4:
That you Ali Adamu (M), Mohammed Dauda (M), Hadiza Adamu Bello (F), Bello Salisu (M) and Hassan Bello (M) sometime in the month of March, 2017 or thereabout conspired among yourselves to commit an offence of

possession of counterfeit bank notes of N1000 (One Thousand Naira) denomination in the value of N5,504, 000.00 (Five Million, Five Hundred and Four Thousand Naira Only) and thereby committed an offence contrary to Section 6 (2) (b) and punishable under Section 5(1) (c) of the Counterfeit Currency (Special Provisions) Act. Cap C35, LFN 2004. (Pages 2 – 3 of the Records).

The charge is dated 9th May, 2017. The defendants were arraigned on the 20th November, 2017 and they all pleaded “Not Guilty”. (Pages 173 – 175 of the Records). Counsel appearances are: I. I. Ashom Esq., for the prosecution; E. O. Odo Esq., leading Joseph William for the 1st and 5th accused persons while Sule J. Abul Esq., announced appearance for the 2nd, 3rd and 4th accused persons. One William Cletus Binadu a staff of I.C.P.C testified as PW1. P.W.2 is Nongo Samuel a staff of the Fraud Unit Nigeria Immigration Service Abuja. He testified on 21/11/2017 and was cross-examined. (Pages 183 – 186 of the Records). On 7/2/2018, P.W.3 Major A. J. Peter of the Nigerian Army Corp of Military Police at 23 Brigade entered the witness box and testified as PW3. After the

prosecution witnesses testified and tendered several documents in evidence, learned counsel to all the accused persons made a “no case submission” on 8th May, 2018 which was overruled and the learned trial Judge ordered the Defendants to enter their defence.

D.W.1 is Mohammed Isa, a businessman at Wamdeo Askira-Uba Local Government Area. He testified on behalf of the 5th Defendant (now deceased) and was cross-examined. Adamu Kautal testified for the 2nd defendant as D.W.2 and was cross-examined. The defendants then closed their respective cases. None of them testified. (Testimony of DW1 and DW2 are at pages 205 – 217 of the Records). Written addresses were ordered by the learned trial Judge. On 6th November, 2019 learned counsel adopted their respective written addresses and judgment was reserved. However on 28th January, 2020, the Court sat and J. Williams Esq., learned counsel to the 1st and 5th Defendants informed the Court that the 5th Defendant died on 3rd December, 2019. The death certificate was produced and exhibited in Court and the brother and surety of the deceased confirmed the demise of the said 5th Defendant. Judgment was delivered on 6th February, 2020.

In his judgment (pages 225 – 275 of the Records), the learned trial Judge after a thorough evaluation of the oral and documentary evidence adduced before him held, inter alia, as follows: –
“I therefore find the evidences of the DW1 and DW2 manifestly conflicting and unreliable being lies perpetrated to attain victory through the back door and are accordingly discountenanced. The offence therefore of conspiracy as contained in Count 4 of the Charge has been established against all the defendants beyond reasonable doubt and I so hold. As regard count 1 involving the 1st to 3rd defendants, it is proved before the Court that the three defendants (supra) have been found in possession of counterfeit bank notes at Girei Checkpoint in the value of N5,504, 000.00 contrary to Section 5(1) (c), Section 5(1) (b) which states thus…. I therefore find the defendants guilty as charge for the offence of conspiracy contrary to Section 6(2) (b) of the Counterfeit Currency (Special Provisions) Act, Cap 35 LFN 2004. I also find the 1st, 2nd and 3rd defendants guilty of the offence of being in possession of

counterfeit bank notes as contained in the first count contrary to Section 5(1) (b) of the Act (Supra)…. The 1st, 2nd, 3rd and 4th defendants are hereby convicted in line with Section 6 (2) (b) for the offence of conspiracy. The 1st, 2nd and 3rd defendants are accordingly convicted for the offence of being in possession of counterfeit bank notes contrary to Section 5 (1) (b) of the Act (supra).”

The learned trial Judge then pronounced his sentence on the convicts as follows: –
“For the offence of conspiracy committed by all the convicts here, this Court hereby sentence all the convicts to 10 years imprisonment each, for the offences of being in possession of counterfeit currency, the 1st, 2nd and 3rd convicts are sentenced to 10 years imprisonment each. All sentences shall run currently.”

The 2nd convict was aggrieved with this sentence. He filed a Notice of Appeal containing 4 grounds of appeal dated 31st March, 2020. (pages 277 – 281 of the Records). The record of appeal was compiled and transmitted to this Court from the lower Court on 23/4/2020. The Appellant’s brief of argument was prepared by Sule

Abdul Esq. It was filed on 27/5/2020 but deemed as properly filed and served on 3/6/2020. Learned counsel to the Appellant formulated two issues for determination as follows:-
1. Whether the trial Court was right when it discountenanced the Appellant’s submission on evidence of PW1 being hearsay and convicted and sentenced the Appellant for the offences of conspiracy contrary to Section 6(2) (b) of the Counterfeit Currency (Special Provision) Act, Cap C35 Laws of the Federation of Nigeria, 2004. (Grounds 2 and 3)
2. Whether the trial Court was right when it convicted and sentenced the Appellant for the offence of being in possession of counterfeit banknotes contrary to Section 5(1) of the Counterfeit Currency (Special Provisions) Act. Cap C35 Laws of the Federation of Nigeria, 2004. (Grounds 1 and 4)

The 1st Respondent’s brief of argument was settled by Shedrach Osiaje Eghwere (Mrs.), a Legal Officer with the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The 2nd and 3rd Respondents did not file any brief of argument. Learned counsel to the 1st Respondent reframed the two issues canvassed by the

Appellant as follows: –
1. Whether from the totality of the evidence laid before the Court, the Respondent/Prosecution proved the offences of conspiracy and being in possession of counterfeit bank notes against the Appellant beyond reasonable doubt.
2. Whether the evidence of an investigating officer can be regarded as hearsay evidence.

In considering this appeal, I will adopt the issues formulated by the Appellant.
Issue 1 is:
Whether the trial Court was right when it discountenanced the Appellant’s submission on the evidence of PW1 being hearsay and convicted and sentenced the Appellant for the offences of conspiracy contrary to Section 6(2) (b) of the Counterfeit Currency (Special Provision) Act. Cap C35 LFN, 2004.

Learned counsel to the Appellant urged the Court to answer the question posed by this issue in the negative against the Respondent. That the Appellant had contended before the trial Court that the evidence adduced by the prosecution against him was not sufficient to convict him for the offence of conspiracy yet the learned trial Judge convicted and sentenced him for the offence of conspiracy. Learned counsel

cited and quoted the apex Court authority of STATE V. SALAWU (2012) All FWLR {Pt. 614} 1 at 29 where the offence of conspiracy was defined by the Supreme Court. He also cited this Court’s decision in EYO V. STATE (2012) All FWLR {Pt. 657} 763 at 782 – 783 paragraphs H – D.

Learned counsel then reviewed the evidence produced by the PW1 in his testimony and submits that it was hearsay evidence which is inadmissible. That the Supreme Court explained what constitutes hearsay evidence in FEDERAL REPUBLIC OF NIGERIA V. USMAN (2012) All FWLR {Pt. 632} 1639 at 1653 paragraphs H – C. That this Court also did likewise in UWEH V. STATE (2013) ALL FWLR {Pt. 679} 1089 at 1095 paragraph G. Learned counsel while buttressing his argument on the inadmissibility of the evidence of PW1 quoted pages 256 of the Records. He also quoted the finding by the learned trial Judge at page 257 of the Records wherein he held thus: –
“As the evidence reveals PW1 was actually not at the place of arrest at Girei checkpoint and all parties agreed to that and are ad idem. PW1 cannot therefore testify as to what he was told that (sic) and transpired at

Girei checkpoint that led to their arrest.”

Learned counsel submitted that this finding by the learned trial Judge means the evidence of PW1 is not reliable and ought to be discountenanced.

Learned counsel to the Appellant also reviewed the evidence of PW2 and PW3. On the evidence of PW2 who testified, inter alia, that he received the counterfeit currencies from officers of the I.C.P.C. for authentication and upon examining the said currencies, he found that they were not genuine. That under cross-examination, PW2 testified, inter alia, thus:
“I don’t know where the source of Exhibit ‘B’ was. My own was to carry out investigation on the money. I am seeing the Defendants for the first time in my life.” (page 186 of the Records).

As for PW3, it is the submission by learned counsel to the Appellant that his testimony in chief was that “his men” arrested the Appellant and two others at Girei checkpoint having in their possession N5,504,000.00 fake currencies of N1,000 denomination. That when he was informed, he took custody of the suspects and the counterfeit currencies and handed them over to

P.W.1. That under cross-examination, PW3 stated thus: –
“My men arrested them and brought them. I don’t investigate civilians, I transfer them.” (page 192 of the Records).
That PW3 testified further during cross-examination that: –
“Yes, based on demands of my office I am not often at the field with them because I scatter them around Adamawa and Taraba. Yes, my boys arrested them and brought them to me. It was my boys that told me why they arrested them.”

Learned counsel urged this Court to hold that the evidence of PW3 also did not prove conspiracy as it amounts to hearsay which in admissible. Cited FEDERAL REPUBLIC OF NIGERIA V. USMAN (supra) at Ratio 4. That none of the arresting officers at the Gerei checkpoint was called to testify as to the circumstances that led to the arrest of the Appellant and how the alleged fake currencies were found on and related to the Appellant. Learned counsel submitted that despite these glaring hearsay evidences, the learned trial Judge went ahead and convicted his client of the offence of conspiracy. That the issue before the trial Court was not whether there was an arrest, but

whether the allegations against the Appellant were proved as required by Law, particularly in view of the inadmissibility of the evidence of PW1 and PW3 for being hearsay. As for PW2, learned counsel to the Appellant submitted that he agree with the learned trial Judge that the PW2 does not need to know the source of the currencies but his evidence will be of evidential value only if the prosecution proves that the Appellant conspired with others to be in possession of the counterfeit notes, or was found in possession of the counterfeit notes by evidence known to the Law. Learned counsel distinguished the authorities relied upon by the learned trial Judge of ENITAN & ORS V. THE STATE (1986) LPELR – 1146 (SC) and OYAKHIRE V. THE STATE (2006) LPELR – 2863 (SC).

That if there was no proof of conspiracy against the Appellant and his being in possession of the counterfeit notes said to have been found at Girei checkpoint, he ought not to have been convicted for the offence of conspiracy or any other offence at all. That the learned trial Judge was wrong to have relied on the extra-judicial statements of the 1st and 5th Defendants in finding the

Appellant guilty as the extra-judicial statements of the 1st and 5th Defendants only binds them and not the Appellant. That the said extra judicial statements of 1st and 5th Defendants marked as Exhibit D and D1 was wrongly applied to bind the Appellant. Cited AFAM OKEKE V. THE STATE (2016) LPELR – 40024 (CA) where this Court held thus: –
“The extra judicial statement of a witness in a criminal trial is inadmissible as evidence for either side.”

That by those facts and authorities, the prosecution did not prove the offence of conspiracy against the Appellant. Learned counsel urged the Court to resolve this issue in favour of the Appellant, to set aside the conviction and sentence of the said Appellant and to discharge and acquit his client.

In his submission while arguing issue 1, learned counsel to the 1st Respondent submitted that it is trite Law that in all criminal proceedings, the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt but that does not mean beyond every iota of doubt. That the prosecution will achieve this task by ensuring that all the necessary ingredients of the

charge are proved in evidence. Cited Sections 135 and 139 of the Evidence Act and LORI V. THE STATE (1980) 8 – 11 S.C. 81 at 99; DIBIE V. STATE (2007) 2 NCC 475 at 497 per TOBI JSC; DERIBA V. THE STATE (2016) LPELR – 40345 (CA). That the Appellant was convicted of the offence of possession of counterfeit banknotes (Count 1) and for the offences of conspiracy to commit the offence of possession of counterfeit banknotes (Count 4). That to succeed with respect to the offence of being in possession of counterfeit banknotes, the following elements are required:
a. That there is a person;
b. In possession of counterfeit bank notes;
c. Knowing it to be counterfeit.

That in proof of the first element i.e. there is a person, there is no doubt that the Appellant is a person. As for the 2nd element, that the prosecution led evidence through PW3 to show that the Appellant along with two other Defendants were arrested by his soldiers at the Girei Military Checkpoint after their vehicle was checked and they were found to be in possession of counterfeit bank notes of N1,000 denomination in the value of N5,504,000.00. That PW2 in his testimony

stated that the said N1,000 notes in the value of N5,504,000.00 found in possession of the Appellant, 3rd and 4th Defendants were counterfeit bank notes as shown in Exhibit E. That the counterfeit notes were tendered and marked as Exhibits B – B10. That the confessional statements of the 1st and 5th Defendants (Exhibits D & D1) also corroborate the oral testimony of P.W.3 that the Appellant and his co-conspirators were arrested in possession of counterfeit bank notes at Girei checkpoint. With respect to the 3rd element, i.e. knowing the notes to be counterfeit, the confessional statement of the 1st Defendant (Exhibit D) shows clearly that the said 1st, 3rd Defendants and the Appellant knew that the notes were fake. Learned counsel also placed reliance on Section 5(3) of the Counterfeit Currency (Special Provisions) Act, Cap. C35, LFN, 2004 which provides thus: –
“Where a person has fifty or more counterfeit notes or current coins in his possession, the Federal High Court before whom such person is tried may presume knowledge that they are counterfeit bank notes or current coins and also an intention to utter any of them, unless he proves the contrary.”

Learned counsel submitted that the presumption above applies to the instant case as the prosecution had led evidence to rebut the presumption that the defendants knew that the notes were counterfeit. On the submission by learned counsel to the Appellant that the prosecution did not call the arresting officer at the checkpoint to testify, learned counsel to the Respondent submitted that it is trite Law that in a criminal case, the prosecution is not duty bound to call all witnesses. Cited OLABODE V. THE STATE (2009) ALL FWLR {Pt. 500} 607; JOEL ADAMU V. THE STATE (2017) LPELR – 41436 (SC) and TAIYE V. THE STATE (2018) LPELR – 44466 (SC). Learned counsel urged the Court to find and hold that all the elements of the offence of being in possession of the fake bank notes have been proved against the Appellant.

As for the offence of conspiracy to comment, the offence of possession of counterfeit bank notes contrary to Section 6(2) (b) of the Counterfeit Currency (Special Provisions) Act Cap C35, LFN 2004, learned counsel submitted that in KOLAWOLE V. THE STATE (2015) LPELR – 24400 (SC), the apex Court defined conspiracy

as “a meeting of two or more minds to plan to carry out an unlawful or illegal act which is an offence and that the mere agreement to commit an offence is sufficient”. That to prove the offence of conspiracy, the prosecution ought to prove the following: –
1. “That there was agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal by illegal means.
2. Individual participation in the conspiracy by each of the accused person.”
Cited GARBA V. C.O.P. (2007) 16 NWLR {Pt. 1060} 378 at 405. That conspiracy is a matter of inference from surrounding facts and circumstances. A trial Court may infer conspiracy from the fact of doing things towards a common purpose. Cited ALATISE V. THE STATE (2012) LPELR – 9469 (CA) 41. That the Supreme Court made a pronouncement on the offence of conspiracy in THE STATE V. JAMES GWANGWAN (2015) LPELR – 24837 (SC). That in satisfying the above elements, the prosecution led evidence through the PW1 and PW2 establishing that even though the Defendants were arrested at different places, the counterfeit currency notes found on the Appellant,

1st and 3rd Defendants had the same features and serial number as the counterfeit notes found on the 5th Defendant (now deceased). Learned counsel quoted the testimony of PW1 at page 178 of the Record and that of PW2 at page 183 of the Records. That Exhibits D and D1 contain direct evidence from the 1st and 5th Defendants about the agreement between the Defendants to procure counterfeit bank notes. Learned counsel quoted extensively from Exhibit D the extra-judicial statement of 1st Defendant and Exhibit D1 the statement of 5th Defendant.

Learned counsel submitted that Exhibits D and D1 shows clearly the roles played by each of the Defendants in respect to the conspiracy which also depicts an agreement among the Defendants to carry out an unlawful or illegal act which is an offence. That by the statement of the 1st Defendant, the mobilization fee for the journey was paid into the account of the Appellant. Learned counsel urge the Court to affirm the judgment by the lower Court on conspiracy against the Appellant considering the statements of the 1st and 5th Defendants which was made available to the Appellant, 3rd and 4th Defendants and thus can be used

against them as held in YONGO V. C.O.P (1992) 2 NWLR {Pt. 257} 36. He urged the Court to resolve this issue in favour of the 1st Respondent.

FINDING ON ISSUE 1:
Issue 1 formulated by the Appellant is:
Whether the trial Court was right when it discountenanced the Appellant’s submission on the evidence of PW1 being hearsay and convicted and sentenced the Appellant for the offences of conspiracy contrary to Sections 6 (2) (b) of the Counterfeit Currency (Special Provisions) Act Cap C35 Laws of the Federation of Nigeria, 2004.

This issue canvassed by the Appellant is challenging the evidence of PW1 on the basis that it is hearsay, it is also challenging the conviction of the Appellant for the offence of conspiracy. I have considered the testimony of PW1, Mr. William Cletus Binadu at pages 178 to 183 of the Records. The witness in his testimony in chief said he knows all the five defendants and he narrated how he came to know them. He said thus: –
“Yes, I know all the 5 defendants. How I know them, on 27th March, I received a call from Nigerian Army Military Police call in Yola where I went to their barracks and their army

handed over these 5 defendants. The officer who handed over to me is Capt. A.J. Peter. He handed 3 of them not five with the sum of N5,504,000.00 which were fake Nigerian currencies in the bills of One Thousand Naira. Upon receipt of the 3 defendants, I collected as a well a handing over note that was duly signed by Capt. A.J. Peter. I took the 3 defendants to my office with the currency which I counted and confirmed in the 3 defendants’ presence. I counted and confirmed the money there at the barrack before moving them to my office; I counted in the presence of the Capt. A.J. Peter. The 3 defendants are Ali Adamu, Hadiza Bello and Mohammed Dauda (1st, 2nd and 3rd defendants). On reaching to my office, my commissioner gave me directive to carry out investigative process by taking their statement which I did. In the process at the commencement, I administered the cautionary word which I read to their hearing and they all understood and appended their signature. Two (2) of them pleaded they could not write in English so I took their statement on their behalf and they all signed at the end of the statements after reading it, that it is their statements.

It was in the course of the statement taking they now told me one of their accomplices in person of Salisu Bello was in the town in Yola at Jambutu Park. On hearing that I moved with the operatives in office and we now picked the 4th defendant. Furthermore they also unveiled to me that the 5th defendant who is also an accomplice to them is living at Wamdeo village Borno State. My commissioner further gave me directive for me to move in a day after. We went there and we were able to apprehend the 5th defendant. On getting to the house with all the legal documents that empower us to search and arrest, we located and searched the house and we discovered N26,000 fake currencies of one thousand naira notes. The 5th Defendant is Hassan Bello we arrested him and we took him to our office and as well took down his statement under cautionary words. That is how I know the five defendants.
After the investigative process of taking their statements, I developed the reports and personally took the currency to Abuja and requested my office for a letter to the Nigeria Immigration Service for forensic examination. When the letter was ready, I took the currency personally to

Immigration Service Office and handed it over to Mr. Nongo Samuel, an Assistant Comptroller of Immigration who did the forensic examination. When he was through, he called me to come and collect the report as well as the currency. I now went and collected the report and the currency which had been in my custody up till today that I brought it to Court. Furthermore, in identifying the currency (I should have said earlier) all the notes are of the same serial number, the same fixture, the same year of production. The serial number A/16 776 544. The year of production is 2005.”
(Pages 178 – 179 of the Records).

Upon carefully considering the testimony of PW1, I am convinced that it is not hearsay evidence and I so hold. It is trite Law that hearsay evidence arises where a person relates a fact or refrained from doing particular act and it is inadmissible. See OMONGA V. STATE (2006) 14 NWLR {Pt. 1000} 532 at 552. While pronouncing on the meaning and nature of hearsay, the apex Court in SYLVESTER UTTEH V. THE STATE (1992) LPELR – 6239 held thus: –
“In the Subramaniam case (supra), the Judicial Committee of the Privy Council did

not say that in all cases hearsay evidence is inadmissible. At P. 970 of the Report, the rule against hearsay is stated as follows: – Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.” Per KAWU, JSC.
See also SULEIMAN OLAWALE AROGUNDADE V. THE STATE (2009) LPELR – 559 (SC) per ONNOGHEN, JSC (as he then was) at 23. As I stated above that PW1 narrated the pivotal role he played in investigating the allegation of criminal conspiracy and being in possession of counterfeit currency against the Appellant, the 3rd and 4th Defendants. It was in the course of his investigation that he arrested the 1st and 5th Defendants (who are their co-conspirators) with fake currency worth N26,000.00 bearing the same serial number, same fixture and same year of production with the sum of N5,504,000.00 earlier found with the

Appellant, 3rd and 4th Defendants at a Military Checkpoint at Girei. The serial number on all the counterfeit currencies found is: A/16 776 544. The year of production is 2005. Therefore to allege that the testimony of PW1 is hearsay is a misconception of the Law and I hereby discountenance that allegation by the Appellant.

The second limb of issue 1 canvassed by the Appellant is that the learned trial Judge erred in Law by convicting and sentencing the Appellant for the offence of conspiracy contrary to Section 6(2) (b) of the Counterfeit Currency (Special Provision) Act Cap. C35 LFN, 2004. The apex Court defined Conspiracy in TAOFEEK ADELEKE V. THE STATE (2013) LPELR – 20971 (SC) per ARIWOOLA, JSC at Pgs. 38 – 39 as follows: –
“Conspiracy generally is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective and action or conduct that furthers the agreement. Conspiracy is therefore a separate offence in itself from the crime that is the object of the conspiracy. See Black’s Law Dictionary, Ninth Edition P. 351.”

See also ADESINA KAYODE V. THE STATE (2016) LPELR – 40028 (SC). While pronouncing on the ingredients of conspiracy, the apex Court in THE STATE V. SALAWU (2012) ALL FWLR {Pt. 614} 1 at 29 held thus: –
“Conspiracy is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful/illegal act, coupled with an intent to achieve the agreement’s objective. A charge of conspiracy is proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. The evidence required in this kind of criminal offence is of such quality that irresistibly compels the Court to draw such inference as to the guilt of the accused. In other words, there must be criminal intention (actus reus) of two or more persons actus contra actum which is punishable where it is translated into achieving a criminal objective through a criminal means. In order to establish that conspiracy has been committed by some set or group of persons suspected to have committed a crime, the prosecution is required to prove that:
(a) An agreement between two or more persons

to do or cause to be done, some illegal act or some act which is not illegal but illegal means.
(b) Where the agreement is other than an agreement to commit an offence, that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(c) Specifically that each of the accused individually participated in the conspiracy.”
Conspiracy is usually a matter of inference from the surrounding facts and circumstances. Trial Courts may infer conspiracy from the fact of doing things towards a common purpose. In THE STATE V. JAMES GWANGWAN (2015) LPELR – 24837 (SC), the apex Court while pronouncing on how to establish the offence of conspiracy held, per OKORO, JSC thus: –
“In order to prove a charge of conspiracy, the prosecution must establish the element of agreement to do something which is unlawful or to do something which is lawful by an unlawful means. Conspiracy is an offence, which is difficult to prove because it is often hatched in secrecy. It is usually inferred from the facts and evidence led. More often, circumstantial evidence is used to point to the fact that the confederates had

agreed on the plan to commit an overt act to infer conspiracy. See David Omotola & Ors. V. The State (2009) 7 NWLR {Pt. 1139} 148; (2009) LPELR – 2663 (SC).”
In its efforts to establish that conspiracy is committed as canvassed by the Supreme Court in STATE V. SALAWU (Supra), the prosecution through PW1 and PW2 proved that even though the Defendants were arrested at different locations with counterfeit currency notes the said fake notes found on the Appellant, 1st and 3rd Defendants had the same features and serial number with the counterfeit notes, found on the 5th Defendant (now deceased). See the testimony of PW1 at pages 178 – 179 of the Records. Thus the Appellant and two other Defendants (1st and 3rd Defendants) were arrested in March, 2017 at Girei checkpoint where they were found in possession of N5,504,000.00 fake currency notes in N1,000 denomination. They were handed over to Major A.J. Peter (PW3). On the other hand the 5th Defendant was arrested some days later at Wamdeo Village Borno State. When his house was searched, the sum of N26,000 fake currency notes in N1,000 denomination were also found. It was the information

volunteered by the Appellant and his co-conspirators during investigation that led to the arrest of said 5th Defendant. As I stated above the serial number of the counterfeit notes found on the Appellant and his co-conspirators and those found on the 5th Defendant are the same thus the finding by the trial Court of the offence of conspiracy. In ADEBAYO V. THE STATE (1987) NWLR {Pt. 57} 468 at 480 the Supreme Court held thus: –
“Generally conspiracy can be formed in one of the following ways:
(a) The conspirators may directly communicate with each other at the particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others revolve, like centre of a circle and the circumference.
(c) A person may communicate with A and with B, who in turn communicate with another and so on. This is what is called the chain of conspiracy.”
This exposition on how the offence of conspiracy is formed showed a single conspiracy in which each person is responsible for distinct act within the overall plan. All participants are interested in the overall scheme and liable

for all other participants acts in furtherance of that scheme. That is what transpired in this case thus the offence of conspiracy was proved against the Appellant, the 1st, 3rd and 4th Defendants as rightly held by the learned trial Judge. I resolve this issue against the Appellant and in favour of the 1st Respondent.

The second issue formulated by the Appellant is:
Whether the Trial Court was right when it convicted and sentenced the Appellant for the offence of being in possession of counterfeit banknotes contrary to Section 5(1) of the Counterfeit Currency (Special Provision) Act, Cap C35 Laws of the Federation of Nigeria, 2004.

While arguing this issue, learned counsel to the Appellant urged the Court to answer the question in the negative. He quoted the said Section 5(1) (Supra) which provides, inter alia, thus: –
“Any person who:
(a) Has in his possession counterfeit note or currency coin knowing it to be counterfeit.. Is guilty of an offence under this Act and upon conviction shall be liable to imprisonment for a term not exceeding twenty one years”.

That the elements of the offence are: –
(a) Being in possession.
(b) Knowledge of the counterfeit notes to be counterfeit.

That the learned trial Judge was in error when he convicted the Appellant for the offence as the prosecution failed to prove the ingredients of the offence. Learned counsel adopt his submission under issue 1 and added that the prosecution did not prove the elements of the offence against the Appellant as provided by Law to warrant the conviction and sentence of the Appellant for the following reasons: –
1. None of the arresting officers at the checkpoint where the appellant was said to have been arrested along with others and found in possession of counterfeit notes was called to testify.
2. The extra-judicial statements said to have been made by the Appellant were withdrawn while being tendered on the objection of learned counsel to the Appellant.
3. Exhibits D and D1 tendered by the prosecution (Statements of 1st and 5th Defendants) binds only the makers as pronounced by this Court in OKEKE V. THE STATE (Supra) and are thus inadmissible.

That there is no proof of being in possession of counterfeit notes against his client since no evidence was adduced before

the lower Court. He urge the Court to resolve this issue in favour of the Appellant and to set aside the conviction and sentence of the appellant by the trial Court and to discharge and acquit him.

While arguing this issue, learned counsel to the 1st Respondent based his argument on the issue of the evidence of PW1 whether it is hearsay. I have already made my finding on this aspect of the case under issue 1 above by holding that the evidence of PW1 is not hearsay evidence. Learned counsel also succinctly countered the submission by the Appellant as it affects Exhibits D and D1 which I will refer to in my finding.

FINDING ON ISSUE 2:
The issue is: –
Whether the trial Court was right when it convicted and sentenced the Appellant for the offence of being in possession of counterfeit banknotes contrary to Section 5(1) of the Counterfeit Currency (Special Provision) Act, Cap C35, Laws of the Federation of Nigeria, 2004.

I have considered the submission by learned counsel to the Appellant where he urged the Court to hold that the lower Court was not right when it convicted and sentenced the Appellant for the offence of being in possession

of counterfeit banknotes contrary to Section 5(1) (supra) for the following reasons: –
1. None of the arresting officers at the checkpoint where the appellant was said to have been arrested along with others and found in possession of counterfeit notes was called to testify.
2. The extra-judicial statements said to have been made by the Appellant were withdrawn while being tendered on the objection of learned counsel to the Appellant.
3. Exhibits D and D1 tendered by the prosecution (Statements of 1st and 5th Defendants) binds only the makers as pronounced by this Court in OKEKE V. THE STATE (Supra) and are thus inadmissible.

I will only make my finding on points 1 and 3 above since the 2 point have been overtaken by events. On the failure of the prosecution to call the officers that arrested the Appellant and his co-accused at military checkpoint it is my finding, supported by plethora of judicial authorities, that the prosecution is not duty bound to call all witnesses. In JOEL ADAMU V. THE STATE (2017) LPELR – 41436 (SC), the apex Court while pronouncing on the discretion of the prosecution in calling witnesses, held thus: -<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“As rightly submitted by learned counsel for the respondent, the prosecution has the discretion to call whatever number of witnesses it deems necessary to discharge the burden of proof. See: Ochiba Vs. The State (1991) 3 NWLR {Pt. 182} 645. Indeed, the evidence of a single witness if credible and cogent, is sufficient to ground a conviction. See Babarinde Vs. The State (2013) 12 SCNJ 316; Sule Vs. The State (2009) 17 NWLR {Pt. 1169} 33 at 57 – 58….” Per KEKERE-EKUN, JSC at pages 17 – 18 paragraphs F C.
The apex Court was more succinct on this issue when it held in TAIYE V. STATE (2018) LPELR – 44466 (SC) per SANUSI, JSC thus:
“…. With due deference to the learned counsel for the appellant, there is no Law which imposes an obligation on the prosecution to call list or host of witnesses. The prosecution is merely needed to call enough material witnesses to prove its case and in doing so it has the discretion in the matter on who to call and who not to call. See Oduneye Vs. The State (2001) 13 WRN 88; Agbi Vs. Ogbeh (2006) 11 NWLR {Pt. 990} 65; Babuga Vs. State (1996) 7 NWLR {Pt. 460} 279. In fact,

even a murder case can be established by evidence of only one witness provided his evidence is credible and believed by the trial Court. See Effiong Vs. State (1998) 8 NWLR {Pt. 562} 362.”
It was within the discretion of the prosecution to call the number of witnesses that was sufficient to establish the elements of the offences for which the Appellant and his co-defendants were charged. Therefore the testimony of the prosecution witnesses had established the fact of how the Appellant and his co-defendants were arrested while in possession of the fakes notes.

In his testimony at page 192 of the Records, PW3 testified that: –
“I am here to testify against these suspects that were sometime arrested by my men at Girei checkpoint in March, 2017. They were brought to me in possession of N5,504,000.00 suspected to be fake currency of N1,000 notes all bearing the same serial number and date of make. The serial number is A/16 776 544 and being the same number. So hence I made contact with one Cletus who is a staff with the ICPC so I transferred them alongside the exhibits officially to the ICPC with a letter signed when I was a captain….”

This piece of evidence was not controverted during cross-examination by the Appellant thus deemed as admitted, and I so hold. The implication is that the Appellant admits being at the point of arrest and recovery of the fake notes. In fact his name is No. 3 on the Handover note between PW3 and PW1 at pages 19 – 20 of the Records. See DAHIRU V. THE STATE (2018) LPELR – 44497 (SC) and ISAH V. THE STATE (2017) LPELR – 43472 (SC).
As for Exhibits D and D1, the confessional statements of the 1st and 5th Defendants which implicated the Appellant, it was tendered in evidence and admitted without objection by the Appellant. The apex Court held, on the implication of a party not raising timely objections to the tendering of an exhibit, in TAOFEEK ADELEKE V. STATE (2013) LPELR – 20971 (SC) per MUNTAKA-COOMASSIE, JSC thus: –
“With due respect where a counsel stands by and allows exhibits to be tendered smoothly to become evidence without any objection he cannot be heard to later complain about same. They thus become legally admitted evidence which the Court can rely on. See Bello Shurumo V. The State

(2010) 12 SCNJ 109, and Oseni V. The State (2012) 2 SCNJ 215 at 253.”
It is my finding that the learned trial Judge was right when he found that based on Exhibits D and D1, the role played by each of the Defendants with respect to the offence of conspiracy signifying an agreement among the Defendants have been proved beyond reasonable doubt. The said Exhibits D and D1 having been made available to the Appellant as 2nd Defendant and the 3rd and 4th Defendants can be used against the said Defendants. See YONGO V. COMMISSIONER OF POLICE (1992) 2 NWLR {Pt. 257} 36. Exhibits D and D1 having not been controverted during trial are deemed admitted by the Appellant as 2nd Defendant. See ADELEKE V. THE STATE (2013) LPELR – 20971 (SC). I also resolved this issue against the Appellant.

It is my finding that the prosecution led credible and uncontroverted evidence in proving the offences of possession of counterfeit notes and conspiracy against the Appellant and his co-defendants. The learned trial Judge was right when he convicted and sentenced the appellant for the offences of conspiracy and possession of counterfeit currency in his judgment

delivered on 6th February, 2020 in Charge No. FHC/YL/45C/2017. This appeal therefore lacks merit and it is hereby dismissed.

CHIDI NWAOMA UWA, J.C.A.: I read before now a draft copy of the judgment delivered by my learned brother, BITRUS G. SANGA, JCA. I agree with his reasoning and decision arrived at in dismissing the appeal for lacking in merit. I also dismiss it for the same reasons. I affirm the judgment of the trial Court.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today a copy of the draft judgment just delivered by my learned brother Bitrus Gyarazama Sanga JCA. I adopt the judgment as mine with nothing further to add.

Appearances:

P. ATSEV, ESQ. with him, W. N. BELLO, (MRS.) For Appellant(s)

SHEDRACH OSIAJE EGHWERE (MRS.) – for 1st Respondent.
For Respondent(s)