PETER USHIE V. THE STATE (2012)

PETER USHIE V. THE STATE

(2012)LCN/5555(CA)

In The Court of Appeal of Nigeria

On Monday, the 9th day of July, 2012

CA/C/72C/2010

RATIO

CRIMINAL LAW: MEANING OF CONSPIRACY

Conspiracy is an agreement between two or more persons to do an act which is an offence to agree to do. Nwosu vs. State (2004) 15 NWLR pt 897 page 466, Amachire vs. Nig Army (supra). Conspiracy may be inferred from the facts of doing things towards a common end, Aje v. State (2006) 8 NWLR Pt.982 page 349. PER UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: WHETHER A COURT CAN CONVICT ON CIRCUMSTANTIAL EVIDENCE

A court can convict an accused on circumstantial evidence if that circumstantial evidence leads to no other conclusion, namely, the guilt of the accused. See the case of Ubani v. State (2003) 18 NWLR Pt.851 page 22. PER UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: STANDARD OF PROOF AND BURDEN OF PROOF IN CRIMINAL TRIALS

The standard of proof in a criminal trial is proof beyond reasonable doubt. If the evidence adduced by the prosecution is so strong against an accused as to leave only a remote possibility in his favour then the case is proved beyond reasonable doubt, but nothing short of that will suffice. see Agbo vs. state (2006) 6 NWLR pt 977 page 545 Ugwuagboe vs. State (2007) 6 NWLR pt 1031 page 606.

In a criminal trial such as this, the burden of proof lies, throughout, upon the prosecution to establish the guilt of the accused persons beyond reasonable doubt and it never shifts. Ani vs. State (2003) 11 NWLR pt 830 page 142, Ifejirika vs. State (1999) 3 NWLR pt 593 page 59, Igabele vs. State (2006) 6 NWLR pt 975 page 100. PER UZO I. NDUKWE-ANYANWU, J.C.A.

CRIMINAL LAW: MEANING OF A CONVICTION

A conviction is an act of a court of competent jurisdiction adjudging a person to be guilty of a punishable offence. There cannot be sentence without a conviction See Mohammed Vs. Olawunmi (1993) 4 NWLR pt 287 Page 254. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

PETER USHIE – Appellant(s)

AND

THE STATE – Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on 18th February, 2010, convicting the Appellant for conspiracy and sentenced him to 5 years imprisonment.

Being dissatisfied, the Appellant filed his notice of appeal with 4 grounds.

The Appellant filed his Appellant’s brief on 2nd November, 2010 but deemed properly filed and served on 3rd April, 2012.

The appellant articulated 2 issues for determination as follows:

1. Whether the trial court was right to have held that the offence of conspiracy was proved by the prosecution against the Appellant beyond reasonable doubt. (Grounds 1, 2, and 4).

2. Whether the sentence of the Appellant to 5 (five) years imprisonment by the trial court was correct, justifiable, or legally tenable (Ground 3).

The Respondent filed its Respondent’s brief on 27th March, 2012 and deemed properly filed and served on.

The Respondent adopted the 2 issues articulated by the Appellant.

The Appellant was a civil servant in the employment of the Cross River State Government and was attached to the State Sports Council as the accountant. It was alleged that he conspired with Edu Enya Evemili and Gabriel O. Etim, a cashier in the Ministry to defraud the Cross River State Government. The Appellant had allegedly arranged with PW1 who had ceased to be a civil servant to receive his 3 months salary fraudulently. The PW1 then contacted the security operatives in the Government House who arranged and arrested the 3 accused persons.

Three of them were charged with conspiracy and theft of several sums of money being unclaimed salaries of non-existent civil servants.

The matter went to full trial and at the end of which the trial Judge delivered its considered judgment. The trial court found 1st and 2nd accused persons guilty of conspiracy and stealing. The 1st accused now Appellant was sentenced to 5 years imprisonment on count one ie conspiracy.

ISSUE 1

The learned counsel to the Appellant submitted that in a charge for conspiracy; the prosecution had to prove;

1. That there was an agreement between the accused persons to execute an agreed act.

2. That the agreed act is unlawful.

The prosecution must prove that the accused persons have formed a common intention to commit unlawful act See Aituma vs State (2007) 5 NWLR pt 1028 page 466, Amachree vs. Nig Army (2003) 3 NWLR pt 807 page 256, Kaza vs. State (2008) 7 NWLR pt 1085 page 125. Counsel argued that it was only the evidence of PW1 that connected the Appellant to the crime and the trial Judge relied on it.

Counsel submitted that the prosecution failed to bring any of the Policemen that arrested the Appellant.

Also the person, the PW1 said the Appellant left the notes with. Counsel argued that even though the prosecution does not have to call all listed witnesses must ought to call vital one. See Tegwonor v. The State (2008) All FWLR Pt.424 page 1484, Usufu v. The State (2007) 1 NWLR Pt.1020 page 94.

Counsel argued that the fact that 2nd accused person went to All State Bank to help the PW1 collect his salary is not conclusive of their having an understanding between the two for a common purpose. The 2nd accused could have gone to the bank in the course of his job.

Counsel submitted that prosecution ought to prove both mens rea and actus reus to ground an offence of conspiracy See Harb vs. FRN (2008) All FWLR pt 430 page 705. Counsel submitted that the trial Judge was in error when he believed that the mere presence of the 2nd accused in the bank to aid the PW1 was sufficient proof of an agreement.

Counsel urged the court to hold that the prosecution did not prove that the PW1’s appointment had been terminated. The Appellant and 2nd accused might just have been trying to help PW1s collect the arrears of his salary. They did not have the intention to steal money belonging to Cross River State government.

Counsel conceded that in all cases of conspiracy the court would have to rely on circumstantial evidence since it is usually conceived in secrecy. See Odiawa vs. FRN (2008) All FWLR pt 439 page 436, Tijani vs. Shehu (2010) 41 NSGQR, Vol. 2 page 1280, Mohammed v. The State (2007) 13 NWLR Pt.1050 page, Shehu v. The State (supra).

Counsel submitted further that where circumstantial evidence is capable of two possible interpretation, the doubt should be resolved in favour of the accused. See Orji Vs. The State (2008) 10 NWLR Pt. 1094 page 31, Abdulraufu v. The State (2008) All FWLR Pt.410 page 709.

Counsel submitted that the second ingredient of the offence of conspiracy is that what was agreed to

be done must be an unlawful act. The prosecution’s case was that the Appellant and the 2nd accused person conspired to steal or collect money belonging to Cross River State. The onus was on the prosecution to prove that the money in the bank was the money of Cross River State Government. Also to prove that the PW-1 was not still in the civil service. Learned counsel submitted that the prosecution did not tender PW1’s termination letter in proof of their case. The prosecution did not also prove that the money alleged stolen was that of Cross River State Government. The accused persons tendered Exhibit A and G to prove that the PW1 was still in the employ of Cross River State Government. Learned counsel for the Appellant opined that exhibit A and G picked holes in the prosecution’s case. Any doubt should be resolved in favour of the Appellant. See Ojo v. FRN (2008) 11 NWLR Pt.1099 pg 467.

The learned counsel to the appellant submitted finally that the prosecution had failed to prove the two

ingredients of conspiracy against the appellant beyond reasonable doubt. Counsel therefore urged the court to resolve this issue in favour of the Appellant.

The learned counsel for the State/Respondent submitted that under section 518 (6) of the Criminal Code, the prosecutor must prove that:

(a) There was an agreement by two or more persons to execute an act.

(b) That the agreed act is unlawful i.e. that the persons charged held formed a common intention of committing an unlawful act.

counsel went on to argue that PW2 corroborated the testimony of PW1 that he was laid off and had not collected his salaries between November, 2001 and March 2002. 2nd accused person did not deny he was in the bank to aid PW1 claim the 3 months salaries as instructed by the Appellant.

There was an agreement between Appellant and 2nd accused person and PW1 who later reported the conspiracy to the Government House Security.

Learned counsel referred the court to the case of Chukwu vs. The State (2007) All FWLR pt 389 page 1231 where the court held “that intention can properly be inferred from facts, evidence and circumstances of a given case, since it is rarely disclosed or made manifest by an accused person”

Finally learned counsel to the respondent submitted that:

“A conspiracy is complete if there are acts on the part of an accused person which lead the trial court to the conclusion that he and others were engaged in accomplishing a common objective”. See Kaza v. The State (2008) 3 NCC page 374.

Counsel urged the court to hold that once the offence is the probable consequence of the act, each of them is deemed to have committed the offence. It is not necessary that there should be direct communication between the conspirators but the criminal design alleged must be common to all. See Erem vs. The State (l994)18 A LRCN page 73.

Counsel urged the court to resolve this issue against the Appellant.

Conspiracy is an agreement between two or more persons to do an act which is an offence to agree to do.

Nwosu vs. State (2004) 15 NWLR pt 897 page 466, Amachire vs. Nig Army (supra). Conspiracy may be inferred from the facts of doing things towards a common end, Aje v. State (2006) 8 NWLR Pt.982 page 349.

The Appellant contacted PW1 whom he knew had been laid off. PW1 said he had come to his house twice to discuss the 3 months salary with him.

To prove the conspiracy of Appellant and 2nd accused person, the prosecution led PW1 in evidence, where he told the story of how he was contacted by the Appellant. The appellant had told him to go to the bank on a certain day. He failed to go and Appellant persuaded him to go. PW1 agreed but reported to the Security in the Government House.

The appellant had confirmed to him that the 2nd accused would be there to assist him in getting the money on the agreement that they should get part of the money.

The Security operatives organized and went to the bank with the PW1 where he met 2nd accused who indeed assisted him in getting N68,000 as his 3 months salary. The 2nd accused was thereafter arrested as he was leaving the bank.

The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the suspects. The appellant was the one who informed PW1 of the outstanding salaries. He knew that the PW1 had been laid off. PW1’s name is not supposed to be in the payroll of the Ministry of Sports as of the time of the alleged crime.

Appellant was the one who pressurized PW 1 to go to the bank. Appellant also sent 2nd accused to the bank to assist PW1. Appellant and 2nd accused were in concert to get the money paid to the PW-1 so they can get a share of it.

Why was the 2nd accused in the bank if not to further the conspiracy to defraud the Cross River State Government? The courts tackle the offence of conspiracy as a matter of inference to be deduced from certain criminal acts or inactions of the parties concerned. See Oduneye vs. The State (2001) 13 WRN pg 88. The bottom line of the offence of conspiracy is the meeting of the minds of the conspirators. Nwosu v. The State (2004) 15 NWLR Pt.897 page 466.

There cannot be a conspiracy unless there is a concluded agreement. Mere negotiations are insufficient. The offence of conspiracy is complete as soon as the parties agree. It is difficult to prove the offence of conspiracy. It is a matter of inference from certain acts of the parties. Consequently, in a charge of conspiracy, the actual commission of the offence is not necessary to ground a conviction for conspiracy. All that is needed is a meeting of the minds. Nwosu vs. State (supra) Obiakor vs. State (2002) 10 NWLR pt 766 page 612, Dabor vs. State 1977 5 SC page 197.

In the instant case, there was a meeting of the minds of the conspirators. Appellant and 2nd accused had agreed on how to defraud the Cross River State Government with the aid of PW1. The crime of conspiracy had been committed which facilitated the withdrawal of the 3 months salary of PW1 knowing fully well that he has been dismissed from the service of Cross River State Government. In Nwosu vs. The State the court held that In a conspiracy proceeding evidence of what one accused says in the absence of the other conspirators is admissible against such others on the basis that, if they are all conspirators what one of them says in furtherance of the conspiracy would be admissible evidence against them, even though it might have been said in the absence of the other conspirators. This statement of law is thus an exception to the rule of hearsay. Nwosu vs. State (2004) 15 NWLR (pt.897) 466.

The learned counsel to the Appellant had argued that the trial Judge cannot convict the Appellant on circumstantial evidence. That is not the law. A court can convict an accused on circumstantial evidence if that circumstantial evidence leads to no other conclusion, namely, the guilt of the accused. See the case of Ubani v. State (2003) 18 NWLR Pt.851 page 22.

In the instant case, the prosecution proved that, the Appellant orchestrated the conspiracy to steal funds from Cross River State Government. Appellant approached the PW1 and also organized 2nd accused to position himself in the bank to assist the PW1 in collecting the money. There was a meeting of the mind in this relationship to ground the charge of conspiracy against the Appellant. This issue is therefore resolved against the Appellant.

Issue 2

Learned counsel for the Appellant submitted that the Appellant was charged with conspiracy, contrary to S.518 (6) of the criminal Code, Cap.31 Vol.11 Laws of Cross River State of Nigeria, 1983 which provides as follows.

s. 518 (6) Any person who conspires with another to effect any of the following purposes:-

“(1) …

(2) …

(3) …

(4) …

(5) …

(6) to effect an unlawful purpose; or

(7) …

Is guilty of a misdemeanour and is liable to imprisonment for two years.”

The trial Judge sentenced the Appellant to five (5) years imprisonment on count 1 which is conspiracy.

The punishment as stipulated in s. 518 is two (2) years.

This is the maximum:

1. Section 17(1) and 3 of the Interpretation Act, cap. 123, Laws of the Federation of Nigeria, 2004, which Provides:

“17(1) Where a punishment in respect of an offence is provided by an enactment, the enactment shall he construed as providing that an offence snail be liable in pursuance of the enactment to a punishment not exceeding the punishment so provided.

17(3) Where a punishment is set out at the foot of an enactment, the enactment shall be construed as providing that a contravention of the enactment shall be an offence for which an offender shall be liable, subject to Sub-section (1) of this section, to the punishment so set out”

2. Section 36(8) of the Constitution of the Federal Republic of Nigeria, 1999, which provides:

“No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.”

(underlining ours) SEE ALSO QUEEN VS. EYO (1962) ALL NLR, P.515.

Learned counsel submitted that the trial Judge went beyond his powers of sentencing on this charge. Counsel urged the court to set the sentence aside or review it.

The learned counsel for the Respondent submitted that the trial Judge had a discretion in matters of sentencing but it must be exercised judicially and judiciously. It is however desirable that in exercising its discretion, over sentencing, a trial court should state in its judgment the factors that influenced its decision.

See Iortim vs The State (1997) 2 NWLR pt 490 page 711. An appellate court will not interfere with the sentence imposed by a trial court unless it is manifestly excessive in the circumstances or wrong in principle see Iortim vs. State (supra).

Counsel Re-iterated that where the statute or the law creating or defining the offence expressly prescribes that there is no option of fine, the court cannot impose fine. Where however, the statute is silent, even if it only mentions imprisonment and is silent on the fine, the courts have a discretion to impose a fine in lieu of imprisonment. See Apamadari & Anor vs. The State (1997) 5 NWLR pt 493 page 289.

Counsel conceded that where the trial court imposes a sentence in excess of the maximum sentence provided by the law for the offence charged, an appellate court will set aside the sentence and impose in its place, a sentence within the powers of the trial court to impose. See Agbanyi v. The State (1995) 1 NWLR Pt.369 page 1.

The learned counsel for the State urged the court to dismiss this appeal and affirm the conviction of the Appellant and may vary the sentence.

A trial court has a discretion in matters of sentence, however, this discretion must be exercised judicially and judiciously. Also a trial Judge must state the factors that influenced its decision. Iortim vs- The State (supra) The trial court stated what influenced his decision thus:

“Courts must be serious in punishing corruption if we are to make any head way in fighting that cancer in our society”

This is the factor that influenced his decision. However what a court must never do is to pass any sentence in excess of that provided by the law. In sentencing an accused person, the court must exercise its discretion judicially and judiciously Iortim v. The State (supra) Apamadari vs. State (supra).

The term of years imposed by section 518 Criminal Code of Cross River State of Nigeria 1983 is two (2) years. The trial Judge was therefore in error when he sentenced the Appellant to five (5) years imprisonment.

The trial Judge can only exercise its discretion within the armbit of his jurisdiction. The maximum sentence is two (2) years.

Where a trial Judge exceeds the term of years imposed by the statute, the appellate court on appeal shall set it aside and impose in its place, a sentence within the powers of the trial court. Agbanyi vs. The state (supra).

The learned counsel to the Appellant had urged the court to consider an option of fine in the circumstance of this case as the Appellant was not convicted of stealing any money.

The court can successfully convict an accused person for conspiracy to commit an offence notwithstanding that the substantive offence has not been successfully proved. This is because, conspiracy to commit an offence is a separate and distinct offence which is independent of the actual commission of the offence to which the conspiracy is related.

Consequently, the offence of conspiracy may be fully committed even though the substantive offence may be abandoned or aborted or may have become impossible to commit. See Balogun vs. Attorney General of Ogun State (2002) 6 NWLR pt 763 page 512.

The law is that where the statute is silent, even if it only mentions imprisonment and is silent on fine, the courts have a discretion to impose a fine in lieu of imprisonment. See Iortim vs. State (supra) Apamadari vs. state (supra). s. 518 of the criminal Code Cap. 31, Vol. 11 Laws of Cross River State of Nigeria, 1983 is silent on the option of fine. This means that the trial Judge can exercise his judicial discretion if he is minded to substitute a term of imprisonment for an option of fine.

The trial Judge was obviously in error when he sentenced the Appellant to five (5) years imprisonment where the statute provides for two (2) years maximum sentence. This is a proper case where the appellate court ought to set the sentence of the trial court aside and substitute the right term of years within the powers of the trial court. This issue therefore succeeds.

This appeal succeeds in Part.

The 1st issue was resolved against the Appellant while the 2nd issue succeeds.

The sentence of the trial court of five (5) years is set aside and is substituted by two (2) years imprisonment for the reasons expressed by the learned trial Judge.

JOSEPH TINE TUR, J.C.A.: I read in advance a copy of the judgment delivered by my Lord, Uzo I. Ndukwe-Anyanuuu, JCA and I concur.

I shall make additional comments by reference to Patrick Njovens vs. The State (1973) NNLR 76 on what Coker, JSC said on the issue of conspiracy at page 95 to wit:

“..It is true that both the famous and the infamous gave evidence at the trial of the accused persons. When it is proposed to give evidence of the happenings inside hell it is only the matter of common sense to call one of the inmates of that place or one whose business is carried out in reasonable propinquity to hell and it must be surprising indeed to find even a lone angel fit and qualified for the assignment. Indeed, it would be preposterous to look for such evidence in other directions…”

The appellant happened to be the Accountant in the Sports Council where Mr. Edu Enya Evemili was the cashier.

Both had knowledge of the fact that though Mr. Otu Ikang Otu (Pw1) was no longer in the service of the Sports Council, his salary was still being paid. They knew they could help Mr. Otu Ikang Otu to claim same. Mr. Otu (pw1) testified at page 52 lines 6 to page 53 tines 1-3 of the printed record as follows:

“I return to my house to receive information that 1st accused had come to my house looking for me. I went to the office but he was not there. He drove in and met me by the gate on my way out. He took me in his car to cultural centre, Calabar. There were 2 other persons in the car who I did not know.

He informed me at the cultural centre that he has some money at the Bank for me to collect. That before I left service I had done my image capturing. That I should go to All States Trust Bank the next day being Friday, 12/7 where I will meet 2nd accused. That he will lead me to get my 3 months salary amounting to N68,406.99. That I will take N40,000.00 of the money.

When I got home I decided against it. On Friday 1st accused came to my house and dropped a message. He returned on Saturday-morning and met me. I promised him I will go to the bank on Monday. On Sunday we met along Mayne Avenue and he Furthers pressed that I should go to the bank on Monday.

On Monday morning I reported to the Chief Security officer of the Governor in his house. He took me to Governor’s lodge where he reported to Governor who gave me an order that I should be led to the bank so they could arrest the people involved. I was taken to Governor’s office.

SSS and Police officers accompanied me to the bank where I met 2nd accused. He handed me a paper (authority that bank should pay me). I was… cultural centre. 1st and 2nd accused persons never mentioned 3rd accused to me as one of the beneficiaries of the booty. The transaction/discussions started on 12th July, 2002 and I reported on 15th July, 2002 before going to the bank.”

The appellant was the fulcrum by which conspiracy to defraud the Cross River State Government revolved. In Oyediran & Ors. vs. The Republic (1966) NSCC 252 the appellants conspired by means of false vouchers to steal various sums of moneys belonging to the Federal Government of Nigeria from the Government Treasury Offices in parts of the defunct Western and Northern Regions of the Republic. These vouchers were tendered at the trial. The 6th appellant was a temporary clerk in the Ministry of Establishment, Lagos and was in charge of the dispatch of pension vouchers from where they were prepared and dispatched to stations outside Lagos for payment of gratuities and pensions to retired officials. The 1st, 2nd, 3rd and 4th appellants confessed to have participated in the commission of the offences on the prompting of the 6th appellant and the 5th, a Radiographer at the University Teaching Hospital, Lagos. On the issue of conspiracy the Supreme Court had this to say at page 257 lines 48 to page 258 tines 1-27 of the judgment:

“It is manifest that once conspiracy is proved to exist, evidence admissible against one conspirator is also admissible against the other or others. Section 11 of the Evidence Act is clear on this. See also The Queen vs. Anthony Enahoro. It is not necessary in order to establish conspiracy that the conspirators should know each other, or like those who murders Julius Ceasar, that they should be seen together coming out of the same premises at the same time. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. As Hewart, L.C.J. observed in R. vs. Meyrick & Another:

“It seems to us that it was clearly put to the jury that in order to find these persons, or any of them, guilty of the conspiracy charged in the first count of this indictment, it was necessary that the prosecution should establish, not indeed that the individuals were in direct communication with each other, or directly consulting together, but that they entered into an agreement with a common design. Such agreements may be made in various ways. There may be one person, to adopt the metaphor of counsel, round whom the rest revolve. The metaphor of the centre of a circle and the circumstance. There may be a conspiracy of another kind, where the metaphor would be rather that of a chain; A communicates with B, B with C, C with D, and so on to the end of the list of conspirators. What has to be ascertained is always the same matter: is it true to say, in the words already quoted, that the acts of the accused were done in pursuance of a criminal purpose held in common between them?”

The 6th appellant did not give evidence at the trial but the learned trial Judge found, and we think he rightly found that:

“Without the co-operation of the 6th accused by virtue of the office which he hold it would be impossible for anybody to get the information or know the procedure for payment of money as gratuity outside the Federal Territory of Lagos. I am satisfied that the 6th accused was the brain behind this fraud.”

We are satisfied that the 6th appellant was the hub around which the others revolved and there was a plethora of evidence establishing his complicity in the conspiracy.”

I am also satisfied from the evidence adduced that the appellant being the hub around which the conspiracy revolved was rightly convicted by the learned trial Judge.

In this case, PW1 was a lone angel, fit and qualified to give evidence to nail the appellant for the offence of conspiracy as charged. There is no substance in this appeal.

It is for the fuller reasons given by my Lord, I also dismiss the appeal and abide by the orders reducing sentence to two years.

SAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Uzo I, Ndukwe-Anyanwu, JCA gave me the opportunity of reading the draft of the judgment just delivered in this appeal. I adopt the reasons well articulated therein and agree that the appeal is unmeritorious. I dismiss the appeal and abide by the consequential order reducing the five (5) years imprisonment to two (2) years.

Appearances

B. Olusegun, Esq.,For Appellant

AND

John U. Ogban, Esq.For Respondent