MATHEW SONOMA V. INSPECTOR GENERAL OF POLICE (2013)

MATHEW SONOMA V. INSPECTOR GENERAL OF POLICE

(2013)LCN/6271(CA)

In The Court of Appeal of Nigeria

On Friday, the 7th day of June, 2013

CA/A/382C/2012

JUSTICES

ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

MATHEW SONOMA
(ALIAS DR. PEREKABOWEI OGAH) Appellant(s)

AND

INSPECTOR GENERAL OF POLICE Respondent(s)

RATIO

WHETHER OR NOT AN ACCUSED PERSON MUST BE INFORMED PROMPTLY IN THE LANGUAGE HE UNDERSTANDS, THE NATURE OF THE OFFENCE HE IS ALLEGED TO HAVE COMMITTED

One of the cardinal principles of our criminal jurisprudence is that where an accused person is charged with a criminal offence, he shall be informed promptly in the language he understands and in detail of the nature of the offence he is alleged to have committed, so also shall he be so informed and fresh plea taken when such a charge has been amended. Nothing should be left for speculation otherwise failure to comply strictly shall render the whole trial a nullity -OLABODE v STATE (2009) 11 NWLR (pt. 111152) 254 at 258; ADENIYI v STATE (2001) 25 WRN 117 at 120. PER AKOMOLAFE-WILSON, J.C.A.

WHETHER OR NOT INGREDIENTS OF AN ALLEGED OFFENCE MUST BE CLEAR FROM THE FRAMING OF THE CHARGE
It is trite law that an accused person must be given every opportunity to know the case he is being accused from each of the count in the charge. The ingredients of the offence must be clear from the framing of the charge. I am not in tune with the submission of the learned counsel for the Respondent that the elements of a charge to be proved by the prosecution are those provided by the section under which the accused is charged; and not in the charge framed against the accused person. This in my view is a faulty argument. An accused person can only be charged for an offence created by law. In charging the accused, essential elements upon which he is charged must be captured in the charge. Each count which complains about the conduct of an accused person must be specific and precise. The particulars of the offence must state the specific criminal conduct upon which the accused is arraigned otherwise. In other words each count of the charge as framed must contain dispositions disclosing an offence against the accused person, otherwise an accused person can be discharged on such a defective charge. See OJO v F.R.N. (2008) 11 NWLR (pt. 1099) 467 at 513-514, EDET v STATE (2008) 14 NWLR (pt. 1106) 52 at 65-66, para H-A.
Section 7(2) (b) of the Advance Fee Fraud and other Related Offences Act, 2006, quoted in count 15 of the charge is actually the punishment section. The section for the offence is 7(1)(b)(i) which states –

7(1) “A person who conducts or attempt to conduct a financial transaction which in fact involved the proceeds of a specified unlawful activity: …

(b) Where the transaction, is designed in whole or in part

(i) to conceal or disguise the nature, the location, the source, the ownership or the control of the proceed of a specified unlawful activity …..” (Underlining for emphasis). PER AKOMOLAFE-WILSON, J.C.A.

THE MEANING OF THE PHRASE “UNLAWFUL ACTIVITY”

A cursory examination of the words of this enactment depicts that the phrase “unlawful activity” must be specified. This is to say that the financial transaction which involves an unlawful activity must be identified, it must be named in the charge for the understanding of the accused person. The “activity” must necessarily be tied to an unlawful transaction for it to be an offence, as the phrase “unlawful activity” itself is vague. This means that the “unlawful activity” must be particularised by the prosecution for clear understanding by the accused person. If the words “unlawful activity” are substituted for the word “fraudulently” in count 15, simplicita without any more, it is obvious that the charge would be inadequate and vague. The drafters of the law, being conscious of the abstract nature of the phrase, defined “specific unlawful activity” under S. 7(6)(h) of the Act to mean –

(i) any act or activity constituting an offence under this act;

(ii) with respect to a financial transaction occurring in whole or in part in Nigeria, an offence against the laws of a foreign nation involving obtaining property by whatever name called.”

A consideration of this provision evinces the fact that the activity must necessarily be tied to an offence under this Act. It is not in doubt that this whole Act, or legislation is in respect of offences pertaining to fraud. In construction of statues, it is a cardinal principle of law in the interpretation of legislation to know the intention of the legislation which led to the enactment and the mischief which the law intends to cure. Thus, even though the title or explanatory note does not form part of the Act nevertheless, it exposes the intention of the legislator which is important for the comprehension of each legislation See J. ONYEBUCHIEZE v FED. REPUBLIC OF NIGERIA (1987) 2 SCNJ 76 at 87. The title of this law, is -ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT. Directly underneath it is what I may describe as the explanatory note and it states –
“An act to prohibit certain offences pertaining to advance fee fraud and other related offences and to repeal other acts related therewith.”
It is crystal clear from the above that this legislation deals with offences pertaining to fraud.
In relation to the offences under the Act with regard to the case at hand, section 1 (1) and (2), in obtaining property by false pretence etc. is material. It states –

“1 (1) Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud –
(a) obtains, from any other person, in Nigeria or in any other country, for himself or any other person; or
(b) induces any other person, in Nigeria or in any other country, to deliver to any person, any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.

TINUADE AKOMOLAFE-WILSON, J.C.A. (Delivering the Leading Judgment): The appellant, the 1st accused person was charged along with another at large at the Federal High Court, Abuja on fifteen (15) count charge of criminal conspiracy, fraud and concealment of the money defrauded contrary to Sections 8, 1(3) and 7(2)(b) respectively of the Advance Fee Fraud and Other Related Offences Act, 2006. The nominal complainant was one Ambassador Sam Edem (former Chairman of NDDC). Count one of the charge was for criminal conspiracy, counts 1-14 for defrauding Ambassador Sam Edem of various sums of money totaling about N800 million at different dates while count 15 was for the concealment of the money allegedly obtained from Ambassador Sam Edem. To establish the case against the appellant, the prosecution called twelve witnesses and tendered 45 exhibits. At the close of the case for prosecution, a no-case submission was made whereupon the appellant on 23rd April, 2010 was discharged on counts 1 -14 and was called upon to defend himself on count 15. Subsequently, on 1st June 2010, the prosecution filed a motion to amend the charge but same was refused by another ruling considered by the learned trial Judge on 21st July 2010; on the ground that if successful, would have brought back counts 2 -14 of the charge sheet. Thereafter, the appellant opened his defence, called a witness who testified as DW1 while he testified for himself as DW2. At the conclusion of the case, the learned trial Judge found the appellant guilty, convicted him and sentenced him to seven years (7) imprisonment with hard labour, on count 15 of the charge.
Being dissatisfied with the judgment, the convict/appellant filed a Notice of Appeal to this Honourable Court containing twelve (12) grounds.

After the conviction, the prosecution, on behalf of the respondent applied to court for an order of forfeiture of the vehicles tendered as exhibits, the monies in the account and a storey building all belonging to the appellant but the learned trial Judge refused the application on the ground that the prosecutor did not appropriate evidence before the court on these exhibits. The court left the issue of forfeiture to abide the decision of the Court of Appeal.
Dissatisfied with the decision of the trial court on the issue of forfeiture, the respondent cross-appealed to this Honourable Court on two grounds.

The grounds of appeal in the main appeal are as follows:

1. GROUND ONE
“The learned trial Judge erred in law and in facts in convicting the accused person hereafter referred to as the Appellant and sentenced him to seven years imprisonment with hard labour on count 15 as charged when from the provisions of the Advance Fee Fraud Act of 2006 including the charge as drafted and the facts in support of the case, the said count 15 was an ancillary or consequential charge dependent on the success of counts one to fourteen which the trial Judge upon a no case submission discharged the Appellant because the Prosecution failed woefully to prove the said charges and thereby came to a wrong decision.

2. GROUND TWO
The learned trial Judge erred in law by not identifying fraudulent “taking or collecting of money” as one of the essential element/ingredients of the offence which the Prosecution must prove before the Appellant can be convicted on count 15 having regard to the provisions of Section 7(1)(b) of the Advance Fee Fraud and Other Related Offence Act 2006 as well as count 15 as drafted by the Prosecution including the evidence adduced in prove of the charges and count 15 in particular and thereby came to a wrong decision.

3. GROUND THREE
The learned trial Judge erred in law and facts in looking at the element/or ingredient of concealment only upon which he made an inference of unlawful activities without any iota of evidence from the Prosecution witnesses in support of this essential ingredient for the offence before the Court convicted the Appellant in court 15 and thereby came to a wrong decision.

4. GROUND FOUR
The learned trial Judge erred in law and against the trite position of the law and criminal jurisprudence by placing the burden of proof on Appellant to prove his innocence and thereby came to a wrong decision.

5. GROUND FIVE
The learned trial Judge having held and found in the Judgment that: “it was the purpose and method by which the said monies were collected that I was unable to reconcile with allegation of threat and/or inducement when PW8 as the nominal complainant told the court contrary to the statements he made with the police among other things that the various sum of money which he paid to 1st accused (now Appellant) were either loans or friendly gift and those which are loans, the 1st Accused person has promised to pay back” could not in law and fact convict the accused person on count 15 having regard to the facts the court accepted as evidence or PW8 the nominal complainant and thereby came to a wrong decision.

6.GROUND SIX
The learned trial Judge did not properly evaluate and properly do so the evidence of the Prosecution witnesses particularly PW8; the nominal complainant in order to secure a conviction in count 15 of the charges. On the contrary the Court relied only on the evidence perceived to be against the Appellant and a very detailed and one sided evaluation of evidence of Appellant and that of DW1 to hold that the Prosecution proved count 15 beyond reasonable doubt by convicting the Appellant and thereby came to a wrong decision.

7. GROUND SEVEN
The learned trial Judge based his Judgment of proof of unlawful activities and concealment as required by section 7 (1)(b) of the Advance Fee Fraud Act 2006 not on any evidence but on mere suspicious speculation, probability and sentiment because of the huge amount involved without proof of the elements of the offences when he held thus:
“It seems that the total sum involved is over N715 million. These are payments made for “service”
he rendered to Ambassador Sam Edem and for “work done”. It is surprising that the 1st Accused person never produced any document to show the kind of “service” he rendered to PW8 or of any letter of instruction from PW8 to him for a contract of service(s) of about N800 million -because, he still says that the PW8 is still owing him over N200 million. Again, he never showed any evidence, even a photocopy or carbon copy of any receipt he had issued to acknowledge receiving “fees” for the “services” he rendered or “work done” for PW8. These are strong circumstantial evidence which inevitably point to a probable conclusion that the alleged payments made to him by PW8 or which he obtained from PW8 for unspecified matters not legally provable by admissible evidence known to law, were proceeds of “unlawful activities”. It is the desperation he exhibited to liquidate the funds and to disguise its location or origin by the new account he opened in Warri Branch of the same Oceanic Bank with a different name that betrayed as it were, the legitimacy of the funds as proceeds of “unlawful activities.”

8. GROUND EIGHT
There was no basis in law and fact for the trial Judge holding that there was concealment of the proceeds of unlawful activities of Appellant with the nominal complainant including the Court disbelieving the evidence of the DW1 and the Appellant while evaluating the evidence in the case and thereby came to a wrong decision.

9. GROUND NINE
The learned trial Judge did not give the benefit of doubt to the Appellant as required by law with respect to so many of the facts relied as proved by the Prosecution which made the Court to convict the accused and thereby came to a wrong decision.

10. GROUND TEN
The learned trial Judge erred in law when he held that count 15 can succeed or fail on its own without being tied to the fate of counts 1-14 of the charge when as a fact it is the same element or ingredient that will sustain counts 2 to 14 that the Prosecution must prove except concealment in order for the court to convict the Appellant in any of the counts and therefore the court came to a wrong decision in count 15.

11. GROUND ELEVEN
The learned trial Judge having rightly found that count 15 only relates to the proceeds of N152 million and not the properties of Appellant including his cars tendered as exhibits at the trial, the court ought to have ordered the release of the cars and/or vehicles one of which was bought before the transaction leading to the charge and the court thereby came to a wrong decision.

12. GROUND TWELVE
The judgment of the trial court was unreasonable and unwarranted having regard to the entire evidence adduced at the trial.”

The learned counsel for the Appellant, Albert Akpomudje (SAN) in his 31 paged Brief of Argument distilled four issues for determination from the twelve grounds of appeal, which issues were adopted by Simon Lough Esq of learned counsel for the Respondent, also in his 31 paged Brief of Argument. They are:

ISSUES FOR DETERMINATION

1. WAS COUNT 15 OF THE CHARGE FOR WHICH APPELLANT WAS CONVICTED NOT DEPENDENT, ANCILIARY AND/OR CONSEQUENTIAL UPON THE SUCCESS OF COUNTS 2 TO 14 OF THE CHARGE TO WHICH THE TRIAL COURT ON A NO CASE SUBMISSION HELD THE PROSECUTION DID NOT PROVE. GROUNDS 1 AND 10.

2. DID THE PROSECUTION PROVE THE ESSENTIAL INGREDIENTS OF THE OFFENCE IN COUNT 15? GROUNDS 2, 3, 5, 6, 7 AND 12

3. DID THE TRIAL JUDGE PROPERLY EVALUATE THE EVIDENCE BEFORE THE COURT AND DID THE COURT GIVE THE BENEFIT OF DOUBT CREATED DURING THE TRIAL IN FAVOUR OF THE APPELLANT AS REQUIRED BY LAW? GROUNDS 4, 6, 7, 8, 9 AND 12.

4. WAS COUNT 15 IN THE CHARGE LIMITED TO ONLY THE SUM OF N152,000,000.00 (ONE HUNDRED AND FITY TWO MILLION NAIRA) IN THE ACCOUNT WITH THE BANK OR THE WHOLE TRANSACTION APPELLANT HAD WITH THE NOMINAL COMPLAINANT AS ALLEGED TO BE ABOUT N800,000,000.00 (EIGHT HUNDRED MILLION Naira)? GROUNDS 11 AND 12

The grounds of appeal in the main appeal are repetitive especially the particulars of the grounds of appeal which I refrain from quoting because they are quite lengthy. The issues formulated from therein, as rightly noted by both the counsel for the Appellant and Respondent are related and interwoven thus the arguments advanced in support of the issues are intertwined and repetitive. In the circumstances, I will take issues 1, 2 and 3 together, under the condensced canopy of the question to wit:
Whether the prosecution proved the essential ingredients of the offence in Count 15 to warrant the conviction and sentence of the appellant.
I adopt issue 4 as couched.

ISSUES 1, 2 AND 3
In the main, it is the strong contention of the appellant that Count 15 upon which the appellant was convicted was an ancillary and consequential charge, dependent on the outcome of counts 1 -14. He noted that counts 1 -14 of the charge alleged that the appellant with intent to defraud the nominal complainant, who testified as PW8, collected various sums of money from PW8 by threats and false pretences; while count 15 is alleged for the concealment of the money defrauded. The contention of the appellant is that the court, having discharged the appellant on grounds 1 – 14 on no case submission, there was no other evidence upon which the court convicted the appellant. Learned Senior Counsel argued that the essential ingredients of the offence in counts 1 -14 are principally those to be proved in count 15 in respect of money fraudulently obtained from PW8 apart from the issue of concealment. On failure of prosecution to prove essential elements of an offence, he relied on the following authorities:
a. OLABODE v STATE (2007) ALL FWLR (pt. 389) 1301 at 1323 para F -G
b. OMOAGA v STATE (2006) 14 NWLR (pt. 1000) 5322
c. ONAH v STATE (1985) 3 NWLR (pt. 12) 236
d. STATE v AIBONGBEE 1988 2 LRCN page 81

He submitted that in an attempt to find the appellant guilty of the offence in count 15, having discharged the appellant in counts 1-14 the learned trial Judge at page ………turned around and made a case for the prosecution by substituting the words “unlawful activity” in S. 7(1)(b)(i) of the Act with the explanation that these are the words used in the Act and not the word “fraudulent”. The phrase “unlawful activity”, he submitted is abstract as the prosecution is bound to supply the particulars of such unlawful activity which it failed to do at the trial; as count 15 is dependent on counts 2 -14.

On the assumption, but without conceding that count 15 is independent of counts 2 -14, learned senior counsel submitted that the prosecution also failed to prove one of the essential ingredients in count 15, which is the concealment, of the money allegedly fraudulently obtained. In this regard, the learned senior counsel vehemently attacked the evaluation of evidence by the learned trial judge on the ground that he failed to properly evaluate the evidence supplied by the defence and thereby made perverse findings against the appellant. Reference was made to pages 670 -671 of the record concerning the ruling on no case submission where the court had earlier held that moving an account from one branch of a bank to another is “motion without a movement” yet still found the appellant guilty on the same ground. It is his contention that the evaluation was one sided against the appellant as if the onus of proof lies on the appellant to prove his innocence. On this learned senior counsel referred to the evidence of Ambassador Sam Edem, PW8, where he stated that the payments were of the nature of gift or friendly loan while the appellant promised he would pay back, hence the appellant was discharged on no-case submission in counts 2 -14. According to learned senior counsel, in a twist of fate, the same learned trial Judge on improper evaluation of the evidence of the appellant (DW2) and his defence witness convicted the appellant on what he termed circumstantial evidence based mainly on the suspicion that the appellant changed his name while opening another account in a bid to conceal the money being transferred from the account in Warri to Ughelli whereas, the reasons for the change of name has been satisfactorily explained by DW1 and the appellant (DW2) Learned Counsel cited authorities on the principle of law that suspicion however strong cannot be a ground for conviction –

a.  OBIAKOR v STATE (2002) FWLR (pt. 113) at 313 para C-J
b. BABALOLA v STATE (1989) 4 NWLR (pt. 115) 264
c.  BOZIN v STATE (1985) 2 NWLR (pt. 8) 465
d.  ADETOLA v STATE (1982) 1 NWLR (pt. 235) 265
e.  AJOSE v STATE (2002) 7 NWLR (pt. 766) 302
f.  OMONGA v STATE (2006) ALL FWLR (pt.306) 930 at 955 para F-G ratio 15

Mr. Akpomudje is of the opinion that the learned trial Judge did not take advantage of seeing and hearing the witnesses before convicting the appellant. He therefore urged this court to exercise its powers pursuant to S.15 of the Court of Appeal Act to make appropriate findings in favour of the appellant; relying on STRABAG CONST (NIG) LTD v IBITOKUN (2010) ALL FWLR (pt. 535) 203 at 233; GBADAMOSI v DAIRO (2007) ALL FWLR (pt. 357) 812; OYEMIRAN v AJANI (2010) ALL FWLR (pt. 526) 523 at 531 paras D -E; 545 at para F.

On the whole, learned senior counsel urged the court to discharge and acquit the appellant.
On issues 1, 2 and 3, the learned counsel for the Respondent, Mr. Simon Lough, on his part, made frantic efforts to support the judgment of the lower court but in doing so basically and profusely merely produced portions of the learned trial Judge’s ruling on no case submission and judgment to state that the learned trial Judge was right in his decision. In justifying the decision of the lower court, learned counsel reproduced the Ruling of the court on No-case submission at pages 614 -623 and the final judgment of the court at pages 725 -726 and submitted that count 15 was not dependent on counts 1 -14, and that the ingredients of the offence in count 15 were indeed proved beyond reasonable doubt. It is his contention that the ingredients of an offence are derived from the provision of the law creating the offence and not from the content of the charge. He is therefore of the opinion that the learned trial Judge was right in relying on the provisions of S.7 of the Advance Fee Fraud and other Related Offences Act, 2006 when he used the word “unlawful activity” instead of the word “fraudulently” in deciding this case. Counsel, relying on the case of IGBALE v STATE (2006) 25 NSCOR 321 at 326 stated the principle of law that though the onus of proof beyond reasonable doubt is always on the prosecution and does not shift, however where the prosecution has discharged that burden, the onus is on the accused to disprove same, failure of which a verdict of guilt will be returned against him. He submitted that learned trial Judge properly evaluated the evidence of both the prosecution and the defence before arriving at his judgment and therefore it is not the duty of an appellate court to interfere with the findings of the trial Judge -GBOKO v STATE (2011) 6 NCC 312 at 349. Learned Counsel submitted in a cloudy manner, that the learned trial Judge in his pronouncement on no-case submission did not discharge the appellant of defrauding PW8 but that the manner in which the money was collected was not established by threat or inducement but by the statements of the appellant as exhibits PW 27A, PW 27B and 45 and his oral testimonies as DW2 and that of his witness DW1. He argued that when the testimonies of DW1 and appellant are juxtaposed with the evidence of the prosecution one cannot but return a verdict of guilt against the appellant especially regarding his evidence that he received various sums of money from PW8 for jobs done whereas there was no evidence of such jobs. The said jobs according to him bother on unlawful activity such as “to inflict Tim Alaibe with stroke, work on Governor Akpabio and the Vice President Jonathan now President and to return him back to NDDC as Chairman are all base (sic) on deceit and the proceeds derived from is surely the proceeds of unlawful activity or fraudulent action or conduct as defined by S.7(6)(h) of the Advance Fee Fraud Act.”
In general eulogy for the learned trial Judge, he submitted that the learned trial Judge was right to have convicted the appellant.
Issue 4, as formulated by the Appellant is –
WAS COUNT 15 OF THE CHARGE FOR WHICH APPELLANT WAS CONVICTED NOT DEPENDENT, ANCILIARYAND/OR CONSEQUENTIAL UPON THE SUCCESS OF COUNTS 2 TO 14 OF THE CHARGE TO WHICH THE TRIAL COURT ON A NO CASE SUBMISSION HELD THE PROSECUTION DID NOT PROVE GROUNDS 1 AND 10.
While arguing the issue further in paragraph 8.0 of brief of argument, learned counsel seemed to widen the horizon by captioning Issue Four as follows:-
“LEARNED TRIAL JUDGE WAS WRONG IN CONVICTING THE APPELLANT IN COUNT 15 BASED ON THE ENTIRE AMOUNT OF MONEY HE WAS ALLEGED TO HAVE DEFRAUDED THE NOMINAL COMPLAINANT AS CHARGED IN COUNTS 2 -14 AS AGAINST THE AMOUNT STATED IN THE CHARGE SAID TO BE N152 MILLION AS A RESULT REFUSED TO RELEASE APPELLANT’S PROPERTIES TENDERED AS PROCEEDS OF THE ALLEGED FRAUDULENT ACT.”

The new caption added the issue of the release of the appellant’s properties tendered at the trial which was not included in the issue initially couched. However, since issue 4 is distilled from grounds 11 and 12 of the Notice of Appeal, and ground 11 deals with the release of the goods tendered, it will be taken that the argument advanced is within the issue postulated. However, it is advisable that when an issue is formulated in an appeal the argument advanced thereunder should not exceed the substance of the issue as formulated.
On this issue, the learned counsel or the appellant complained that though the court knew that count 15 relates to concealment of N152 million Naira, it nonetheless convicted the appellant of concealment of the sum of money prosecution could not prove he defrauded the PW8 amounting to N715 million or N800 million contrary to the Charge in count No. 15.
This, he said, is in contradiction to his finding at pages 695 -696 of the Record where he had stated that the amount concealed is the sum of N151 (sic) million in which he executed a transfer of money from his Ughelli Branch of Oceanic Bank to Warri Branch. Learned counsel again referred to his submissions on Issue 1, that since the appellant was discharged of all allegations in counts 1 -14, the trial judge ought to have released Appellant’s properties tendered as exhibits as according to him count 15 for which the Appellant was convicted had nothing to do with Appellant’s said properties having been discharged in counts 2 -14.
Finally, learned senior counsel urged the court to allow the appeal, set aside the conviction and discharge and acquit the appellant and that all the properties of the Appellant’s seized including the money frozen in the bank be released to him.
On his part, Simon Lough of learned counsel to the respondent submitted that from the evidence before the court, it is clear that the unlawful activity which the appellant was engaged; which formed the charge in count 15 involved N715 million fraudulently collected from PW8 since it was part of the money that was transferred by the appellant from his Ughelli account to his Warri account using different name from the name he was known, that is, Tuwere Mathew Ejoor instead of Mathew Sonoma.
It is his submission that the conduct in his banking transactions whereby he, appellant who had an account with Ughelli Branch of the Oceanic Bank Plc went to Warri where he had no business to open an account with the same bank with different name and went to Benin and executed a letter of transfer of the sum of N152m from Ughelli account to Warri account showed that he intended concealing the money he fraudulently obtained from PW8. He further argued that it was when the appellant was being investigated and his Ughelli account frozen that he commenced the process of concealment of part of the money as shown by the evidence of PW1, PW2, PW3, PW4, PW8 and PW10 and Exhibit PW1A in his desperation to conceal the money he fraudulently collected from PW8. Finally he urged the court to resolve issue 4 in favour of the respondent and dismiss the appeal and uphold the judgment of the lower court.
Issues 1, 2, and 3 in brief deal with the question whether the learned trial Judge properly evaluated the evidence adduced before him to show that the prosecution proved beyond reasonable doubt the ingredients of offence in count 15 before he found him guilty and accordingly convicted and sentenced the appellant.
At the preface of this judgment, I had in a pr’E9cis stated the facts of this case. Permit me, even in the face of repetition to recapitulate same at this juncture for the purposes of comprehension of the analysis I wish to embark upon presently in this judgment.
The appellant was charged along with one now at large with a 15 count charge of offences under the Advance Fee Fraud and Other Related Offences Act, 2006. Count one was for criminal conspiracy of obtaining money under false pretence; while counts 1 -14 was for obtaining various sums of money on 13 different occasions from PW8, Ambassador Sam Edem, the nominal complainant with intent to defraud him.
At the close of the case for the prosecution, the appellant was discharged on no case submission as the prosecution failed to establish a prima facie case against the appellant. He was called upon to defend himself on count 15 which is an intent to conceal the money fraudulently collected from PW8 by the execution of a letter of transfer of N152 million to another branch of the Oceanic Bank PLC.
The major issue or crux in this appeal is whether count 15 is dependent on counts 2 -14. In other words whether the major ingredients of the offence to be proved in count 15 are essentially the elements to be proved in counts 1 -14. For ease of reference the 15 counts of the charge are produced hereunder –

Count 1: That you Matthew Sonoma (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi Delta State and Kakas AMGBARI ‘M’ now at large of the same address on or about November, 2007 did agree together to commit felony to wit: Obtaining money under false pretence. You thereby committed an offence contrary to Section 8 of the Advance Fee Fraud and other Related Offences Act, 2006.

Count 2: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 4/12/07 at Port Harcourt and with intent to defraud Ambassador Sam Edem (former Chairman of NDDC) induced him by threatening to kill him and members of his family and by that inducement you collected the sum of Sixty million Naira (N60m) from him which was paid into your Oceanic Bank Account Number 0231701700335 through G.T. Bank cheque Number: 01789169, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006.

Count 3: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 13/12/07 at Port Harcourt and with intent to defraud Ambassador Sam Edem (former Chairman of NDDC) induced him by threatening to kill him and members of his family and by that inducement, you collected the sum of Thirty-two Million Naira (N32m) from him which was paid into your Oceanic Bank Account Numbers: 0231701700335 through G.T.B. Bank cheque Number: 01789219, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

Count 4: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 10/1/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by threatening to use diabolical means to eliminate him and members of his family and by that inducement you collected the sum of Sixty Million Naira (N60m) from him in two installment of Thirty million Naira (N30m) each which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank cheque number: 03255734,you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

Count 5: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 16/1/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by sending threatening messages to him that you will, use fetish diabolical means to kill him and his family and by that Inducement, you collected the sum of Sixty Million Naira (N60m) from him which was paid into your Oceanic Bank Account Number 023170700335 through Akpan. You thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 6:That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 25/1/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (former Chairman of NDDC) induced him by threatening to kill him and members of his family and by that inducement, you collected the sum of Forty million Naira (N40m) from him which was paid into your Oceanic Bank Account Number: 0231701700335 through Zenith Bank Cheque, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 7: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 28/1/08 at Port Harcourt with intent to defraud Ambassador Sam Edem, (Former Chairman of NDDC) induced him by sending him threatening messages that you have been communicating with the spirit if he did not give you money you demand from him, you will kill him and by that inducement you collected the sum of Thirty million Naira (N30m) from him which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank cheque, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 8: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 1/2/08 at Port Harcourt, with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by threatening to kill him and all his family if he did not give you the money you demanded from him and by that inducement you collected the sum of Seventy-five Million Naira (N75m) from him which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank Cheque Number 10145579, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.
Count 9: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 11/3/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by threatening to kill him and members of his family and by that inducement, you collected the sum of Fifty-two million Naira (N52m) from him in two installments of Forty Million Naira (N40m) and Twelve million Naira (N12m) which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank cheque Number: 01842355 and Olu Obasan J., you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 10: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 14/3/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (former Chairman of NDDC) induced him by sending him dangerous threatening messages that if he did not give you money, you will kill him and by that inducement you collected the sum of Forty million Naira (N40m) from him which in two installment of Twenty-five Million Naira (N25m) and Fifteen Million Naira (N15m) respectively which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank Cheque Number: 01842415 and 08142468 respectively, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related offences Act, 2006.

Count 11: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘m’ 34 years, Native Doctor of Bomadi, Delta State on or about the 25/3/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (former Chairman of NDDC) induced him by threatening him that if he fail to give you the money you demanded from him, he will be killed and by that inducement, you collected the sum of One Hundred Million Naira (N100m) from him in two installments of Fifty Million Naira (N50m) each which was paid into your Oceanic Bank Account Number: 0231701700335 through G.T.B. Bank cheque Number 04978907, respectively, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 12: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 26/3/07 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by threatening to kill him if he fail to give you the money you demanded from him and by that inducement, you collected the sum of One Hundred Million Naira (N100m) from him in two installments of Fifty Million Naira (N50m) each, which was paid into your Oceanic Bank Account Number: 0231701700335 through Spring Bank Cheque Number: 00071939 and G.T.B. Bank Cheque Number 01842451 respectively, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 13: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 1/4/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by sending him dangerous threatening messages that you have used diabolical means on him and that you will kill him if he fail to give you the money you demanded from him, and by that inducement, you collected the sum of One Hundred Million Naira (N100m) from him which was paid into your Oceanic Bank Account Number: 0231701700335 through Spring Bank Cheque, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 14: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 3/4/08 at Port Harcourt and with intent to defraud Ambassador Sam Edem (Former Chairman of NDDC) induced him by sending him dangerous threatening messages that you have used diabolical means on him if he fail to give you the money you demanded from him, and by that inducement you collected the sum of One Hundred Million Naira (N100m) from him which was paid into your Oceanic Bank Account Number: 0231701700335 through Spring Bank Cheque, you thereby committed an offence contrary to Section 1(3) of the Advance Fee Fraud and other Related Offences Act 2006.

Count 15: That you Matthew Somona (Alias Dr. Perebakowe Ogah) ‘M’ 34 years, Native Doctor of Bomadi, Delta State on or about the 10/7/08 with intent to conceal the money you fraudulently collected from Ambassador Sam Edem (Former Chairman of NDDC) executed a transfer letter of the sum of One Hundred and fifty-two Million Naira (N152m) to be paid into your Oceanic Bank Account Number: 0071170200031 and the said money was transferred into the said Account. You thereby committed an offence contrary to Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act 2006.

As said earlier count 1 is on criminal conspiracy. Counts 2 -14 clearly relate to the alleged fraud committed by the Appellant when he, by inducement and threat, collected various sums of money from PW8 amounting to about N800 million Naira. To succeed in counts 2 -14, the prosecution must prove fraud beyond reasonable doubt. Now count 15 is a two thronged charge. Two essential elements of the offence must be proved in order to succeed in count 15.
There must be firstly, proof that the appellant fraudulently collected money from Ambassador Sam Edem (PW8) and then secondly, after obtaining the money fraudulently, in order to conceal the fraudulent acts, appellant decided to transfer N152 million of part of the money so fraudulently collected into another bank. This is to say that the money fraudulently collected has to be proved before the issue of concealment of the money comes into play. Count 15 is definitely dependent on counts 2-14. I am in full agreement with the learned senior counsel that count 15 is tied with grounds 2 -14. The particulars of fraud as charged in counts 2 -14 must of necessity be proved against the appellant before the prosecution can succeed in count 15. Count 15 is therefore completely predicated on the success of counts 2 -14.
The learned trial Judge in rejecting that count 15 is dependent on count 1 -14, but that same can be proved without reference to counts 1 -14 stated at pages 725 -726 of the Record of Appeal thus –
“The second broad issue which I described as ancillary is whether the mere fact that the 1st Accused person was discharged by the Ruling delivered on Counts 1 -14 in the Charge that it is virtually automatic that Count 15 too will fail. There is no law like that. If it were so, I will not bother myself directing the 1st Accused person to offer explanation or enter his defence on the said Count 15. I have done adequate analysis of this issue in the Ruling I delivered on 23/4/10 and this was the reason I reproduced about 10 of its concluding pages so that both parties will know what is on the ground as per the said Count 15. The excerpts of a judicial decision which the defence reproduced at page 12 of their written address will not apply to the facts of the instant case. The submissions of the defence Counsel on this issue cannot be supported by any judicial decision that has to deal with facts and circumstances such as I have in this case. The defence approached the trial of the 1st Accused person on Count 15 on the charge as if it was, a “walk over” of sort or an unnecessary burden which the Court will soon see that there was no need to call on the 1st Accused person to offer any explanation or enter into his defence since Counts 1 -14 have been held as not been proved to establish a prima facie case. The fallacy in this reasoning is easily exposed upon a proper reading of Count 15 which I dare say, can succeed on its own without regard to the fact that the 1st Accused person had been discharged on Counts 1 -14 in the Charge Sheet.
Count 15, in my view, can succeed or fail on its own without being tied to the fact of Counts 1 -14 in the charge because, the Legislature never inserted the word “fraudulently” in Section 7(1)(b)(i) of the Advance Fee Fraud Act, 2006 but used the words “unlawful activity”. It is in this regard, that I expressed the view, that by tying count 15 in the charge to counts 1 -14, the defence failed to read the said provisions properly and used it to x-ray or analyze the evidence of PW1, PW2 and PW3 as well as those of DW1 and the 1st Accused person as DW2.
In conclusion, my Judgment is that the Prosecution had by the evidence led and the documentary exhibits produced at the trial, proved the said Count 15 in the charge dated and filed on 17/9/08 against the 1st Accused beyond reasonable doubt. The 1st Accused person is hereby found guilty and he is convicted on the said Count 15 as charged.”
The emphasis here is on the reasoning that the prosecution had by evidence led proved count 15 against the appellant beyond reasonable doubt. The question is what evidence was led? The evidence led is that which the learned trial Judge had pronounced in his Ruling on No-case submission that the prosecution had failed to prove. Apart from the evidence produced at the No-case submission, no further evidence was led by the prosecution upon which the learned trial Judge convicted the appellant. As rightly submitted by the learned senior counsel, the conclusion of the trial judge in the judgment is a reversal of his former ruling.
As can be gleaned from the excerpt of the ruling quoted above the reason why count 15 is not dependent on counts 2 -14 is because the words “unlawful activity” ought to have been used by the prosecution in drafting count 15, in line with the wordings of S..7(1) (b)(i) of the Advance Fee Fraud Act, 2006 instead of the word “fraudulently” inserted by the prosecution in the charge. The learned trial Judge thus indirectly amended the charge without calling upon the accused/appellant to plead to the amended charge. One of the cardinal principles of our criminal jurisprudence is that where an accused person is charged with a criminal offence, he shall be informed promptly in the language he understands and in detail of the nature of the offence he is alleged to have committed, so also shall he be so informed and fresh plea taken when such a charge has been amended. Nothing should be left for speculation otherwise failure to comply strictly shall render the whole trial a nullity -OLABODE v STATE (2009) 11 NWLR (pt. 111152) 254 at 258; ADENIYI v STATE (2001) 25 WRN 117 at 120.
It is trite law that an accused person must be given every opportunity to know the case he is being accused from each of the count in the charge. The ingredients of the offence must be clear from the framing of the charge. I am not in tune with the submission of the learned counsel for the Respondent that the elements of a charge to be proved by the prosecution are those provided by the section under which the accused is charged; and not in the charge framed against the accused person. This in my view is a faulty argument. An accused person can only be charged for an offence created by law. In charging the accused, essential elements upon which he is charged must be captured in the charge. Each count which complains about the conduct of an accused person must be specific and precise. The particulars of the offence must state the specific criminal conduct upon which the accused is arraigned otherwise. In other words each count of the charge as framed must contain dispositions disclosing an offence against the accused person, otherwise an accused person can be discharged on such a defective charge. See OJO v F.R.N. (2008) 11 NWLR (pt. 1099) 467 at 513-514, EDET v STATE (2008) 14 NWLR (pt. 1106) 52 at 65-66, para H-A.
Section 7(2) (b) of the Advance Fee Fraud and other Related Offences Act, 2006, quoted in count 15 of the charge is actually the punishment section. The section for the offence is 7(1)(b)(i) which states –

7(1) “A person who conducts or attempt to conduct a financial transaction which in fact involved the proceeds of a specified unlawful activity: …

(b) Where the transaction, is designed in whole or in part

(i) to conceal or disguise the nature, the location, the source, the ownership or the control of the proceed of a specified unlawful activity …..” (Underlining for emphasis)

(i) any act or activity constituting an offence under this act;

(ii) with respect to a financial transaction occurring in whole or in part in Nigeria, an offence against the laws of a foreign nation involving obtaining property by whatever name called.”

(2) A person who by false pretence, and with the intent to defraud, induces any other person, in Nigeria or in any other country, to confer a benefit on him or on any other person by doing or permitting a thing to be done on the understanding that the benefit has been or will be paid for commits an offence under this Act.”
The wordings of the law are replete of indices of fraud. All these show that there is no escape route from tying count 15 to the issue of fraud. Without any equivocation whatsoever, it is clear that fraud is the most essential ingredient of the offence in the charge in count 15. The prosecution, being mindful of this necessary requirement of the law rightly inserted in Count 15, the phrase “with intent to conceal the money you fraudulently collected from Ambassador Sam Edem….” The issue of the money collected fraudulently from the nominal complainant must therefore be proved first before the element of concealing the said money. Irrespective of what the leaned trial Judge had earlier said in the ruling on No-case submission that count 15 can stand on its own, independent of counts 2 -14, I believe, he was not oblivious of the necessity of tying or connecting count 15 to the sums allegedly defrauded Ambassador Sam Edem ((PW8), the nominal complainant. This realization, I believe dawned on him while writing his judgment, hence he held at page 715 and pages 721 -723 of the Record of Appeal thus:
Page 715: “The spirited efforts of the Prosecution to sneak in an Amended Charge which was disallowed was a decision I took in order to vindicate the 1st Accused person’s right to a fair trial because, the said Amended Charge is nothing but an ingenious compression of the totality of counts 2 -14 in the charge which relate to incidents of different sums of money which the 1st Accused person had collected or obtained from one Ambassador Sam Edem. The said counts 2 -14 in the charge did not cross the evidential bar as to constitute a prima facie evidence on which the 1st Accused person can be asked to enter a defence.
It is not a Ruling by which I made any finding that the 1st Accused did not take or collect money from Ambassador Sam Edem. It was the purpose and method by which the said monies were collected that I was unable to reconcile with allegation of threats and or inducement when PW8 as the nominal complainant told the court, contrary to the statements he had made with the Police and amongst other things, that the various sums of money which he paid to the 1st Accused person were either loan or a friendly gift and those which are loans, the 1st Accused person had promised to pay back. Between both parties, i.e. the 1st Accused person as DW2 and the nominal complainant as PW8, there is no dispute that monies moved hands that were so moved hands and from the evidence led, it seems that it was over N700 million that were so moved beginning with the initial payment of N60 million paid to the 1st Accused person.”
Pages 721-723: “Whilst opening the said account, he used a different name and within 48 hours of the account which he opened with only N1,000.00 transferred a whopping N152 million into it from the Ughelli branch of the same Oceanic Bank where he was still known as “Mathew Sonoma”. All of these in my view, betray the legitimacy of the funds as proceeds of an “unlawful activity” in the con of Section 7(1)(b)(i) of the Advance Fee Fraud and Other Related Offences Act, 2006 under which Count 15 in the charge is framed.
As at when PW3 and DW1 gave evidence, all that was left in the account in Warri was about N15 million and by evidence of PW2, the Ughelli account has N1.7 million left in it. In all the accounts, out of about N715 million, by the time the 1st Accused was eventually charged to Court, the aggregate of funds left was barely up to N50 million. The 1st Accused had given evidence as DW2 that all the monies involved in this matter were paid to him by Ambassador Sam Edem (PW8) and that even with respect to payments made by corporate bodies named by Prosecution witnesses, were made on his instruction. It seems that the total sum involved is over N715 million. These are payments made for “services” he rendered to Ambassador Sam Edem and for “work done”. It is surprising that the 1st Accused person never produced any document to show the kind of “services” he rendered to PW8 or of any letter of instruction from PW8 to him for a contract of service(s) of about N800 million -because, he still says that the PW8 is still owing him over N200 million. Again, he never showed any evidence, even a photocopy or carbon copy of any Receipts he had issued to acknowledge receiving “fees” for the “services” he rendered or “work done” for PW8. These are strong circumstantial evidence which inevitably point to a probable conclusion that the alleged payments made to him by PW8 or which he obtained from PW8 for unspecified matters not legally provable by admissible evidence known to law, were proceeds of “unlawful activities”. It is the desperation he exhibited to liquidate the funds and to disguise its location or origin by the new Account he opened in Warri Branch of the same Oceanic Bank with a different name that betrayed as it were, the legitimacy of the funds as proceeds of “unlawful activities”. (Underlining for emphasis)
Even though the trial Judge avoided using the word “fraudulently” and employed such phrase as, “funds as proceeds of “unlawful activities”, the aggregate money so described as being illegitimately obtained sum up to N715 million as charged in counts 2 -14. The trial Judge, in a complete turnaround, ascribed the money collected from PW8 as “jobs not “done” as testified by PW8 himself, the nominal complainant. Even then, the said jobs cannot be said to be unlawful activity unless it is shown what section of the Advance Fee Fraud that makes such non-performance of the contracts unlawful. The truth of the matter is that the funds complained about are the same in counts 2 -14 which I must repetitively emphasize, are the counts the learned trial judge in his Ruling on No case submission had held that the prosecution failed to prove fraud and therefore discharged the appellant. Again, permit me to quote in extenso the relevant portions of the Ruling on No-case submission at pages 605-606, the pages 610 -614 of the Record of Appeal rightly done by Appellant Counsel in his Brief of Argument –
“But of significance again, is the testimony of the PW8 that the monies paid to the 1stc Accused person was a loan and that the 1st Accused promised to pay back everything including the money he (the 1st Accused) took by threats from him. In his own words under examination in chief, PW8 told the court that: “Most of the payments were made and he made a promise to refund all the monies which at the beginning came by way of loans to the Accused person.” The PW8 went further to say: The 1st Accused did not promise to refund the monies he took from me by the threats in messages and telephone calls. These were taken under duress”
But when PW8 was pressed further by the Learned Prosecutor, he retorted on the issue of loan thus: “I now say that the 1st Accused person promised to refund back every money he took from me whether as loans or under threat.” There was no single documentary evidence produced to authenticate the issue of the alleged loans. I asked, a loan taken by threat? It sounds rather incredible when it was made to a “victim” of the caliber ad status of “PW8”!
The said PW11 whilst under cross-examination told the Count that: “I am a staff of Centriol Global Investment Ltd. I am aware as a matter of fact that Ambassador Sam Edem is neither a Director nor shareholder of Centriol Global Investment Ltd”. PW12 on his part, whilst being re-examined by the Prosecutor also testified that: The monies we gave to Mr. Matthew Sonoma were loans which Mr. Matthew Sonoma had requested for”. The PW12 is a staff of Richard Boman (Nig) Ltd. -one of the four companies who paid monies into 1st Accused person’s account. PW10 being the Investigating Police Officer (I.P.O) in Zone 5 Police Headquarters, Benin who interrogated the 1st Accused person when he was arrested on 11/6/08 told the Court under cross-examination that: It is true that Ambassador Sam Edem himself did not pay a kobo to the 1st Accused person.” In the final analysis, PW8 whilst being cross-examined by the defence, testified thus: “In the statement I made to the police in Exhibit DW4, I did not mention any of these four (4) companies to the police.”PW8 proceeded further on these four companies to tell the Court that: “I am not a shareholder in any of the four (4) companies I have mentioned. I am not a Director in any of the companies.” The question is: Where does all these lead to? My answer with regard to Counts 2 -14 is that the prosecution has either not led credible evidence as to establish a prima facie case of these offences or that the evidence led, has been so manifestly discredited by the defence that no reasonable Court or Tribunal will act on it as to require the 1st Accused person to offer any explanation or to enter his defence. Although, I had earlier adverted to the Supreme Court’s words of wisdom that a Ruling in a “no case submission” should not be lengthy. Whilst I endeavoured to adhere to that, I must assure both Learned Counsel, that I had consciously refrain from making any finding or pronouncement that would appear prejudicial to the outcome of the trial in the event that the submission of the defence on the “no case submission” fails. But, I have advisedly, perhaps deliberately being somewhat detailed in reproducing parts of the evidence led because of the public interest which this case generated when it was filed. It is my view, that the Court has a duty, in its determination of cases of this nature, to ensure that its decisions are seen even by 3rd parties, and in particular, the general public, to be just. The hope and confidence of the average Nigerian in the capacity and ability of the court to do a clean justice must be enhanced. In the light of all that I have said, my view is that having regard to the evidence led, the prosecution has not made out a prima facie case on which the 1st Accused person and or ought to be called upon to offer an explanation let alone, enter into his defence on Counts 2 -14 in the charge.
When Count 1 is read closely with these Counts 2 -14, the inescapable conclusion anyone who is fairly knowledgeable in criminal law will arrive at is that count 1 stands as it were, incongruous with counts 2 -14. The said count 1 is an allegation of conspiracy between the Accused person “to commit felony to wit: obtaining money under false pretence”. The pitch and substance of the offences alleged in Counts 2 -14 can hardly qualify in my view as such. Each of the said counts 2 -14 are couched that the PW8 as the nominal complainant was being “induced” and being “threatened”. Except criminal jurisprudence is to be re-written, having regard to the evidence led by the prosecution and such evidence as were extracted under cross-examination, I doubt if count 1 can be married with the offences alleged in counts 2 -14 of the Charge sheet. In conclusion, there is no credible evidence led by the prosecution to make out a prima facie case upon which the 1st Accused person can be called to offer explanation and to enter into his defence on Counts 2 -14. The other side of this coin is that the evidence led by the prosecution has been so manifestly discredited that the Court ought not to call the 1st Accused person to offer an explanation on counts 1 -14 in the Charge sheet or to enter his defence. The totality of the evidence led on these counts are so conflicting and without regard even to the credibility of the witnesses, unreliable. The 1st Accused person is hereby discharged on counts 1 -14 of the charge.”
I am in full agreement with Mr. Akpomudje that the final judgment of the learned trial Judge is a complete contradiction of his earlier Ruling.
Now, what is the implication of the success of a Ruling on No case submission? In criminal trial, a successful submission of no-case to answer means no prima facie case has been made against an accused person because the prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in any way with the commission of the offence with which he had been charged. TONGO v C.O.P. (2007) 12 NWLR (pt 1049) 525, AITUMA v STATE (2007) 5 NWLR (pt. 1028) 466
In the instant case, the learned trial Judge, having discharged the appellant on counts 2 -14 the effect is that the prosecution failed to prove the element of fraud, which is the ingredient of the offence in counts 2 -14. As already analysed above, fraud is the basic ingredient of the offence in count 15. I have already held that count 15 is not severable from counts 2 -14. The concomitant effect is that the prosecution has failed to prove the major ingredient of the offence in count 15. Since count 15 is predicated on the element of fraud, upon which the other ingredient of concealment revolves, if fraud fails, then count 15 cannot stand. It automatically crumbles like a pack of cards; as it has no legs upon which to stand.
The burden of proving the charge preferred against an accused person is on the prosecution; and it never shifts. In discharging this burden the prosecution must prove all the ingredients of the offence, as contained in the charge. ALOR v THE STATE (1997) 4 NWLR (pt 501) page 511 at 516-517. In ONYIA v STATE (2006) 11 NWLR (pt. 991) 267 at 293 -294, it was held as follows –
“It is trite that before it can be said that the prosecution has proved its case beyond reasonable doubt, every ingredient of the offence charged must be established. If one ingredient is left unestablished then there is no proof beyond reasonable doubt.”
It is paramount that where any elements or ingredients of an offence is not proved beyond reasonable doubt, the prosecution’s case must fail. In the case at hand the prosecution having failed to establish fraud in the offence alleged in count 15 that count also ought to fail. -OLABODE v THE STATE (2007) ALL FWLR (pt 389) 1301 at 1323 para f -g.
It is important to note that from the case as charged, collecting money from Ambassador Edem constitutes the basic ingredient or element of the offence in the whole charge as it pervades all through counts 1 -14. Once the appellant has been discharged on counts 1 -14 on failure to prove the essential element of fraud, then automatically the appellant ought to have been discharged of all the counts on the charge sheet as count 15. The learned trial Judge in his reasoning stated that there is no rule of law that states that the fact that the appellant was discharged on counts 1 -14, automatically count 15 will fail. He stated –
“There is no law like that. If it were so, I will not bother myself directing the 1st accused person to offer explanation or enter his defence on the said count 15.” (Page 725 of the Record of Appeal)
I daresay, that this is where the learned trial Judge missed it. If he had properly analysed the counts of the charge and realized that count 15 is not severable from counts 1 -14, because of the element of fraud that ties all the counts together, then he could have realized that the appellant also ought to have been discharged on count 15.
It is my view that where an accused person has been discharged pursuant to a successful ruling on no-case submission of the substantive or main offence, the court cannot proceed to convict him on the ancillary offence. This is because the ancillary offence must necessarily be tied to the principal offence for it to stand as they share common ingredients of the offence charged. For instance if an accused person has been discharged of a principal offence at the stage of no-case submission, he cannot eventually be found guilty on the count of conspiracy in respect of the same offence. -IKEM v STATE (1985) 1 NWLR (pt. 2) 378 at 388; ABIOYE v STATE (1987). When an accused person has been discharged at that stage, of stolen goods, for example, the accused charged for receiving the same goods cannot be found guilty of receiving the same goods upon which the accused person has been discharged. Thus, after a discharge on counts 1-14 which required the proof of fraud as in count 15, there is no extant offence for the defence to answer. In the case of ADEYEMI v THE STATE (1991) 6 NWLR (pt. 195) 1 (SC) 28 -29, 38, the appellant was charged with an offence of murder. At the close of the case for prosecution, the accused person was discharged on a successful ruling of no-case submission. However, he was convicted on the lesser offence of manslaughter. The Supreme Court held that once there is a discharge, after evidence, on the charge of murder; which is the full offence, there is nothing left to be severed upon which the accused can be convicted.
My finding in recapitulation is that the learned trial Judge erred in law and in facts in evaluation of evidence and came to a wrong conclusion in convicting the appellant on Count 15 as charged when from the provisions of the Advance Fee Fraud Act 2006, and ipso facto the charge, as drafted, and the facts in support of the case, Count 15 was definitely a consequential charge dependent on the success of Counts 1 -14 which the lower court upon a no-case submission discharged the appellant because the prosecution failed to prove the said charges. It is trite law that in criminal trials, the evidential burden of proof is on the prosecution; to prove its case beyond reasonable doubt -ESANGBEDO v STATE (1989) 4 NWLR (pt. 113) 57, AIGBADION v STATE (2000) 4 sc (pt. 1) 1 at 15. In the instant case, the prosecution failed to prove the guilt of the appellant in count 15 of the charge. This finding covers counts 1, 2 and 3 of the issues formulated in this appeal. I therefore resolve issues 1, 2, and 3 in favour of the appellant against the respondent.
Issue 4 is whether count 15 in the charge is limited to only the sum of N152,000,000.00 which was transferred into the account which the appellant opened in the same Oceanic Bank PLC but at Warri Branch with a different name, or it involves the whole amount of about N800,000,000.00 covered by the transaction the appellant had with the nominal complainant. In my view, the consideration of this issue will be tantamount to an academic exercise. Having held that the prosecution failed to prove that the appellant defrauded PW8 it is immaterial whether the amount the appellant was alleged he intended to conceal is limited to sum of N152 million upon which he actually executed a transfer into the Warri Branch of Oceanic Bank Plc, or it covers the whole money involved in the transaction. Besides the consideration of this issue is practically based on the argument that the learned trial judge ought to have released Appellant’s properties tendered as exhibits. Learned senior counsel’s argument on this issue is that the properties were tendered in respect of counts 1 -14 upon which the appellant was discharged. With regard to the balance of what was left of the N152 million in Warri Branch; he also urged the court to release same to the appellant since the prosecution could not prove that the appellant defrauded any person including the nominal complainant, or by the discharge of the appellant in counts 2 -14.
The argument of the respondent is that the total conduct of the appellant in opening another account with a different name clearly shows that he was desperate to conceal the identity and ownership and source of the total amount he “swindled” the appellant from Ambassador Sam Edem.
However, what is important here, is that, a calm consideration of count 15 as couched shows that count 15 involves the total money in the transaction. The count reads “…with intent to conceal the money you fraudulently collected from Ambassador Sam Edem”
I do not therefore agree with the learned Silk that the amount in count 15 is limited to only N152 million, being the amount the appellant actually transferred to the Warri account. Issue No 4 is therefore resolved against the appellant. It is however pertinent to remark that this finding has no effect on the appeal since I have held that the prosecution has also failed to prove the offence in count 15 against the appellant beyond reasonable doubt. In the circumstance, all the vehicles tendered as exhibits, including the money in the account of the appellant which has been frozen since the trial cannot be liable for forfeiture since the appellant has not been found guilty of any offence.
In the summary, this appeal is meritorious and thereby succeeds. The judgment of Honourable Justice G.O. Kolawole, of the Federal High Court, Abuja, delivered on 14th May 2012 is hereby set aside. The appellant is hereby discharged and acquitted on count 15. The vehicles tendered as exhibits, including the money in the account of the appellant frozen are hereby ordered forewith to be released to the appellant.

CROSS-APPEAL
The Notice of Cross Appeal containing two grounds of appeal are contained in the Supplementary Record of Appeal transmitted to this Honourable Court on the 23rd of October 2012. Arising from these grounds of appeal, the Respondent/Cross Appellant formulated two issues for determination, namely –
“1. Whether the learned trial judge was right in refusing to order confiscation, forfeiture and restitution on the ground     that the prosecution did not put appropriate evidence before him regarding the exhibits. Ground 1.
2. Whether the learned trial Judge was right when he failed to exercise the powers conferred on him by section 263, of the CPA and section 11(1) of the Advance Fee Fraud and Other Related Offence Act 2006 in ordering confiscation and forfeiture in favour of the Government of the Federation. Ground 2.”
The Appellant/Cross Respondent on his part formulated the following two issues for determination –
“i. whether from the peculiar  facts of the count 15 of the charge the trial judge can make an order for restitution when the same court has held that prosecution did not prove counts 1 to 14 relating to unlawfully defrauding the nominal complainant PW8 of various sums of money amounting to about N800,000,000.00  (eight hundred million naira)
ii. whether the Honourable trial  court can make an order of restitution in respect of any property of the appellant not proved to have been bought with the proceeds of the alleged fraud and not covered by count 15 for which he was convicted.”
Having regard to the grounds of appeal of the cross-appeal and the facts of this case, the issues couched by the Respondent/Cross Appellant are more appropriate. I adopt them as the issues in the cross-appeal.
At this juncture, it is pertinent to point out that the cross-appeal is not against the discharge of the appellant on counts 1 -14, rather, it is in respect of the refusal of the learned trial Judge to order confiscation, forfeiture and restitution after he had found the appellant guilty of the offence in count 15. In my view, if the appeal against the conviction of the appellant in count 15, succeeds, as it has in this appeal, then the cross-appeal is of no consequence. The success of the main appeal means that the prosecution has failed to prove all the counts of the charge. In the circumstance, all the properties otherwise tendered before the court must of necessity be released to the appellant. It will therefore amount to a waste of time to consider the issues raised in this cross-appeal. I therefore hold that the cross-appeal fails in its entirety and it is hereby dismissed.
No order as to costs.

ABUBAKAR DATTI YAHAYA, J.C.A.: I have had the opportunity of reading in advance, the judgment of my learned brother Akomolafe-Wilson JCA, and I am in complete agreement with the reasoning and conclusions reached therein. I also allow the appeal and set aside the judgment of the lower court delivered on the 14/5/12. I discharge and acquit the appellant of count 15. I abide by the consequential orders made therein.
The cross-appeal has no merit and it fails. It is dismissed.

REGINA OBIAGELI NWODO, J.C.A.: I had the privilege to read in advance the judgment of my learned brother T. Akomolafe-Wilson JCA, just delivered and I agree with his lordships’ reasoning and conclusion that there is merit in this appeal and that the cross appeal is devoid of merit. I also allow the main appeal and dismiss the cross appeal.
I abide by the orders made therein.

Appearances

Albert Akpomudje (SAN) with N. Ifene, O. Esq and M. IgwurubeFor Appellant

AND

Lough Simon, with Adieze Rowland for Respondent/Cross AppellantFor Respondent