CHUKWUEMEKA AGUBA v. FEDERAL REPUBLIC OF NIGERIA (2014)

CHUKWUEMEKA AGUBA v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7311(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/B/350C/2013

RATIO

APPEAL: GROUNDS OF APPEAL; WHETHER GROUNDS OF APPEAL MUST ARISE FROM THE RATIO DECIDENDI OF THE DECISION OF THE LOWER COURT APPEALED AGAINST AND WHETHER THE COURT MAY REFORMULATE THE ISSUES RAISED BY THE PARTIES IN THE INTEREST OF CLARITY
It is a well settled doctrine, that grounds of appeal must arise from the ratio decidendi of the decision of the lower court appealed against. Afortiori, the issues canvassed in a brief of argument must be distilled from valid grounds of appeal. In essence, argument is normally canvassed on the issues raised in a brief of argument. As such grounds of appeal are not argued in a brief. Where no issue for determination is formulated from a ground of appeal, the ground is deemed abandoned, thus liable to be discountenanced. See ACMEL (NIG) LTD VS. FBN PLC (2014) 6 NWLR (Pt. 1402) 158 @ 179 paragraph. It is equally a trite doctrine, that where the court deems it expedient it may reformulate the issues raised by the parties in the interest of clarity, precision and brevity. See UNITY BANK PLC VS. BOUERI (2008) 2 SCM 193; EMEKA NWANA VS, FCDA (2004) 7 SCM 25; (2004 13 NWLR (Pt. 889) 128; AGBAKOBA VS. INEC (2008) 18 NWLR (Pt. 1019) 489; BAKARE VS. AJOSE-ADEOGUN (2014) 6 NWLR (Pt.1403) 320 @ 349 paragraphs F – G. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; THE MEANING OF CONSPIRACY, WHEN IS THE OFFENCE OF CONSPIRACY COMPLETELY CONSUMMATED AND HOW CONSPIRACY IS PROVED

Invariably, the term conspiracy denotes an agreement by two or more persons to commit an unlawful act, or a lawful act by an unlawful means, coupled with an intent to achieve the agreement’s objective. Conspiracy in itself constitutes a distinct offense from the predicate crime that is the object of the conspiracy. In essence, therefore, conspiracy ends when the unlawful act has been committed or the [mutual] agreement has been discarded (abandoned). A conspiracy does not come to an abrupt or automatic end merely because its object is defeated. See BLACKS LAW DICTIONARY, 9th Edition, 2009 @ 351 to 352. According to P.H. Winfield – When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers, they commit the tort of conspiracy. See A TEXTBOOK ON THE LAW OF TORT 5th Edition 1950 @ 434; BLACK’S LAW DICTIONARY (Supra).
In the case of KRULEWICH VS. UNITED STATES, the US Supreme Court was recorded to have aptly held, inter alia, thus: [Conspiracy is an] elastic, sprawling and pervasive offense… so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always predominantly mental in composition because it consists primarily of a meeting of mind and an intent. See (1949) 336 US 440, 445 – 448; 69 SC 716, 719 – 920 per Jackson, J(SC). The offence of conspiracy is completely consummated (committed) the very moment two or more persons have agreed to do, either immediately or at some future time, certain things. It’s not at all necessary that any one thing should be done beyond the agreement mutually reached upon. Thus, at that crucial stage, even if the conspirators developed a cold-feet (out of sheer cowardice), repented and stopped, due to lack of opportunity to carry out their mutual agreement et al, the offence is deemed a fait accompli. See MAJEKODUNMI VS. QUEEN (1952) 14 WACA 64; ERIM VS. STATE (1994) 5 NWLR (Pt.346) 522 @ 534 paragraphs A – B.
In the case of ERIM VS. STATE (Supra), it was held by the Supreme Court thus:
In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other but take would be acts on both sides which would lead the jury or the Judge sitting alone to the inference. Per Ogwuegbu, JSC @ 335 paragraphs C – D. See also R. VS. MEYRIC & ANOR. 21 CAR 94; QUEEN VS. ESEGE (1962) 1 SCNLR 189; (1962) 1 ANLR 110; OYERIDAN VS REPUBLIC (1967) NMLR 122; HARUNA VS. STATE (1972) ANLR 738 (Reprint); (1972) 8 – 9 SC 172. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CRIMINAL LAW: THE OFFENCE OF OBTAINING MONEY BY FALSE PRETENCE; THE MEANING OF FALSE PRETENCE
The term false pretences denotes the offence (crime) of knowingly obtaining title to another person’s property by misrepresenting a fact with the intent to defraud that person. Also termed obtaining property by false pretenses; fraudulent pretenses; larceny by trick; embezzlement, et al. See BLACK’S LAW (Supra) @ 678.
The crime of obtaining money by false pretenses (pretence) has been aptly defined under the Advanced Fee Fraud and Fraud Related Offences Act, (Supra) thus:
20. In this Act – “false pretence” means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.
By virtue of Section 418 of the Criminal Code Act CAP. C38 Laws of the Federation of Nigeria, 2006,the term false pretence has been defined thus:
Any representation by words, writing, or conduct of a matter of fact either past or present, which representation is false infact and which the person making it knows to be false or does not believe to be true is false pretence. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

CRIMINAL LAW: THE CHARGE OF OBTAINING MONEY BY FALSE PRETENCE; INGREDIENT OF THE OFFENCE OF OBTAINING MONEY BY FALSE PRETENCE

Indeed, the law is settled, that the fundamental ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows:
(a) that there was a pretence;
(b) that the pretence emanated from the accused person;
(c) that the pretence was false;
(d) that the accused person knew of the falsity of the pretence, did not believe its truth;
(e) that there was an intention to defraud;
(f) that the property or thing is capable of being stolen;
(g) that the accused person induced the owner to transfer his whole interest in the property. See ONWUDIWE VS. FRN (2006) All FWLR (Pt.319) 774 @ 812 to 813 paragraphs G – F, per Niki Tobi, JSC. See also ODIAWA VS FRN (2008) All FWLR (Pt. 439) 436.. per. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

JUSTICES:

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

CHUKWUEMEKA AGUBA – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: (Delivering the Leading Judgment): The present appeal is a consequence of the Judgment of the Federal High Court, holden at Benin City, Edo State delivered on June 13, 2013. By the said Judgment, the lower court, Coram Adamu Hobon, J convicted the Appellant upon two count-charge of obtaining money by false pretence, contrary to Sections 8(a) and 9(1)(a) and punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. The Appellant was accordingly sentenced to ten years imprisonment, without an option of fine in respect of both counts. The two terms of imprisonment were, however, ordered to run concurrently.
Dissatisfied with the said Judgment, the Appellant filed the notice of appeal thereof in the court below on 26/6/13.

BACKGROUND FACTS:
It’s evident from the record of appeal, that on 07/12/11, the Appellant was arraigned before the lower court upon a two count-charge, viz:

CHARGE
That you AGUBA CHUKWUEMEKA ‘m’ on or about the month of November, 2009 at Benin City within the jurisdiction of this Honourable Court did conspire with one Kings Agho, Tunde Oisomoje and Ayo Akinbode now at large to commit felony to wit: obtaining money by false pretence from one Emmanuel Agbongiague and thereby committed an offence contrary to Section 8(a) and punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006.

COUNT 2
That you AGUBA CHUKWUEMEKA ‘m’ between the month of November, 2009 and August, 2010 at Benin City within the jurisdiction of this Honourable court with intent to defraud did obtain the sum of seven million five hundred thousand Naira (N7,500,000.00) only from one Emmanuel Agbongiague under the false pretence that the said sum of money would be used for the purchase of a property to wit: a house of five bedrooms, five toilets and a car park situate and lying at No. 7 Ahonore close, Uselu Benin City, in favour of the said Emmanuel Agbongiague, facts which you knew to be false and thereby committed an offence contrary to Section 1(1)(a) and punishable under section 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

Upon the arraignment thereof before the lower court on the said 07/12/11, the two count charge was read and explained to the Appellant, to which he pleaded not guilty. Eventually, the case proceeded to trial. Three witnesses, in the persons of Emmanuel Agbongiague (PW1), Alimi Kamil (PW2), and Aminu Ismaila (PW3) respectively, testified for the prosecution.
At the close of the case of the prosecution on 26/4/12, the Appellant raised a no-case submission. The learned counsel to the respective parties addressed the lower court on the no-case submission on 26/02/13. Consequent upon which, the lower court delivered a ruling thereby dismissing the no-case submission on 28/02/13. Thus, resulting in the Appellant proceeding with the defence thereof. Both Mrs. Esther Agho and the Appellant testified for the defence as DW1 and DW2. On 15/5/13, the learned counsel finally addressed the court, thus resulting in reserving the vexed Judgment for delivery. On the said 13/6/13, the lower court delivered the vexed Judgment, to the conclusive effect, thus:
The totality of the whole case leads to only one conclusion and that is the prosecution has proved the case on each of the two counts against the accused person beyond reasonable doubt and accused person failed to rebut.
Consequently, I accept the prosecution evidence and hereby find the Accused person guilty on each of the two counts and convicted him thereof as charged. See page 122 of the Record of Appeal.

Having therefore convicted the Appellant upon both counts of the charge, the lower court proceeded to sentence the Appellant, thus:
I have carefully considered the plea for mitigation of sentence for the convict, along with the fact that he is a first offender and a family man aged 51 years as at the time of arrest in 2011.
Also considered along is the law creating the offences Sections; Section 1(1)(a) and Sections 1(3) of the Advance Fee Fraud and other Related offences Act, 2006. Prescribing the mandatory minimum years imprisonment without the option of fine.
I have also considered whether the prescribed punishments are severe and excessive for the offences along with the settled position of the law that sentence in accordance with provisions of the law cannot be said to be severe and excessive. It is the legislative provision of the law that shall apply.
Upon the totality of the case before this court the convict certainly deserves severe punishment be imposed on him to serve as deterrent to him and the like minded persons in the society.
Consequently, I sentence AGUBA CHUKWUEMEKA
1. On count (1):
To ten (10) years imprisonment without option of fine.
2. On count two (2)
To ten (10) years imprisonment without option of fine. A total of twenty (20) years imprisonment without option of fine by operation of law.
However, the prison terms shall run concurrently on each of the two counts, having considered that the convict is a first offender and a family man with children and fairly of advanced age who may turn on a new leaf.
3. In addition the convict is ordered to pay to the victim the sum he received fraudulently form the victim, seven million, and five hundred thousand (N7.5 million), Naira LESS the sum he has already paid to the victim as evidenced on Exhibits “J1 – 4” BANK Deposits Slips.
The original notice of appeal filed on 26/6/13, is predicated upon seven grounds of appeal. The record of appeal was transmitted to this court on 21/8/13. The Appellant’s brief of argument was filed on 03/10/13. The Respondent’s brief was filed on 20/01/14. The Appellant’s reply brief was initially filed on 14/02/14, but deemed properly filed on 06/5/14.
The Appellant’s brief spans a total of eleven pages. At page 1 of the said brief, a sole issue has been raised for determination, viz:
“Whether the trial court was right to enter Judgment for the prosecution (respondent) in this case vis-a-vis, the defense of the accused?”

Curiously, the Appellant’s argument is predicated upon each of the seven grounds of appeal. Regarding ground 1 of the notice of appeal, the evidence of DW1, Mrs. Esther Agho, was extensively alluded to. It was, inter alia, submitted that the DW1 had stated that she was fully aware that the complainant through the Appellant and her son’s agent (Ayo) paid the sum of N3.8 million to the property owner (Mr. Kings Agho) which was yet to be refunded, till date. That, the DW1 has maintained that at the payment of this sum, she (DW1) handed over the photocopies of part of Exhibit F to the Appellant and the property owner’s Agent (Ayo) for onward transmission to the complainant through Barrister Ukah-Soanyah Jones & Co.
It was thus submitted, that when monies are paid and received, it negates any criminal intention. That, the Appellant also testified that it was collectively agreed by him, the complainant, and the Agent that out of the total sum of N7.5 million, the Agent be paid 5% commission (N350,000.00) and the lawyer who drafted the contract of sale be paid N150,000.00, which said monies the Appellant had duly and rightly paid. That these various sums paid by the Appellant was admitted by the PW3 and in the prosecution address on no-case submission at page 2, lines 5 – 9. Thus, argued, facts admitted need no further proof by oral or documentary evidence. See OLAGUNJI VS. OYENIRAN (1996) 6 NWLR (Pt.453) 127 SC; AKPAN VS. UMOH (1999) 11 NWLR (Pt. 627) 349 SC; AGBANELO VS. BN LTD (2000) 4 SC (Pt. 1) 233.
It was contended, such admission no longer places any burden on the Appellant to call the persons who received the said sums, as erroneously held by the lower court. Allegedly, two possibilities can be drawn from the evidence of DW1 and the admission of the prosecution; (a) That there was a property to be bought and sold, contrary to the views and position of the Respondent that there was none. Where there are material contradictions in the evidence or case of a party, the trial court must make a finding in relation thereto. That failure to do so vitiates a conviction. See BETT VS, THE STATE (1997) 1 NWLR (Pt. 484) 632 @ 661 SC; and (b) That DW1 was at the centre of the transaction between Mr. Kings Agho (property owner) and the complainant represented by the Appellant and Agent (Ayo Akinbode). It was submitted, that with the existence of a property to be bought and sold, the charge of conspiracy and advance fee fraud cannot be sustained under Section 1(1)(a) & 1(3) (Supra).
Second, regarding ground 2, it was submitted that the Appellant led evidence showing that out of the N7.5million paid by the complainant for the procurement of the said property, he paid N3.8million to Mr. Kings Agho (property owner) through his Agent, Mr. Ayo Akinbode. Exhibits 1 and 2 were receipts evidencing those payments. That the evidence of the Appellant was firmly corroborated by DW1 and PW3. See page 47 of the Record.
It was reiterated, that this clear admission by the prosecution no longer places any burden on the Appellant to call these persons mentioned, as facts admitted need no further proof. See OLAGUNJI VS. OYENIRAN (Supra), et al.
That, with the payment of the said sums by the Appellant and the refund of N1.75million to the complainant, which was admitted by the complainant (at page 27 lines 16 – 18 Record), the charge cannot be sustained. The evidence of the prosecution is manifestly at variance with the charge, thus the Appellant ought to be discharged. See JOHN AGBO VS, THE STATE (2006) FWLR (Pt. 309) 1350 @ 1386.
Third, ground 3, regarding whether or not the evidence of DW1 qualifies as hearsay evidence, as defined by Section 37 Evidence Act, 2011. It was submitted that with the direct and personal involvement of DW1 (in the transaction), her evidence cannot be referred to as hearsay, as erroneously held by the lower court.
The case of DICKSON VS. THE STATE (2003) All FWLR (Pt. 141) 1969 @ 1976 was cited as regards the meaning of a tainted witness as one “who has an interest to defend or a purpose to serve in a case in which he’s called to give evidence”. Allegedly, against the background of the evidence of DW1, it can safely be concluded that she is a witness of truth as she was only explaining (narrating) to the court the roles she played in the cause of the transaction. See DICKSON MOSES VS. THE STATE (Supra). The court is urged to so hold.
Fourth, regarding the fourth ground, it was submitted that the evidence of DW1 was misconstrued to mean that the transaction started in 2007. The DW1’s response (under cross-examination), that she “first heard of the transaction in 2007” (page 27, line 26, Record) was misconceived and wrongly interpreted by the lower court.
Fifth, regarding the fifth ground, the submission of the Appellant’s counsel (at pages 47, 87 and 110 of the Record) was referred to in respect of the admission made by the prosecution, which said admission was ignored by the lower court. It was reiterated, that if the said admission by the prosecution was considered by the lower court vis-a-vis the evidence of DW1 & DW2, there would have been no need for the court to insist on Appellant to call his co-conspirators, as stated in page 121 of the Record.
Six, on the sixth ground, it was submitted that Exhibit D (cheque) issued by the Appellant was meant to evidence and or document the transaction between the parties, and placed heavy reliance on BOLANLE ABIKE VS. THE STATE (2007) All FWLR (Pt. 366) 644 @ 647, which was ignored by the lower court at page 120 of the Record.
Seven, regarding the seventh ground, it was submitted, inter alia, that whether or not the purpose for which the total sum of N7.5million was released to the Appellant was achieved, is secondary. The primary issue is that part of that money was used for the purpose intended, which completely negates criminal intention.
It was further contended by the learned counsel, that this scenario creates a contractual obligation between the property owner and the complainant which remedies available thereto is compensation or damages, contrary to the findings of the lower court.
Conclusively, the court is urged to discharge and acquit the Appellant.
On the other hand, the Respondent’s brief was filed on 20/01/14, but deemed properly filed on 06/5/14. It spans a total of 28 pages. At page 8 of the said brief, two issues have been raised for determination to wit:
(1) Whether the prosecution has proved beyond reasonable doubt the offence of conspiracy against the Appellant.
(2) Whether the prosecution has proved beyond reasonable doubt the offence of obtaining money under false pretence in count two (2) against the Appellant.

Issue No (1) is canvassed at pages 8 – 14 of the brief. In a nutshell, the submission of the Respondent is that given the circumstances surrounding the offence of conspiracy, which is usually concealed and frequently hatched in secret by the conspirators, it is thus not necessary to prove that the actual criminal act has been committed.
Further submitted, that conspirators do not need to know or meet each other previously. They could be living in different towns, cities and countries. It is sufficient that conspirators were in communication. See ERIM VS. THE STATE (1994) 5 NWLR (Pt. 345) 522 @ 524; OMOTOLA VS. FRNC (1999) 12 NWLR (Pt.682) 483 @ 501.
That, where two or more persons acted in concert and in furtherance of their common intention, each and every one of them is liable for the consequence of the act. In the instant case, the mere fact that the Appellant was the only one (who was) tried and convicted did not diminish his criminal responsibility, neither would it exonerate him. See Sections 7(b) and 8 of the Criminal Code; DAVID IDIOK VS. STATE (2006) 12 NWLR (Pt. 993) 1.
It was contended, that in the instant case, the Appellant admitted in Exhibits G & H that he received the sum of N7.5million from the PW1 for the purpose of purchasing a residential building for PW1. The money was shared between him and three others, without conveying the property to PW1 which constitutes an illegal act. That, the Appellant admitted in Exhibit H, that out of the N7.5million paid by PW1, the Appellant paid N3.8million to the property owner (Kings Agho), N350,000 (5% commission) for the Agent (Ayo Akinbode) and N150,000 as legal fee to the lawyer (Tunde Oisemoje). And that the sum N3.2million was used by the Appellant for his own benefit to sponsor his election campaign in Imo State.
According to the Respondent’s learned counsel, the PW1 paid the money to the Appellant with the intention of purchasing a residential building without the benefit of hindsight that the Appellant had an evil intention to defraud him in connivance with the purported Property Owner, Property Agent, and the Lawyer who prepared the unsigned/unexecuted contract of sale in respect of the said property. The innocent PW1 was never put in possession of the said property, and his money was never refunded.
It was contended, that the elements required to prove the offence of conspiracy were abundantly replicated from the account enumerated linking the Appellant, Kings Agho, Ayo Akinbode and Tunde Oisemoje, showing the meeting of their minds and the eventual agreement to act in concert to commit the offence of obtaining money by false pretence. Referring to pages 120 to 121, fines 28 – 29 of the Record, it was contended that the lower court succinctly captured the nexus between the Appellant and his co-conspirators at large. That the Appellant and his co-conspirators planned and agreed to commit the act has been established and proven beyond reasonable doubt by the prosecution, as required by law.
The court is urged to allow the finding of guilt against the Appellant by the court below, and dismiss the appeal on Issue No. 1.
Issue No. 2 was canvassed at pages 14 – 26 of the said brief.
It was submitted, that the Appellant’s admission in Exhibits G & H clearly buttresses the charge of obtaining money under false pretence. That, the lower court rightly enumerated the essential ingredients required by law to establish the offence of obtaining money under false pretence. See ODIAWA VS. FRN (2008) All FWLR (Pt. 439) 436 @ 447.
That, all the ingredients of the offence have been proved by the prosecution as laid down in ODIAWA VS. FRN (Supra). See also ONWUDIWE VS. FRN (2006) All FWLR (Pt.319) 774 @ 779 – 780.
Allegedly, the prosecution has shown that it was the Appellant that lured the PW1 into the transaction of the property. The Appellant by his own admission, established that he used the money to sponsor his political ambition, which fact he did not disclose to the innocent complainant (PW1).
Therefore, the prosecution has been able to positively demonstrate, through credible evidence, that the Appellant committed the offence as contained in the two count charge. What’s more, the Appellant admitted in Exhibits G & H to have committed the offence as charged. See STANLEY IDIGUN EGBEGHONOME VS. THE STATE (1993) 7 NWLR (Pt. 306) 383. That, assuming the Appellant has retracted the statements (Exhibits G & H), it does not affect the admissibility of the statements in evidence. See AYO VS. STATE (2009) 8 WRN 134 @ 139; STEPHEN VS. STATE (2013) 3 – 4 MJSC (Pt.1) 137 @ 142; EGBEGHONOME VS. STATE (Supra).
Further contended, that the Appellant did not adduce any reason at the trial as to why he did not convey the property to the complainant after receiving the full and final payment for the purchase of the property. Regarding the DW1’s evidence referring to transaction of 2007, it submitted that the subject matter of proceedings started in 2009, which suggests the fact that her evidence relates to another transaction. Further contended, that the Exhibit D, was issued by Appellant on 21/12/10 to extinguish his financial obligation in Exhibit C (Memorandum of Agreement) and post-dated to 07/4/11 for payment to the complainant, and not as a security.
That, Exhibit D was already issued before the matter was reported by the complainant to EFCC in April 2011. That, the argument of the Appellant on the issues is misplaced, misconceived and misleading, and should be discountenanced by the court. The court is urged to hold that the lower court was right when it held, at pages 120 to 121, lines 28 – 49 of the Record, to the effect that the two count charge has been established against the Appellant beyond reasonable doubt, having satisfied all the essential ingredients required by the law.
Finally, on the second issue, it’s submitted that the prosecution has discharged the burden placed on it by law to prove beyond reasonable doubt the offence of obtaining money under false pretence against the Appellant. It’s not the law that the prosecution should prove beyond shadows of doubt. See DIBIE VS THE STATE (2007) 9 NWLR (Pt.1038) 30.
The court is urged to affirm the decision of the lower court, confirm the conviction of the Appellant, and dismiss the appeal.
The Appellant’s reply brief was filed on 14/02/14, but deemed properly filed on 06/5/14. On Issue No. 1, it was reiterated that the transaction between the Appellant and complainant leading to this appeal cannot be covered under the umbrella of false pretence. On Issue No. 2, it was submitted that the elements that constitute the offence of obtaining money under false pretence, are co-related. Failure to prove one element negatively affects the prosecution case. That the prosecution has failed to prove the falsity of the transaction between the Appellant and the PW1. Thus, the prosecution has failed to prove the 1st – 4th of the elements of the offence. ODIAWA VS. FRN (Supra). The court is urged to disregard the Judgment of the lower court, and accordingly discharge the Appellant.

PRELIMINARY OBSERVATIONS
As alluded to above, the Appellant has raised a single issue at page 1 of the brief thereof for determination. Ironically, however, the sole issue was divided into seven sub-issues. Rather than canvassing argument on the sole issue, the Appellant argued each of the seven original grounds of appeal in the said brief. Inarguably, the procedure adopted by the Appellant in arguing the grounds rather than the issue raised in the brief thereof, appeal is novel and contrary to the well set out rules and practice of this court. Most essentially, a brief of argument must contain what in the Appellant’s brief, are the issues arising from the appeal vis-a-vis the amended or additional ground of appeal. Where possible or necessary, the reasons or argument canvassed in the brief shall be supported by accurate citation of statutory instruments, case law, law books, journals, et al. Reference shall also be made to all relevant documents or exhibits relied upon in the argument. On the part thereof, the Respondent shall in the brief thereof, answer all material points of substance raised in the Appellant’s brief. See Order 18 Rules 3 & 4 of the Court of Appeal Rules, 2011.
It is a well settled doctrine, that grounds of appeal must arise from the ratio decidendi of the decision of the lower court appealed against. Afortiori, the issues canvassed in a brief of argument must be distilled from valid grounds of appeal. In essence, argument is normally canvassed on the issues raised in a brief of argument. As such grounds of appeal are not argued in a brief. Where no issue for determination is formulated from a ground of appeal, the ground is deemed abandoned, thus liable to be discountenanced. See ACMEL (NIG) LTD VS. FBN PLC (2014) 6 NWLR (Pt. 1402) 158 @ 179 paragraph.

It is equally a trite doctrine, that where the court deems it expedient it may reformulate the issues raised by the parties in the interest of clarity, precision and brevity. See UNITY BANK PLC VS. BOUERI (2008) 2 SCM 193; EMEKA NWANA VS, FCDA (2004) 7 SCM 25; (2004 13 NWLR (Pt. 889) 128; AGBAKOBA VS. INEC (2008) 18 NWLR (Pt. 1019) 489; BAKARE VS. AJOSE-ADEOGUN (2014) 6 NWLR (Pt.1403) 320 @ 349 paragraphs F – G.In the circumstance, I think the two issues raised by the Respondent in the brief thereof are much more apt for the determination of the appeal than the sole issue formulated by the Appellant. Thus, I have deemed it appropriate to adopt the Respondent’s two issues for the determination of the appeal, anon.

ISSUE NO 1:
The first issue raises the vexed question of whether or not the prosecution has proved beyond reasonable doubt the offence of conspiracy against the Appellant.
The Issue No. 1 is distilled from ground 2 of the notice of appeal which relates to count one of the charge contrary to Section 8(A) and punishable under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act, 2006. As alluded to above, the Appellant was tried by the court below upon a two count charge of conspiracy with three other suspects who are still at large and obtaining money under false pretence, from the PW1. Only the Appellant was tried and convicted upon both counts of the charge.
The provision of Section 8(A) of the Advanced Fee Fraud and Other Related Offences Act 2005 (Supra) is to the following effect:
8. A person who
a. conspires with aids, abets, or counsels any other person to commit an offence; under this Act, commits the offence and is liable on conviction to the same punishment as is prescribed for that offence under this Act.
In the course of the trial, the prosecution called three witnesses and tendered various exhibits – Exhibits A1 – 8, B, C, D, E, F, G and H. The PW1 was Emmanuel Agbongiague of No. 1, Ekiosa Street, Off 2nd East Circular Road, Benin City. He’s a Civil Engineer by profession. He testified on 29/02/12. The PW1 testified to the effect, inter alia, thus:
I know this accused person. The accused person between about November 2009 November 2010 lured me into parting with the sum of 7.5million Naira purportedly to purchase a residential building for me in Benin City and hence defrauded me because the purported purchase did not take place after receiving the full amount from me.

The PW1 narrated that the Appellant was a guardian to his wife. That on several family visits to the Appellant in Benin from Lagos, the Appellant magnanimously offered to help the PW1 with accommodation in Benin. The Appellant claimed proficiency in property matters and informed the PW1 that he had found a property behind his residence. The PW1 inspected the property. He was advised by the Appellant that it would cost him N7.5million. It was agreed, that the PW1 should stargard his payments over a period of time. He made instalmental payments spread over the period of November 2009 and completed payments on November 23, 2010. He later sought the necessary legal transfer of the property to him, but the Appellant was not forthcoming. The PW1 started further thus:
I made up time to come and meet him in Benin on 23-12-2010 where he pleaded that he has appropriated the money (fund). Sensing his error and my distress we consented to enter into a formal agreement with my lawful highlighting all the issue, before now and recognition of the long family tie and relationship existed since 2002.

Consequent upon that agreement, the Appellant issued a cheque in the sum of N7.5million payable on 07/4/2011. However, the Intercontinental Bank declined the cheque when presented on 07/4/2011. Having been convinced that he had been defrauded by the Appellant, the PW1 petitioned the EFCC. The PW1 testified further thus:
I made payments to accused person same in Bank drafts paid through tellers in the accused Accounts he furnished me at the Intercontinental Bank and also cash of 1000 USD one thousand dollars at the exchange rate of N150 per dollar as at that date, making up the total of 7.5million Naira.
The Deposit Slips dated 31/8/10 (N700,000), 15/7/10 (N600,000), 03/3/10 (N2.1m), 25/01/10 (N360,000), 08/01/10 (N1.4m), 14/9/09 (N550,000), 29/12/09 (N250,000) and 21/12/09 (N800,000) were admitted vide the PW1 as Exhibits A1 – 8. While the Draft cheque of 23/11/10 (N650,000) was admitted as Exhibit B.
Testifying further, the PW1 stated that he later entered into an agreement with the Appellant, and security cheque was issued for N7.5million. The Memorandum of Agreement and the security cheque were both admitted by the court as Exhibits C and D.
Under cross-examination by the defence counsel, Eriakhuemeh, the PW1 stated that before the issue of buying the property cropped up, he had a strong relationship with the Appellant. He was a good friend to the Appellant. He said he trusted the Appellant, but it’s not true that he occasionally spent a week or two in his house. He had not heard of Ayo Akubode’s name. He denied knowing King Agho as owner of the house and living in London. That the N7.5million was paid to the Appellant over a long period in trust and confidence reposed in him and the false presentation made to him by the latter. That, the mutual agreement made on 23/12/10 is explicit. He denied knowledge that the property was still unsold. He neither knew the owner of the property nor the amount paid therefore by the Appellant. He recalled that after petitioning the EFCC, he received about four Bank Alerts about June, July 2011 to December 2011, totaling N1.75million in the names of Mrs. Agugba and Appellant. He admitted that the Appellant never defrauded before until now. He denied telling the court lies that he did not stay in Appellant’s house for a week or two.
The PW2 was Alimi Kamil, a Banker, Head of Operation with Access Bank, formerly Intercontinental Bank, Mission Road Branch, Benin City. His testimony is to the effect that some times in June, 2011 a letter was sent to his Bank by EFCC requesting for documentation and Statement of Account of their customer in the person of the Appellant. By his position as Head of Operation, he has the right to tender those documents to EFCC. He generated and certified the Statement of the Account of the Appellant by stamping and appending his signature thereupon. He identified the Certified True Copies of the Appellant’s Account (No. 003411500003153) which was admitted as Exhibit E. The PW2 lastly told the court that the closing balance of the said Account, as at 29/5/2011, was N16,164.59.
Under cross-examination, by Eraikhuemen, the PW2 informed the court that a letter was sent by EFCC to his office directing him to appear in court and testify. No subpoena from the lower court. That the said Account was not fraudulently opened. No fraud was discovered in the transactions in that account.
The PW3 was Aminu Ismaila of No. 64 Ohemeh Street, Old G.R.A., Port Harcourt, an EFCC operative. He testified to the effect that sometimes in the month of July, 2011, the EFCC received a petition dated 12/4/11, signed on behalf of the PW1, alleging that the Appellant obtained the sum of N7.5million under false pretence from the PW1. That the Appellant issued an Intercontinental Bank Cheque to PW1 but on presentation to the bank, it was returned unpaid. That consequent upon the said petition, the PW1 was invited to EFCC office where he made a voluntary statement and adopted the petition. On 23/5/2011, a letter of enquiry was written to the Branch Manager, Intercontinental Bank Plc, Mission Road, Benin City for a statement of account of the Appellant. The EFCC received a reply from the Bank with certified copies of the Appellant’s statement of account and opening package. From the statement, it was discovered that the Bank Cheque No. 122, dated 07/4/11, was issued by the Appellant to the PW1 who presented same to the Bank on 11/4/11. However, on presentation, it was discovered that the Appellant had only approximately N127,000 in his account, meaning that the account was not funded to accommodate the cheque, hence it was returned unpaid.
Consequent whereupon, the PW3 and investigating team went to Port-Harcourt and arrested the Appellant on 04/7/11 and took him to Port-Harcourt the following day. The Appellant was shown the PW1’s petition, read through it and made a statement under caution admitting the allegation.
The written contract of sale of the purported property prepared by Tunji Asosoje, dated 15/02/10 was identified by PW3 and admitted by the lower court as Exhibit F. The deposit slips, statement of accounts and the extra-judicial statement of the Appellant were also identified by PW3, and accordingly admitted as Exhibits A1 – 8, B & E, G & H, respectively. The PW3 further stated, that in the course of the investigation, the Appellant failed to produce the persons he mentioned in his statement as beneficiaries. Neither the property agent (Ayo) nor the lawyer alleged to have prepared the contract of sale could not be located. He did not take the PW3 to the property but he only pointed at it.
Under cross-examination by the defence counsel, the PW3 reiterated that the Appellant failed to produce the owner of the property and the receiver of the money up to date. He would not know if the Appellant had paid more than N1.2million to the PW1. That the Appellant refused to give them the addresses and locations of those he alleged in his statements.
On the other hand, the evidence of the DW1, Mrs. Esther Agho, is to the effect that she knew the Appellant about four years back, when he came to negotiate with her son (Kings Agho), for a building for the Appellant’s friend she further stated, that the property was located at No. 3, Omoghe Street, Uselu, Lagos Road, Benin City. That, the property was built by her late husband. Her son (Kings Agho) inherited the property from her late husband. The said Kings Agho was then based in London. That she was aware of her son’s intention to sell the property. She was also aware that her son received money totalling to N3.8million out of the N7.5million. However, she was not aware of any other payment apart from N3.8million. Her son did not return the money, as he was not asked to do so. The property is still there for sale.
Under cross-examination, the DW1 stated that she first heard about the transaction sometime in 2007. The Appellant went with the agent to her house. She confirmed that it was her son who told the agent to sell the property. In 2011 her son came back to Nigeria to collect the balance. But they did not pay him. So he went back (to London). The DW1 stated further thus:
26. The originals of title documents are with me. I gave Agent and accused only photocopies of it.
27. I do not bring the documents to court with me because I was not told to bring them.
28. I am not aware that the accused was paid 7.5million naira.
29. Accused person told me that the balance was not given to him, that is why he did not sent (sic) the balance.
30. He said the money balance was not ready that is why he did balanced (sic) it up i.e. paid the balance.
34. I did not sign any document for my son because the money was not fully paid.
The evidence of the Appellant as DW2 was to the effect that sometime between 2009 and 2010, the PW1 being his close friend and son in-law, visited him and expressed a desire to acquire a property within the area of the Appellant because of its serenity. He further stated, that he eventually got a five bedroom duplex. The PW1 came and he showed him the property but could not have access to the rooms. So the PW1 took photograph of the property and asked the Appellant to make enquiries thereon. Upon enquiries, the Appellant said he discovered that Kings Agho, the owner of the property, lived in London. Mr. Ayo Akinbode was the Agent for the property situated at No. 3, Omoaghae Drive, Off Osaretin Asemota Street, Uselu, Benin City. He contacted the said Agent who made available the keys thereto. Later the PW1 came and inspected the house and said it was good for him to buy. That, as a Civil Engineer, the PW1 said the house was worth N12million, but that he would pay N10million if the owner agreed. The PW1 asked him to perfect the process of acquiring, and he went back to Lagos.
Further stated, that through his efforts after much negotiations, the Agent and owner of the property agreed on N7million. Then the Appellant, PW1 and Agent unanimously agreed on 5% commission (fee), amounting to N350,000.00 and agreement fee of N150,000.00, thus totalling to N7.5million. It was also agreed that payment be made on three instalments of (i) N3million, first instalment; (ii) N2million, second instalment; and (iii) N2million, third instalment, making the total of N7.5million for the cost of the property. The Appellant further stated thus:
The complainant sent his seven million five hundred thousand naira 7.5million in several instalments as the money came I paid 3.8million.
The money came through my Bank Account, I paid to the property owner through his Agent and receipts were issued to me. I can identify the receipts issued to me after payments for the properties. The original receipts are with the complainant’s lawyer Barrister Jones.

The two original receipts in question were admitted vide the DW2 (Appellant) as Exhibits 11 & 2 for the sums of N800,000.00 and N3,000,000.00, respectively. The Appellant also stated that he paid the sum of N350,000.00 and N150,000.00 to the Agent, although he said he has no evidence to show acknowledgement thereof by the Agent. Exhibit F, was the agreement drafted by the Agent. The Appellant, however, further stated thus:
When I received the money 7.5million from the complainant, I paid to the property owner and the Lawyer and Agent as stated 4.3million. The balance of 3.2million with me.
The money came in instalments and at that time I had serious pontical (sic) challenges so I used the money. When the complainant came I told him that I had used the money and that I was making efforts to raise the money to that he can acquire the property.
He was annoyed and said he was no longer interested in the purchase of the property. I passionately pleaded with him he did not agree and insisted that we should go to his lawyer Barrister J. Jones to draft agreement between two of us reflecting the sum of seven million naira he transferred into my account so that he could show his wife i.e. my daughter where the sum of 7.5mlllion disappeared.

According to the Appellant, Barrister Jones later drafted an agreement, (Exhibit C). Pursuant to which agreement, the Appellant paid N1.2million and N650,000.00 vide his wife into the PW1’s Account, thus totalling to N1.85million. The four deposit slips representing the payment of the sums of (i) N1.2million into First Bank Account on 15/5/11; (ii) N150,000.00: GTB Account on 09/9/11; (iii) N200,000.00 :GTB Account on 23/11/11; and (iv) N200,000.00: GTB Account on 15/3/11; respectively were admitted as Exhibits J1- 4.
The Appellant testified further thus:
In the whole I paid 1.85million to the complainant. What remains to be paid to the complainant is N1.35million. I will pay this money to the complainant. I know the complainant about 13 years now. He assisted me so much when I was doing my masters program at the University of Ibadan.
When he was dissatisfied he reported me to the EFCC and I was arrested. He himself admitted in his testimony that I paid him 1.75million, I made statement at EFCC office, Exhibit “H & G”.

Exhibits D, H, G, & F were duly identified by the Appellant. Exhibit K, the Appellant’s Access Bank Account was equally admitted vide the Appellant. The Appellant finally testified thus:
I did not pocket all the money given to me to myself. The property exists and is still there for sale. I advised the complainant to exercise patient (sic) but he refused. The owner of the property is unable to give us back the money paid to him. I am trying to pay the complainant the remaining 1.35million naira with me.

Under cross-examination by Edobor Esq, the Appellant admitted to the facts that –
4. Yes the property was for 7million, N500,000 was for Agent and Lawyer fee.
5. Yes complainant paid me 7.5million.
6. Yes. This property was never conveyed to the complainant.
7. No. The complainant has no balance to pay before he is put into possession of the property. He has paid all.

The Appellant equally admitted to the following facts –
17. Yes, Agent, Lawyer, owner of the property took money from complainant but he is not put in property.
18. Yes, DW1 said she is not aware of 7.5million naira paid.
19. No. I did not tell her that complainant has paid fully 7.0million for the property.
20. Yes, the Agent, Lawyer and property owner had 4.3million and I had 3.2mlllion.
21. Yes, I used it for my Local Government Election in my State, Imo State.
22. Complainant did not borrow (sic) me the money.
26. As at 30-04-2010 closing balance was 22,064.59k to my credit.
27. I issued 7.5million on the cheque.
29. I did not write on the cheque that I did not have money in my account.
32. I am ready to put complainant into the property, if he could accept.
It was consequent upon the addresses of the respective learned counsel, that the lower court delivered the vexed Judgment on the said 13/6/13, to the conclusive effect, thus:
The totality of the whole case leads to only one conclusive and that is the prosecution has proved the case on each of the two counts against the accused person beyond reasonable doubt and accused person failed to rebut.
Consequently, I accept the prosecution evidence and hereby find the accused person guilty on each of the two counts and convicted him thereof as charged.

Invariably, the term conspiracy denotes an agreement by two or more persons to commit an unlawful act, or a lawful act by an unlawful means, coupled with an intent to achieve the agreement’s objective. Conspiracy in itself constitutes a distinct offense from the predicate crime that is the object of the conspiracy. In essence, therefore, conspiracy ends when the unlawful act has been committed or the [mutual] agreement has been discarded (abandoned). A conspiracy does not come to an abrupt or automatic end merely because its object is defeated. See BLACKS LAW DICTIONARY, 9th Edition, 2009 @ 351 to 352.
According to P.H. Winfield –
When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers, they commit the tort of conspiracy. See A TEXTBOOK ON THE LAW OF TORT 5th Edition 1950 @ 434; BLACK’S LAW DICTIONARY (Supra).
In the case of KRULEWICH VS. UNITED STATES, the US Supreme Court was recorded to have aptly held, inter alia, thus:
[Conspiracy is an] elastic, sprawling and pervasive offense… so vague that it almost defies definition. Despite certain elementary and essential elements, it also, chameleon-like, takes on a special coloration from each of the many independent offenses on which it may be overlaid. It is always predominantly mental in composition because it consists primarily of a meeting of mind and an intent. See (1949) 336 US 440, 445 – 448; 69 SC 716, 719 – 920 per Jackson, J(SC).

The offence of conspiracy is completely consummated (committed) the very moment two or more persons have agreed to do, either immediately or at some future time, certain things. It’s not at all necessary that any one thing should be done beyond the agreement mutually reached upon. Thus, at that crucial stage, even if the conspirators developed a cold-feet (out of sheer cowardice), repented and stopped, due to lack of opportunity to carry out their mutual agreement et al, the offence is deemed a fait accompli. See MAJEKODUNMI VS. QUEEN (1952) 14 WACA 64; ERIM VS. STATE (1994) 5 NWLR (Pt.346) 522 @ 534 paragraphs A – B.
In the case of ERIM VS. STATE (Supra), it was held by the Supreme Court thus:
In order to prove conspiracy, it is not necessary that there should be direct communication between each conspirator and every other, but the criminal design alleged must be common to all. Indeed one conspirator may be in one town and the other in another town and they may never have seen each other but take would be acts on both sides which would lead the jury or the Judge sitting alone to the inference. Per Ogwuegbu, JSC @ 335 paragraphs C – D. See also R. VS. MEYRIC & ANOR. 21 CAR 94; QUEEN VS. ESEGE (1962) 1 SCNLR 189; (1962) 1 ANLR 110; OYERIDAN VS REPUBLIC (1967) NMLR 122; HARUNA VS. STATE (1972) ANLR 738 (Reprint); (1972) 8 – 9 SC 172.In the instant case, the fact that the Appellant had misappropriated part of the N7.5million deposited by the PW1 into his Bank Account for the purpose of purchasing the house in question is not at all in doubt. Even the Appellant himself had admitted or confessed to that fact both in the extra judicial statement and lpsi dixit thereof. Indeed, the Appellant has admitted both in his examination in-chief and under cross-examination, to the fact that the complainant (PW1) had paid to him the sum of N7.5million for the purpose of purchasing the property in question which was never conveyed to the complainant.
However, throughout the testimony of the Appellant, there is no where the Appellant has conceded to, or admitted, the fact that he had agreed or conspired with the owner of the property (Kings Agho), the agent thereof, or the lawyer that drafted the sale agreement, to defraud or misappropriate the complainant’s money in question. In my considered view, the prosecution has failed to prove beyond any reasonable doubt that the Appellant had conspired with any of the said persons, or any other person for that matter, to defraud the complainant of the amount of money in question. Thus, I have no hesitation in holding that the lower court was in error when it held that the prosecution had proved, beyond reasonable doubt, count 1 of the charge, regarding conspiracy under Section 8 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 (Supra). Thus, the Issue No. 1 is hereby resolved in favour of the Appellant, against the Respondent.

ISSUE NO. 2:
The second issue raises the vexed question of whether or not the prosecution has proved beyond reasonable doubt the offence of obtaining money under false pretence against the Appellant, contrary to Section 1(1)(A) of the Advance Fee Fraud And Other Fraud Related Offences Act, 2006 (Supra).
I think, in view of the circumstances surrounding the appeal vis-a-vis the evidence on record, it’s rather obvious that the answer to that pertinent question is not far-fetched.
The term false pretences denotes the offence (crime) of knowingly obtaining title to another person’s property by misrepresenting a fact with the intent to defraud that person. Also termed obtaining property by false pretenses; fraudulent pretenses; larceny by trick; embezzlement, et al. See BLACK’S LAW (Supra) @ 678.
The crime of obtaining money by false pretenses (pretence) has been aptly defined under the Advanced Fee Fraud and Fraud Related Offences Act, (Supra) thus:
20. In this Act – “false pretence” means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.
By virtue of Section 418 of the Criminal Code Act CAP. C38 Laws of the Federation of Nigeria, 2006,the term false pretence has been defined thus:
Any representation by words, writing, or conduct of a matter of fact either past or present, which representation is false infact and which the person making it knows to be false or does not believe to be true is false pretence.

Indeed, the law is settled, that the fundamental ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are as follows:
(a) that there was a pretence;
(b) that the pretence emanated from the accused person;
(c) that the pretence was false;
(d) that the accused person knew of the falsity of the pretence, did not believe its truth;
(e) that there was an intention to defraud;
(f) that the property or thing is capable of being stolen;
(g) that the accused person induced the owner to transfer his whole interest in the property. See ONWUDIWE VS. FRN (2006) All FWLR (Pt.319) 774 @ 812 to 813 paragraphs G – F, per Niki Tobi, JSC. See also ODIAWA VS FRN (2008) All FWLR (Pt. 439) 436..

It should be reiterated, that the offence of obtaining property by false pretences could be committed in writing, or even by mere oral communication of the accused person. Contrariwise, an honest belief in the truth of the statement on the part of the accused person, which turns out to be false, cannot found a conviction on false pretence.In the instant case, it’s evidently proved on the records, that the Appellant has admitted both in his extra-judicial statement (Exhibit H) dated 06/7/11, that the PW1 paid him the sum of N7.5million for the purchase of a residential house. And that out of the total sum (N7.5million) he paid the sum of N3.5million to the property owner (Kings Agho); N350,000.00 to the Agent as 5% commission; and N150,000.00 to the Lawyer, as legal fees. But that he used the sum of N3.2million for his Local Government election campaign. The Appellant equally admitted to the fact that the property was neither delivered to the PW1 nor was the money (N7.5million) refunded thereto.
In the course of the trial, the prosecution was able to establish to the satisfaction of the lower court, the fact that it was the Appellant who actually lured the PW1 into the transaction of the purchase of the property in question. At page 22, lines 11 – 15 of the Record, the PW1 was recorded to have aptly testified thus:
The accused person between about November 2009 – November 2010 lured me into parting with the sum of 7.5million Naira purportedly to purchase a residential building for me in Benin City and hence defrauded me because the purported purchase did not take place after receiving the full amount from me.
Arguably, the above piece of evidence of the PW1 is credible, reliable and unchallenged, thus it’s deemed duly admitted by the Appellant.
What’s more, the Appellant has unequivocally admitted to the fact that after receiving the said purchase sum of N7.5million from the PW1, he paid only the sum of N3.8million to the property owner (Kings Agho), N350,000.00 to the Agent as 5% commission, and N150,000.00 to the Lawyer as legal fees. Most regrettably, however, he decided to fraudulently pocket the balance of the money at the expense of the PW1.
It is equally evident on the records, that the Appellant, deliberately refused to inform the property owner (Kings Agho) the fact that he (Appellant) had actually received the entire sum of the purchase money (N7.5million) from the buyer (PW1). As alluded to above, the Appellant had stated, most shamelessly, that he pocketed part of the purchase money to finance his Local Government election campaign. At page 80, lines 9 – 15, of the Record, the Appellant has testified thus:
When I received the money 7.5million from the complainant, I paid to the property owner and the Lawyer and the Agent as stated 4.3million. The balance 3.2million with me. The money came in instalments and at that time I had serious pontical (sic) challenges so I used the money. When the complainant came I told him that I had used the money and that was making efforts to raise the money so that he can acquire the property.
The Appellant has succeeded in proving to the court that he is an ingrate. He has undoubtedly betrayed the trust faithfully reposed in him by the PW1. It’s evident on the record, that the PW1 had been generously disposed to the Appellant. In his own words, the Appellant had testified to the fact, thus:
“I know the complainant about 13 years now. He assisted me so much when I was doing my masters program at University of Ibadan.”
The false pretence on the part of the Appellant in the present case, is very obvious. At the material time the Appellant converted the part of the sum N7.5million i.e. N3.2million to fund his Local Government electioneering campaign, the Appellant knew very well that the property owner would not deliver the house to the PW1 without the payment of the remaining balance of the purchase price. And that was what made the pretence false. And because of his fraudulent intent, the Appellant deliberately kept the property owner utterly in the dark by refusing to inform him that the purchase money (N7.5million) had actually been fully paid by the buyer (PW1). Against the backdrop of the foregoing reasoning vis-a-vis the credible evidence on record, I am of the considered firm view that the prosecution has remarkably proved, beyond reasonable doubt, the second count of the charge of obtaining money by false pretences against the Appellant. And I so hold. See AKOSA VS. COP (1950) 13 WACA 43; OSHIN VS. ADEGBOYEGA (1937) 3 WACA 199; ADEYEMI VS. COP (1961) ANLR 387; R. VS. LOGIN (1959) LCR 64; ONWUDIWE VS. FRN (Supra) @ 813 paragraphs D – F.
I have deemed it pertinent to reiterate, at this crucial point in time that even on the basis of the Appellant’s voluntary admission (confession) in Exhibits G & H (dated 05/7/2011 and 06/7/2011 respectively) and the ipsi dixit alone, the Appellant could be said to have been rightly convicted by the lower court under the second count of the charge in question. My conviction is predicated upon the trite fundamental principle, that-
Where an extra-judicial confession has been proved to have been made voluntarily (as in the instant case) and it is positive and unequivocal and amounts to an admission of guilt (as obviously in the present case), it will suffice to ground a finding of guilt regardless of the fact that the maker resiled from it or retracted it altogether at the trial since such a u-turn does not necessarily make the confession inadmissible. See EGBOGHONOME VS. STATE (2009) 8 WRN 134; STEPHEN VS. STATE (2013) 3 – 4 MJSC (Pt. 1) 137.

In the light of the above far-reaching postulations, there is every cogent reason for me to hold that the answer to the second issue is most inevitably is in the positive, and same is hereby resolved against the Appellant, in favour of the Respondent.
Hence, having resolved the first issue in favour of the Appellant, while the second issue against him, it has become most inevitable, that the instant appeal ought to succeed in part. Thus, the appeal is allowed in part.

CONSEQUENTIAL ORDERS:
Consequently, having allowed the appeal in part, I have deemed it imperative to order as follows: (1) That the conviction and sentence passed upon the Appellant by the lower court under count 1 of the charge is quashed and the Appellant is discharged and acquitted in respect of the said first count for the offence of conspiracy, contrary to Section 8 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
(2) That the conviction and sentence passed upon the Appellant by the lower court under count 2 of the charge for the offence of obtaining money by false pretences under Section 1(1)(A) and punishable under Section 1(3) of the Advance Fee Fraud And Other Fraud Related Offences Act, CAP. A6 2006 (Supra), is hereby affirmed.
Before putting the very last dot to this Judgment, I have deemed it aptly expedient to re-echo the immutable philosophical, and rather authoritative admonishing of the Supreme Court, thus:
There is the aphorism that money is the root of evil. I do not agree with this general statement because good money is a source of pride and satisfaction to the earner or owner. It is only bad money that is a root of all evil, like the bad money the appellant acquired. See ONWUDIWE VS. FRN (Supra) per Niki Tobi, JSC @ 814 paragraph A.

HAMMA AKAWU BARKA, J.C.A.: I had the privilege of reading in draft the lead judgment of my Lord, IBRAHIM MOHAMMED MUSA SAULAWA, JCA, just delivered, I agree entirely with the reasoning and the conclusion in the said lead judgment which dealt with all the issues beautifully. I adopt same as my own, and therefore also come to the conclusion that this appeal succeeds in part. I order that the conviction and sentence of the appellant by the lower court, under count 1 of the charge is quashed and appellant discharged and acquitted accordingly.
That the conviction and sentence of the appellant by the lower court under count 2 of the charge is hereby affirmed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa, JCA. In His Lordship’s trademark and characteristic penchant for details, he has set out in an effulgent manner the facts leading to this appeal and meticulously considered all the issues arising in the appeal. I agree with his reasoning and conclusion. I only wish to add a few words with respect to the conviction of the Appellant by the lower court for the offence of obtaining by false pretences, which conviction was pellucidly affirmed in the lead judgment.
The charge against the Appellant in Count two which is obtaining by false pretences alleges that with intent to defraud, the Appellant obtained the sum of N7.5m from the Complainant under the false pretence that the money would be used to purchase a property situate at No. 7 Ahonore Close, Uselu, Benin City, for the Complainant. The evidence adduced by the Prosecution disclosed that the Appellant made the representation to the Complainant that the property was available for sale, induced by this representation, the Complainant paid the purchase amount into the account of the Appellant. The property was never purchased and/or delivered to the Complainant.
By this elaborate cozenage, the Appellant inveigled and beguiled the Complainant into parting with the sum of N7.5 million. In the old English case of R vs. JOHN JAMES SULLIVAN 30 Cr APP R 132 at 134 which was quoted with approval by Obaseki, JSC in IJUAKA vs. COMMISSIONER OF POLICE (1976) LPELR (1466) 1 at 11, Humphreys, J., dealing with what had to be proved in order to establish the intent to defraud which is an essential element necessary to secure conviction on a charge of obtaining by false pretences stated as follows:
“In order that a person may be convicted of that offence it has been said hundreds of times that it is necessary for the prosecution to the prove to the satisfaction of the jury (court) that there was some mis-statement which in law amounts to a pretence, that is, a mis-statement as to an existing fact made by the accused person; that it was false and false to his knowledge; that it acted upon the mind of the person who parted with the money; that the proceeding on the part of the accused was fraudulent. That is the only meaning to apply to the words with intent to defraud.”

As has been brilliantly analyzed and demonstrated in the lead judgment of my Lord, Saulawa, JCA, it was the representation that the property at No. 7 Ahonore Close, Uselu, Benin City would be bought that made the Complainant part with his money. The Appellant having received the money did not utilize the money for the purpose represented, such that the property was never delivered to the Complainant. Without a doubt, the ingredients of the offence of obtaining by false pretences were made out and that count of the charge against the Appellant was established beyond reasonable doubt. See AMADI vs, STATE (2008) LPELR (441) 1 at 25 or (2008) 12 SC (PT III) 55 (per Mukhtar, JSC as he then was).
It is for the foregoing reasons and the more detailed reasons contained in the lead judgment that I also affirm the judgment of the lower court convicting the Appellant on the count of obtaining by false pretences and the sentence imposed as punishment.