ROSULU IDOWU RONKE v. FEDERAL REPUBLIC OF NIGERIA (2017)

ROSULU IDOWU RONKE v. FEDERAL REPUBLIC OF NIGERIA

(2017)LCN/9560(CA)

(2017) LPELR-43584(CA)

In The Court of Appeal of Nigeria

On Friday, the 24th day of February, 2017

CA/L/182C/2016

RATIO

PROCEDURE: COMPETENCE AND JURISDICTION; CONDITIONS AND REQUIREMENTS
The question of jurisdiction is fundamental and its absence strikes at the root and tap-roots of every trial. It is desirable that issue of jurisdiction be raised timeously at the earliest opportunity, where that is not done, it may be raised for the first time even on appeal in this Court or the Supreme Court. Any proceedings conducted without the requisite jurisdiction amounts to a nullity however well and brilliantly conducted and decided, this is the law in seemingly endless decisions. See: ANYANWU vs. OGUNEWE & ORS (2014) LPELR-22184 (SC) Pg. 31-32, AGU & ANOR vs. COP (2016) LPELR-40026 (CA) Pg. 12, and ONI vs. CADBURY NIGERIA PLC (2016) LPELR-26061 (SC) pg.29.
The law is settled on when a Court is competent to exercise jursdiction over a matter. The Supreme Court in MADUKOLU vs. NKEMDILIM 1962 All NLR (PART 4) 587 (2001) 46 WRN 1 held that: A Court is competent when; (a) it is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another. (b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and (c) the case came before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. The above stated conditions have been restated in a long line of cases and more recently in SPDC & ORS vs. AGBARA & ORS (2015) LPELR-25987 (SC) Pg. 28, CBN vs. UBANA & ORS (2016) LPELR-40366 (CA) Pg. 9-10, and ONI Vs. CADBURY NIGERIA PLC {supra) at pg. 29-30, where OGUNBIYI, JSC held as follows and I quote: “The issue of jurisdiction is constitutional and cannot be conferred on the Court either by itself or by the consent of the parties/counsel themselves. It is needless to say also that it cannot be partially conferred but must be either total or none at all. In other words, the conditions or criteria stipulated in the principles laid down in the case of Madukolu v. Nkemdilim (supra) must all co-exist in totality for the Court to be properly constituted. PER TIJJANI ABUBAKAR, J.C.A.

PROCEDURE: WHEN OBJECTION TO A CHARGE CAN BE MADE
The law is trite, that an accused person who has an objection to a charge for any formal defect on the face thereof or for any perceived irregularity relating to procedure, the accused person ought to make his objection immediately after the charge has been read over to him and not later. The learned Counsel for the Appellant said that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. I must state that whilst the issue of jurisdiction can be raised at any stage of the proceedings, the question of a defect or ambiguity in the Charge has to be raised immediately the Charge is read over to the accused and not later. see: NDUKWE vs. LPDC [2007] 5 N.W.L.R. (1026) 1 at 52 (SC), MAGAJI vs. NIGERIAN ARMY [2008] 8 NWLR (pt.1089) 388 at 383-384, (SC), DES – DOKUBO vs. THE NIGERIAN ARMY (2015) LPELR-25969 (CA)Pg. 23-24, and MADU & ORS vs. FRN (2016) LPELR-40315 (CA) Pg. 21. Again, the law is well settled beyond any controversy that where an accused person conceives that he needs to raise objection to a charge, such objection must be raised timeously at the trial Court preferably before or upon arraignment or immediately thereafter. See: AMADI vs. FRN (2008) 12 S.C (Pt. 111), FRN vs. ADEWUNMI (2007) 10 NWLR (Pt. 1042) 399 and EDUN vs. POLICE (1966) 1 All NLR 43. PER TIJJANI ABUBAKAR, J.C.A.

.
EVIDENCE: PROVING THE DEFENCE OF ALIBI
On the issue of Alibi, the law has been consistently stated that once an accused successfully puts up the defence of Alibi, the Prosecution has a duty to investigate in order to disprove it, however, it is not enough for an accused to merely put up the defence of Alibi by saying that he was not at the scene of the crime without providing details and proof of his whereabouts at the time of the commission of the alleged offence. In FABIAN NWATURUOCHA vs. THE STATE (2011) LPELR-8119 (SC) pg. 16-17, FABIYI, JSC said as follows and I quote:
“Alibi means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal.” See: Yanor v. The State(1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1965) SCNLR 113, Gachi v. The State (1979) 1 NWLR 331; and Odu & Anor. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668. In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:- “There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused and disprove the alibi or attempt to do so, there is no flexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished.” I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution. The onus of establishing alibi is on the accused person since it’s a matter within his personal knowledge. The defence of alibi would succeed if of the earliest opportunity after his arrest he gives to the police sufficient particulars of where he was at the time the crime was committed and Police investigation of his alibi turns out to be true.” See also OBIDIKE vs. THE STATE (2014) LPELR-22590 (SC) pg. 48, MOHAMMED vs. THE STATE (2015) LPELR-24397 (SC) pg. 44, and ADEBIYI Vs. THE STATE (2016) LPELR-40008 (SC) Pg. 19-20. PER TIJJANI ABUBAKAR, J.C.A.

PRACTICE: IDENTICATION PARADE
In ADEYEMI Vs. THE STATE [1991] 2 NWLR (pt. 170) 679, (1991) LPELR-168 (SC) Pg. 20, the Supreme Court per OLATAWURA JSC held that: “It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated identification parade. Identification depends on the mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence.” See: AFOLALU Vs. THE STATE [2010] 16 NWLR (Pt. 1220) 584 SC, (2010) LPELR-197 (SC) Pg. 31, OCHIBA vs. THE STATE (2011) LPELR-824 (SC) Pg. 35, ADESINA & ANOR vs. THE STATE (2012) LPELR-9722 (SC) Pg. 35, OLANIPEKUN vs. THE STATE (2016) LPELR-40440 (SC) Pg. 16-17, and OKIEMUTE vs. THE STATE (2016) 15 NWLR (Pt.1535) 297 at 301-304. Identification parade is not the only means of identifying a person who is suspected to have committed an offence. An identification parade becomes necessary where the victim did not know the accused person and his initial acquaintance was during the commission of the crime, or that the victim was confronted briefly by the offender, or the victim was unable to observe features of identification of the offender due to insufficient opportunity to do so, but where there is clear and uncontradicted eye witness account of identification of the person who committed the offence, or that the witness knew the accused person previously, where the witness says the accused is a familiar or definite person by name or by abode, or he can be positively identified, and the accused is connected to the commission of the offence by concrete, cogent and convincing evidence, in such circumstance identification parade will not be necessary See: OKIEMUTE Vs. STATE (Supra). PER TIJJANI ABUBAKAR, J.C.A.

CRIMINAL: PROOF OF CONSPIRACY
conspiracy has been simply defined as the agreement between two or more persons to carry out an illegal act. It must be stated that it is not always easy to prove the actual agreement by the conspirators to achieve their unlawful purpose. As far back as 1973, while stating the circumstances in which the offence of conspiracy can be inferred from the acts of the accused persons, the Supreme Court of Nigeria in PATRICK NJOVENS & ORS. Vs. THE STATE (1973) ALL NWLR 371; (1973) LPELR – 2042 (SC) Pp. 57, Per COKER, JSC held as follows: “The overt act which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceaser, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick and Ribuffi (1929) 21 C. App. R. 94. They need not have started all the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of a criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.” Reiterating further in DABOH vs. THE STATE (1977) ALL NLR 146, (1977) LPELR 904 (SC) Pp. 25 – 26, UDO UDOMA, JSC, said as follows and I quote: “It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charged be proved; and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy prove the actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy In the recent decision of the Supreme Court of Nigeria in OKIEMUTE Vs. STATE (Supra), the apex Court still repeated the above position when the Court held as follows again:”Proof of conspiracy is either by direct evidence of how the conspiracy came about or by inference from certain criminal acts or omissions of the parties concerned, done in pursuance of an apparent criminal purpose common to them. Conspiracy can hardly by direct evidence since plotting is done secretly being a meeting of the minds. In proof of conspiracy, the act or omissions of the conspirators in furtherance of the common desire may be and is often given in evidence against another of the conspirators” See also: OZAKI vs. STATE (1990) 1 NWLR (pt. 124) 92, ONYENYE vs. STATE (2012) 15 NWLR (pt. 1324)596 and BALOGUN vs. A. G. OGUN STATE (2002) 6 NWLR (pt. 763) 512. PER TIJJANI ABUBAKAR, J.C.A

Justice

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

ROSULU IDOWU RONKEAppellant(s)

AND

FEDERAL REPUBLIC OF NIGERIARespondent(s)

TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Lagos State High Court, Ikeja Division delivered on the 21st day of December 2015 by L. B. Lawal- Akapo J. in Charge No: ID/1003C/20I4. The charge against the Appellant was brought by way of information dated the 3rd day of November, 2014. The Appellant was arraigned on the 11th day of March, 2015 on a two count charge bordering on Conspiracy and Obtaining Money by false pretenses. The Appellant pleaded not guilty.

Just by way of brief summary, the Appellant Rosulu Idowu Ronke, along with other Defendants with intent to defraud conspired to obtain money by false pretenses from One Lt General Ishaya Rizi Bamaiyi who was standing trial before the Lagos State High Court. The Defendants were said to have obtained the sum of ($330,000;00) from Bamaiyi to engage Counsel for him and facilitate his release from detention. There was protracted delay in the prosecution of the defendants, the Appellant therefore opted to be tried alone.

At the trial, the Prosecution called six witnesses while the Defendant called two witnesses. At the

conclusion of trial, the parties filed and exchanged Written Addresses and the trial Judge in the Judgment delivered on the 21st day of December, 2015 found the Appellant guilty as charged, convicted and sentenced her to ten years’ imprisonment on each of the two counts without the option of fine. The Appellant became aggrieved by the Judgment and therefore filed a Notice of appeal on the 5th day of February 2016 against the Judgment of the lower Court. The Notice of Appeal which contains twelve grounds of appeal is at pages 290 – 300 of the record of appeal. The said grounds of appeal less their respective particulars are reproduced as follows:
1. The learned trial Judge erred in law by holding that the Prosecution had established beyond reasonable doubt against the Appellant the offence of conspiracy to obtain money by false pretense contrary Section 8(a) and 1(3) of the Advance Fee Fraud and Other Related Offences Act No. 13 of 1995 as amended by Act No. 62 of 1999 as laid in the three count information preferred against the Appellant by virtue of the evidence of PW2 and Exhibit P5 when the nature and quality of the evidence of PW2 and Exhibit P5 did

not reveal beyond reasonable doubt the ingredients of the offence of conspiracy as laid out in count one of the three count information and thereby came to a decision occasioning miscarriage of Justice.
2. The learned trial Judge erred in law by treating or regarding Exhibit P5 written by Chief Fred Ajudua to the Chief Judge of the High Court of Lagos State requesting for the transfer of his case in charge No. ID/41c/2003 to wit: F.R.N. v. Fred Ajudua, which was then pending before Hon. Justice J.O. Oyewole to another Judge of he High Court of Lagos State on ground of likelihood of bias which was found in the residence of the Appellant when the Appellant’s house was searched by the operatives of the Economic and Financial Crimes Commission as constituting evidence of conspiracy between Appellant and the said Fred Ajudua when:
3. The learned trial Judge erred in law by believing the evidence of PW2 to the effect that the Appellant visited the Maximum Security Prisons, Kirikiri, Apapa Lagos on three occasions in the year 2014 when the prosecution did not produce any credible and reliable proof of the alleged visits of the Appellant to the said Maximum

Security Prisons, Kirikiri, Apapa Lagos and thereby came to a conclusion which occasion miscarriage of Justice.
4. Having held that the evidence of PW1 lacks probative value on the ground that PW1 may be said to have an interest to serve, the learned trial Judge erred in law by holding that the Prosecution had established beyond reasonable doubt that the Appellant obtained the sum of three hundred and thirty thousand U.S. Dollars by false pretense from PW1.
5. The learned trial Judge erred in law by treating the evidence of PW2 to the effect that the Appellant visited the Maximum Security prisons, Apapa, Lagos as uncontradicted and in acting on the said evidence of PW2 in coming to the decision that the prosecution had established its case against the Appellant when:
1. The Appellant gave evidence denying ever visiting the Maximum Security prisons, Kirikiri, Apapa, Lagos at any time and
2. DW1 gave uncontradicted evidence of the procedure for visiting any inmate at the Maximum Security prisons, Kirikiri, Apapa, and thereby came to the conclusion occasioning miscarriage of Justice.
6. Having held that the evidence of PW2 lacks probative value

on the ground that PW1, may have a purpose to serve, the learned trial Judge erred in law when he held as follows:
“From the evidence of 1st & 2nd P.W. the accused person induced the 1st P.W to part with the said sum and the 1st P.W. did part with the money” and thereby came to a conclusion occasioning miscarriage of Justice.
7. The learned trial Judge erred in law in admitting Exhibit P8, the report of the Polygraph examination conducted by PW5 and PW6 on the Appellant in the office of the Economic and Financial Crimes Commission when Polygraphy examination report is not admissible under the provisions of the Evidence Act, 2011 or any other law governing the admissibility of evidence in Nigeria.
8. ALTERNATIVELY to ground seven, the learned trial Judge erred in law by relying on the evidence of PW5 and PW6 together with Exhibit P5 to come to the conclusion that the representation made by the Appellant are deceptions and thereby came to the conclusion occasioning miscarriage of Justice.
9. The learned trial Judge erred in law in admitting and acting on the oral evidence of PW2 to come to the conclusion that the Appellant visited

pw1 and Chief Fred Ajudua at the Maximum Security Prisons, Kirikiri, Apapa Lagos on three occasions in year 2004 when both PW1 and Chief Fred Ajudua were inmates in the said Maximum Security Prisons, Kirikiri, Apapa, Lagos and thereby came to the conclusion occasioning miscarriage of Justice.
10. The learned trial Judge erred in law by holding that the Prosecution had established beyond reasonable doubt that the Appellant visited retired Lt General Ishaya Rizi Bamaiyi at the Maximum Security prisons, Kirikiri, Apapa Lagos in year 2005 and obtained by false pretenses the sum of three hundred and thirty thousand U. S. Dollars from the said retired Lt. General Ishaya Rizi Bamaiyi during the Appellant’s visits to the Maximum security Prisons, Kirikiri, Apapa Lagos because the Appellant failed to adduce evidence as to where she was on the days the Appellant was said to have visited retired Lt. General Ishaya Rizi Bamaiyi at the Maximum Security Prisons, Kirikiri, Apapa Lagos in year 2005 when the Prosecution had not discharged the burden of proving Rizi Bamaiyi at the Maximum security prisons, Kirikiri Apapa, Lagos and collected the said sum of money from

him and thereby came to a conclusion occasioning miscarriage of Justice.
11. The learned trial Judge erred in law by holding that the Appellant collected the sum of three hundred and thirty thousand U. S. Dollars from retired Lt. General Ishaya Rizi Bamaiyi inside the Maximum Security Prisons, Kirikiri, Apapa Lagos by false pretense in year 2005 without evaluating the evidence of Mr. Ubi a senior official of the Nigerian prisons service to the effect that no inmate is allowed by prison Rules and Regulations to bring in either by himself or through his agent dollars into the prison and that there is no official record showing that at all times material retired Gen, Ishaya Rizi Bamaiyi brought Dollars or caused dollars to be brought to him in the Maximum security prisons, Kirikiri, Apapa, Lagos and thereby came to a perverse conclusion occasioning miscarriage of Justice.
12. The judgment is unwarranted and unreasonable having regard to the totality of the evidence before the trial Court.

The Appellant, on 22nd November, 2016 filed two additional grounds of appeal less their respective particulars also read as follows:

1. The Learned

Trial Judge seriously erred in law in assuming jurisdiction in respect of this case where it was manifestly clear that the transaction that gave rise to the alleged offence was ex-facie illegal thereby occasioning miscarriage of Justice.
2. The Learned Trial Judge erred in law when he failed to dismiss the charge and discharge and acquit the Appellant on the grounds that the charge especially count 2 thereof is incurably bad for ambiguity.

The Appellant’s Brief of Argument was filed on the 23rd day of September, 2016 by learned Counsel J.K Mbanefo Ikwegbu Esq. The Appellant also filed a Reply Brief on the 17th day of November, 2016. The Respondent’s Brief of Argument was filed through learned Counsel S.K. Atteh Esq. on the 9th day of October 2016.

In the Appellants brief of argument, three issues for determination were distilled and submitted to this Court, the issues are reproduced as follows:
1. Whether the trial Court had the jurisdiction to try this case when it was clear that the transaction that gave rise to the alleged offences were ex-facie illegal? (Ground one of the additional grounds of appeal)
2. Whether the charge

upon which the appellant was tried is not incurably bad for ambiguity and if the answer is in the affirmative, whether the Honorable Court ought not to have dismissed the charge and then discharge and acquit the appellant. (Ground 2 of the Additional grounds of appeal)
3. Whether from the totality of evidence before the honorable trial Court especially noting, the presumption of innocence constitutionally ascribed to an accused person, the honorable trial Court ought not to have discharged and acquitted the appellant as there is no sufficient credible evidence on which to safely convict (Grounds 1-11) of the original ground of appeal).

The Respondents on the other hand distilled the following four issues for determination:
1. Whether the lower Court lacked jurisdiction to try the appellant for offence relating to Obtaining money by false pretence merely because the victim of the crime purportedly contravened a law/regulation while parting with the money to the appellant (This is based on ground one of Additional grounds of Appeal, filed on the 19th of September, 2016).
2. Whether the count two of the information for which the appellant

was convicted was incurably bad for ambiguity (This issue is based on ground two of proposed additional grounds of Appeal, filed on the 19th of September, 2016)
3. Whether the appellant properly raised the defence of alibi which would have entitled it to an acquittal (This issue is based on grounds 5, 9 and 10 of the ground of Appeal, filed on the 5th of February, 2016).
4. Whether the conviction of the appellant was based on credible evidence at the trial Court (This issue is based on grounds 1, 2, 3, 4, 6, 7, 8, 11 and 12 of the ground of Appeal, filed on the 5th of February, 2016).

SUBMISSIONS OF COUNSEL
Issue number One, is whether the trial Court had jurisdiction to try this case when it was clear the transaction that gave rise to the alleged offences was ex-facie illegal. Submitting on this Issue, learned counsel for the Appellant referred to Sections 3 and 4 of the Prisons Regulations made pursuant to the Prisons Act and the testimony of PW 2 contained at page 137 of the record of appeal to argue that, by law and as a matter of practice, all items including cash going into the prison are duly recorded in a register meant for that

purpose. He argued further that all visitors to the prisons and the name of the detainee they have come to visit are duly recorded in a register meant for that purpose. Learned counsel referred to Section 1 of the Money Laundering (Prohibition) Act, Cap M18, LFN 2004 and the legal maxim ex turpi causa non oritur actio – no action arises from a wrongful consideration, to submit that there is no proof whatsoever in evidence before the Court that the alleged sum of three hundred and thirty thousand U. S. Dollars which is above five hundred thousand naira passed through a bank or any financial institution and that the whole transaction is illegal and the lower Court therefore erred in law in lending judicial credit and weight to an illegal transaction.

Learned counsel said the fact that there is no evidence that the transaction was made through a financial institution is conclusive proof of the fact that the sum never existed. Learned Counsel for the Appellant also submitted that there is no evidence on record at the prison that shows that such sum was ever in the prison as mandated by Sections 3 and 4 of the Prisons Regulations. Learned counsel for the

Appellant then referred to Sections 21 and 24 Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, CAP F35, LFN 2004 (formerly known as Decree No. 17 1995) to further submit that there was no evidence before the trial Court or investigation to show the source of the money or where the money was changed either from the Bank or Bureau de change as required by law and whether General Bamaiyi is allowed to be in possession of that volume of money in US dollars within the prison.

Learned counsel submitted that the lower Court erred grossly in assuming jurisdiction over the matter when it ought to have rightly declined jurisdiction. He argued that any action of a Court of law in excess of its jurisdiction is a nullity. Learned counsel urged this Court to hold that the lower Court acted ultra vires its jurisdiction consequent upon which the action of the lower Court in entertaining the charge against the Appellant is a nullity. Counsel urged this Court to resolve issue 1 in the negative.

Appellants issue number two is “Whether the charge upon which the Appellant was tried is not incurably bad for ambiguity and if the answer is in the

affirmative, whether the Honorable Court ought not to have dismissed the charge and then discharge and acquit the Appellant. Learned counsel for the Appellant referred to the 2-count charge against the Appellant at page 2 of the record of appeal to which the Appellant pleaded not guilty. Learned counsel argued that there is no provision of the prison regulations which guides the release of detainees from prison that provides for the facilitation of the release of detainees from custody. Learned counsel contended that none of the testimonies of the prosecution witnesses provided any guidance as to the meaning of the phrase “facilitate his (General Bamaiyi) from prison custody” used in the charge against the Appellant. Counsel argued that a charge is bad for ambiguity when it is unclear enough as to provide sufficient particulars of the alleged offence so as to give the accused sufficient notice of the charge against him.

Learned counsel referred to CLEMENT ISONG vs. A.G. (Fed) (Citation not provided by learned Counsel for the Appellant) and OKEKE Vs. STATE (1965) 2 All NLR 81 to submit that although it is desirable that objection to ambiguity be

taken early in the trial process, ambiguity in a charge is fundamental and nullifies the entire charge. Counsel contended that there are no further particulars in the particulars of offence contained in the count as to provide guidance on what the charge against the Appellant meant. Learned counsel for the Appellant submitted that the Court erred in Law in finding and holding that the accused is guilty as charged instead of dismissing the charge on grounds of being ambiguous and unsubstantiated by material evidence. Counsel urged this Court to resolve issue 2 in the affirmative.

Appellant’s third issue for determination is “Whether from the totality of the evidence before the Honorable Trail Court, especially noting the presumption of innocence constitutionally ascribed to an accused person, the Honorable Trial Court ought not to have discharged and acquitted the Appellant as there is no sufficient evidence on which to safely convict.
Learned counsel for the Appellant relied on the decision in MUSA vs. STATE (2005) Vol. 40 WRN 1-94 Pg. 58 lines 25 – 40 to contend that in proof of a charge of conspiracy, it is the acts or omissions of any

of the conspirators that is often given in evidence against the conspirators. He further argued that it is from the evidence of complicity in the offence charged that conspiracy may be inferred by the Court, learned Counsel for the Appellant submitted that conspiracy is inferred from the facts and circumstances of a particular case relying on the decision in ABACHA Vs. STATE [2001] 3 NWLR (Pt. 699) 35 and NWOSU Vs. STATE [2004] 15 NWLR (Pt. 897) 466 at 485, Counsel further submitted that conspiracy is not established by proving where and when the parties met to hatch the crime, it is inferred from the facts and circumstances of the particular case.

Learned counsel argued that the inference to be drawn from the circumstances of the case and which the prosecution must prove include consensus ad idem between the Appellant, and other alleged conspirators and that the testimony of DW1 to the effect that it is not possible for a visitor to come into the Kirikiri Prisons without a record. Learned counsel submitted that from the totality of evidence adduced and the facts presented at the trial Court, the Prosecution failed to prove beyond reasonable doubt

through documentary evidence or record of visitors that the Appellant ever visited Kirikiri Maximum Prisons to meet Chief Fred Ajudua and others at large for the purpose of obtaining money under the false pretense from the nominal complainant, General Bamaiyi purportedly for the purpose of securing and paying the legal fees of Afe Babalola, SAN.

Learned counsel referred to the testimony of DW1 and the admission by PW2 that there was no record of the three hundred and thirty thousand Dollars which was alleged to be brought to the Kirikiri Maximum Prisons on the 20th day of November and given to the Appellant and one Jonathan. Learned counsel referred to OKPOGODIE Vs. COP EDO STATE COMMAND [2004] FWLR (Pt. 192) 86 at 95 CA to argue that PW2 is a tainted witness who has vested interest in the matter and as such his testimony should have little or no probative value and that the conclusion reached by the Learned Trial Judge upon reliance on the testimonies of PW1 and PW2 led to a serious miscarriage of Justice. Counsel submitted that the Prosecution failed to discharge the onus of proof placed on it by Section 138 of the Evidence Act, 2011 and Section 36

(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which requires the Prosecution to prove that there is consensus ad idem between the Appellant, Fred Ajudua and others at large to obtain the sum of three hundred and thirty thousand US Dollars by false pretense.

Learned counsel argued that the evidence of PW3 only established that the case was not properly investigated and that the Appellant who was alleged to have gone to the prison with Appellant was not even invited to make a statement. Counsel argued further that the evidence of PW5 and PW6 together with their polygraph report have no evidential value. Learned Counsel for the Appellant submitted that whether or not the Appellant was telling the truth is not what a mechanical device would show, but a proper investigation. Learned counsel referred to AUGUSTINE ONUCHUKWU & 2 ORS vs. THE STATE [1998] 4 NWLR (pt. 547) page 590, and MORKA Vs. THE STATE [1967] 9-10 SC 305 at 325 to submit that where there are contradictions and inconsistencies in the evidence before a Court such as to cast a reasonable doubt upon the guilt of the accused person, such accused person should be

given the benefit of the doubt and not be convicted on the basis of such unreliable evidence. He submitted further that in view of the contradictions and inconsistencies in the evidence of PW5, PW6, PW2 and PW1, the trial Judge ought to have discharged and acquitted the Appellant.

Learned counsel for the Appellant referred to ODILI Vs. STATE [1997] 4 SC 1, ONAFOWOKAN vs. STATE [1987] 13 NWLR (pt. 67) 538 and ONUCHUKWU vs. STATE [1998] 4 NWLR (pt. 547) and submitted that, on the issue of Alibi, the trial Court failed to take the position of the law that once the Defence of Alibi is put up by the Defendant, it is for the investigator to properly investigate the defence of Alibi and that failure to do so could raise reasonable doubt in the mind of the Court and can lead to quashing the conviction. He submitted that the Appellant consistently maintained that she was not at the Kirikiri Maximum prisons on the 20th of November 2004 as alleged and that the records of the prisons confirm her position. Learned counsel further referred to ABACHA Vs. THE STATE [2002] 7 SC and OHWOVORIOLE SAN vs. FRN & ORS 13 NSCQR pg. 1 ratio 9 to submit that suspicion however

well placed does not amount to prima facie evidence and cannot ground conviction of the Appellant.

Learned counsel referred to OSMUND ONUOHA & ORS Vs. STATE [1998] 5 NWLR (Pt. 548) 118 at 134 – 135 to contend that the failure of the Economic and Financial Crimes Commission to conduct identification parade is fatal to the Prosecution’s case in the face of the Appellant’s claim that she never met PW2. He argued that PW2 also admitted in evidence that he met the Appellant in 2000 and then again on the 19th day of December, 2013. Learned counsel submitted that EFCC ought to have conducted an identification parade to know if PW2 would be able to identify the Appellant. Learned counsel further referred to FOLARIN vs. STATE [1995] 1 WLR (Pt. 139) and ALIYU vs. STATE [2000] FWLR (pt. 131) 2004 ratio 10 to submit that the Prosecution clearly failed to discharge the onus of proving its case against the Appellant beyond reasonable doubt as required by law.

Learned counsel referred to pages 11 and 18 – 21 of the record of appeal to submit that the import of the statement of the nominal complainant, General Bamaiyi is that part of the alleged

sum of money, whose source is undisclosed, was intended to be given to Justice Oyewole, while some were to be given to Afe Babalola SAN to arrange and secure his release from prison. He submitted that the implication of the complaint is that the alleged transaction is illegal since the alleged sum could possibly not have been possessed by General Bamaiyi. Learned Counsel submitted that it is either such money never existed or that the petition was written to blackmail the judiciary especially the Learned Trial Judge. Learned counsel referred to AMALI Vs. COP [2000] FWLR (Pt. 2) 329 CA to submit that criminal trials of this nature could be a nullity where the foundation charge or information is null and void because the alleged transaction that gave rise to the alleged crime is ex facie illegal and as such, the trial Court ought to decline jurisdiction.

Learned counsel urged this Court to quash both the plea taken and the entire proceedings including the conviction and sentence on the ground that the Prosecution failed to prove the vital ingredients of the alleged offence of obtaining money by false pretense and that there was no evidence at the trial

Court to show that such money ever existed or could be owned by General Bamaiyi. Learned counsel further urged this Court to hold that the trial Court erred in assuming jurisdiction over the case which subsequently resulted in the conviction of the Appellant.

The Respondent on the other hand submitted four issues for determination as I indicated earlier in this judgment. Learned counsel for the Respondent while submitting on the first issue referred to A.G FEDERATION Vs. ABIA STATE & 35 ORS [2001] 7 SC (Pt. 1) 100, MADUKOLU Vs. NKEMDILIM [1962] 11 All NLR 587, DANGANA & ANOR Vs. USMAN & 4 ORS (2012) 2 SC (Pt III) 103, and N.U.R.T.W & ANOR Vs. R.T.E.A.N. & 5 ORS [2012] 1 SC (Pt. II) 119 to submit that the conditions that must be satisfied before a Court can be said to be competent or claim to have jurisdiction were all present at the lower Court in relation to the instant case and the Appellant did not challenge the jurisdiction of the lower Court on any of these grounds.

Learned counsel for the Respondent argued that the reasons adduced by the Appellant in challenging the jurisdiction of the lower Court which are the fact

that the transaction that gave rise to this case was illegal and that the said sum of three hundred and thirty thousand US Dollars given to the Appellant was not recorded or violated the Prison Regulations does not affect the jurisdiction of the trial Court. He argued that issue of whether or not the money was brought into Kirikiri Prison only goes to evidence and was satisfactorily proved by the testimonies of PW1 at pages 130 – 136 of the record of appeal and that of PW2 at pages 136 – 138 of the record of appeal.

Learned counsel referred to SULE vs. QUEEN (1959) SCNLR 208 to submit that it is no defence that the person defrauded parted with his property in order that it might be put to an unlawful purpose. He argued that the source of the money does not affect the jurisdiction of the trial Court and that where the provisions of the Foreign Exchange (Monitoring and Miscellaneous Provisions) Act, CAP- F35, LFN 2004 have been violated, it does not oust the Jurisdiction of the trial Court. Learned counsel referred to pages 130 – 135 of the record of appeal to submit that the victim, General Bamaiyi gave evidence of how he raised the money which was

brought to Kirikiri Prison and which he gave to the Appellant. Learned counsel for the Respondent urged this Court to hold that the lower Court had jurisdiction to try the Appellant.

Submitting on the second issue, learned counsel for the Respondent said the rule against ambiguity in drafting charges essentially stipulates that all particulars required by the statute creating the offence must be clearly stated in the count to enable the Defendant have good notice of the case against him. Counsel referred to the Appellant’s plea of “not guilty” at page 121 of the record when the charge was read to her. He referred to OLATUNBOSUN vs. STATE [2013] 17 NWLR (pt. 1382) pg. 167 to argue that the Appellant certainly understood the charge very well and that the Appellant’s counsel did not raise any objection to the charge on the ground that it was defective when it was read. Learned counsel referred to The Longman Dictionary of Contemporary English (First Ed. 1979) pg. 390 and submitted that there is nothing ambiguous in Count Two of the charge and that the Appellant was not misled as the count was clear enough that the Appellant obtained the sum of Three

Hundred and Thirty Thousand US Dollars from PW1 on behalf of Chief Afe Babalola SAN whose firm was confirmed by the testimony of PW4 not to have been engaged on behalf of PW1.

Learned counsel for the Respondent further submitted that the issue of ambiguity being raised for the first time on appeal is an afterthought because the Appellant participated in the trial and did not raise the issue of Ambiguity at the trial. Counsel referred to AGBO vs. STATE [2006] QCCR vol. 6 pg. 48; Section 154 & 158 of the Administration of Criminal Justice Law, 2011; OBAKPOLOR Vs. STATE [1991] 1 NWLR (Pt. 165) Pg. 113 and PATIL Vs. FRN [2015] All FWLR (Pt. 775) Pg. 228 to submit that the objection ought to have been raised at the trial Court and that the Appellant had submitted to the jurisdiction of the Court without objection. He further argued that the defect being complained of has not been shown to occasion miscarriage of Justice and that procedural jurisdiction which is distinct from substantive jurisdiction is capable of being waived. Learned counsel for the Respondent observed that it was unfair of the Appellant’s counsel who did not complain about the charge

at the lower Court to have submitted that it was only the Judge that understood the Charge. Counsel referred to ENEKWE Vs. I.M.B (NIG.) LTD [2007] All FWLR (Pt. 349) Pg. 1053 at 1074, Pg. 1075, (SC) and urged this Court to hold that the Appellant was not misled by the word “facilitate’ in Count Two.

Submitting on the third issue, learned counsel for the Respondent said for the defence of Alibi to be worthy of investigation, it must be precise and specific in terms of the place that the accused was and the person(s) she was with and possibly what she was doing there at that material time. He referred to GACHI vs. STATE [1965] NMLR 333, BALOGUN vs. A.G. OGUN STATE [2001] 1 FWLR (Pt. 78) Pg. 1144, IKUEPENIKAN vs. STATE (supra), OCHEMAJE vs. STATE [2008] 15 NWLR (Pt. 1109) 57 and submitted that the investigation is not expected to embark on wild goose chase. Learned counsel further argued that the evidence adduced by Appellant was merely a denial that she did not go to kirikiri Prisons at all without any particulars as to where she was on 23rd October, 2004, 6th November, 2004 and 20th November, 2004. Learned Counsel further submitted that the Appellant

confirmed under cross-examination that she only went to work from Monday to Friday and thus, it naturally follows that Saturday was good opportunity for the Appellant to visit the Kirikiri Maximum Prison.

Learned counsel referred to the findings of the learned trial Judge at page 273 of the record of appeal and the testimony of PW1 and PW2 who gave eye witness accounts which pinned the Appellant to the scene of the crime. He referred to TAYO ADEOSUN & ORS Vs. STATE [2007] QCCR Vol. 11 Pg. 19, IKEMSON & ORO vs. THE STATE [1989] 3 NWLR (pt. 110) 455, ODIDIKA vs. THE STATE 2 SC 21, NJOVENs vs. THE STATE [1973] 5 SC 17 and DAGAYYA vs. STATE [2006] 7 NWLR (pt. 980) 637 and submitted that the Appellant merely denied visiting the Kirikiri Maximum Prison on 23rd October, 2004; 6th November, 2004 and 20th November, 2004 and did not give details of where she was on those days.

Learned counsel for the Respondent while submitting on issue 4 argued that the onus of proof in criminal trials is proof beyond reasonable doubt and not proof beyond any shadow of doubt. Learned counsel referred to NSOFOR VS. STATE [2004] 18 NWLR (pt. 905) 292,305, AKINLOLU vs.

STATE (2015) LPELR – 25986 (SC), SABI vs. STATE [2011] 14 NWLR (Pt. 1268) 421, NJOKWU vs. STATE [2013] 2 NWLR (pt.1339) 548, OSUAGWU vs. STATE [2013] 153 NWLR (pt. 1347) 360 and AJAYI Vs. STATE [2013] 9 NWLR (Pt. 1360) 589 to submit that proof beyond reasonable doubt connotes sufficiency of evidence and that if the evidence is strong against the accused person as to leave only a remote possibility in his favor which can be dismissed, the case has been proved beyond reasonable doubt.

Learned counsel for the Respondent also referred to YONGO Vs. COP [1992] 8 NWLR (PT. 257) 3-6 to submit that the Prosecution established all the essential ingredients of the offence charged. As regards Count One which is conspiracy to obtain money by false pretense, learned counsel referred to the testimony of PW1 at pages 130 – 135 of the records of appeal and argued that the testimony of PW1 shows an agreement by spoken words and conduct between the Appellant, Chief Fred Ajudua and other confederates. Counsel submitted that the testimony of PW1 was corroborated by pW2, an Assistant Comptroller of Prison who testified as an eye witness. Learned counsel also referred to

the testimony of PW4, a Senior Advocate of Nigeria from the Chambers of Afe Babalola & Co., Mr. Adebayo Adenipekun SAN at pages 142 – 143 of the Records of Appeal which was to the effect that the law firm was neither contacted nor paid to handle any brief involving PW1.

Learned counsel submitted that these testimonies were not successfully challenged by the Appellant under cross-examination. Counsel referred to OBIAKOR vs. STATE [2002] 6 SC (pt. 11) 33 at 39 – 40, ODUNEYE vs. STATE [2001] 1 SC (pt. 1) 1 at 6 -7, NJOVENS & ORS vs. THE STATE [1973] 8 NSCC pg. 257, OGEDENGBE vs. STATE [2014] All FWLR (Pt. 752) Pg. 1725 at 1741 to submit that the decision reached by the Learned trial Judge cannot be faulted in view of the fact that the Learned trial Judge rightly made an inference from all the available pieces of evidence. Learned counsel further referred to OBIDIKE vs. STATE [2014] All FWLR (Pt. 733) Pg. 1899, OGEDENGBE vs. STATE (supra), EFFIONG vs. STATE [1998] 8 NWLR (pt. 562) 362 and ALI vs. STATE [1988] 1 NWLR (Pt. 68) 1 to submit that a host of witnesses are not required by the Prosecution and that a single witness who gives cogent eye-witness

account can sustain a charge. Counsel urged this Court to uphold the decision of the lower Court and dismiss the Appellant’s appeal.

Learned counsel for the Respondent referred to ONWUDIWE Vs. F.R.N [2006] QCCR Vol. 8 Pg. 99 at 142 and ALAKE vs. THE STATE [1991] 7 NWLR (Pt. 205) Pg. 567, OFORLETE vs. STATE [2000] 12 NWLR (pt. 681) Pg. 451 and urged this Court to accept the contention by the Respondent that there was false representation made on PW1. Counsel argued that the testimonies show that the Appellant made false pretense orally and by conduct. He relied on ONUOHA vs. STATE [1989] 2 NWLR (Pt. 101) Pg. 23 at 34 and the findings of the Learned Trial Judge at page 265 of the record of appeal to argue that PW1 and PW2 are credible witnesses who were not shown to have any interest to serve other than the interest of Justice.

Learned counsel further referred to UKEJE vs. UKEJE (2014) All FWLR (Pt. 730) Pg. 1323 sc, KIMDEY vs. MILITARY GOVERNOR OF GONGOLA STATE [1988] 2 NWLR (Pt. 77) Pg. 445 and OMOREGBE Vs. LAWANI (1980) 3-4 SC 108 to submit that Exhibit P1 which was made by PW1 on 20th November, 2004 before the commencement or contemplation of

the proceedings at the lower Court supports the oral testimonies of PW1 and PW2 that the Appellant was given the sum of three hundred and thirty thousand US Dollars by PW1 on 20th November, 2014. Learned counsel submitted that the evidence adduced by the Respondent at the trial Court against the Appellant is overwhelming. He urged this Court to hold that the conviction of the Appellant was based on credible evidence.

On the Appellant’s contention that there was contradiction between the evidence of PW2 and DW1, learned counsel for the Respondent referred to the findings of the lower Court at pages 265 – 276 of the record of appeal and submitted that there was no contradiction between the evidence of PW2 and DW1. Learned counsel also submitted that the identity of the Appellant was never in question. He referred to pages 276 – 277 of the record of appeal to contend that identification parade is not necessary where the witness had ample opportunity to identify the accused. With regards to the evidence of PW5 and PW6 who testified as polygraph experts, learned counsel for the Respondent referred to the findings of the lower Court at pages 279 – 280 of the

record of appeal and submitted that their testimony can only be rebutted by the testimony of another expert. Learned counsel for the Respondent finally urged this Court to dismiss the Appellant’s appeal and affirm the Judgment of the lower Court.

In reply to the Respondent’s submissions, learned counsel for the Appellant referred to MADUKOLU Vs. NKEMDILIM (Supra) to argue that the Charge was not initiated by the due process of law. He contended that there was no investigation whatsoever to any known source of the money or whether such money ever existed at all. Learned counsel referred to Section 137 of the Evidence Act and submitted that the lower Court is robbed of jurisdiction to try the Appellant.

Learned counsel argued that the case of SULE vs. QUEEN (1959) SCNLR 208 was cited out of con by the Respondent, as the issue in the instant case is that there was no investigation to show whether there was existence of the said sum of three hundred and thirty thousand US Dollars that could have been parted with by PW1. Counsel submitted that the failure to investigate the source and purpose of the money robs the lower Court of jurisdiction. He

referred to AZEEZ & ORS vs. STATE [2006] All FWLR (Pt. 337) Pg. 485 at 459 – 456; 498 – 499 (CA) to submit that the Court cannot act on speculations. Counsel also referred to OTUNBA F.E. SOWEMIMO & ORS vs. STATE [2001] FWLR (pt. 79) pg. 1269 at 1310 C.A and ONUOHA Vs. STATE [1989] 2 NWLR to submit that PW2 can best be described as a tainted witness in that he breached prison Rules and that PW1 also had an interest to serve, as such, his testimony cannot be regarded as that of a credible witness. Learned Counsel urged this Court to so hold.

Learned counsel for the Appellant also submitted that the failure to invite one Mr. Kehinde, a staff of the Nigerian Prisons Service mentioned in the testimony of PW2 shows that no investigation was carried out by the Economic and Financial Crimes Commission. Learned Counsel referred to OSHODIN Vs. THE STATE [2002] FWLR (Pt. 90) pg. 1336 at 1347 C.A to submit that where a material witness is not called, there is a presumption that his evidence will not be favorable to their case. Learned counsel further argued that the evidence of DW2 shows that it was impracticable for one to visit the prisons without a record

to show for it and for a prisoner to come in with such huge amount of money.

Learned counsel also submitted that the issue of jurisdiction can be raised at anytime, the Appellant may first raise the issue of ambiguity of the Charge in the Court of Appeal or even at the Supreme Court. Counsel urged this Court to discharge the Appellant on the ground that the trial Court erred in law in convicting the accused person based on an ambiguous charge. Learned counsel for the Appellant also argued and urged this Court to hold that that the Respondent has impliedly conceded to the Appellant’s submission that there was no proper investigation as to the source and purpose of the money and that the information obtained from communication companies showing that the Appellant called PW1 or Fred Ajudua was not disclosed.

The learned Counsel for the Appellant also contended that the Respondent’s Brief of argument failed to comply with Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007 which is to the effect that Processes must bear the stamp of the legal practitioner who signed it.

Counsel referred to ALL PROGRESSIVE CONGRESS

(APC) vs. GENERAL BELLO SARKIN YAKI No.SC/722/15 and DR. OKEZIE IKPEAZU vs. DR. UCHE OGAH (2016) CA to argue that the Respondent’s Brief is rendered useless by failing to tick the name of the person who signed the said Brief though it bears the stamp of one Ihenacho Ekele Enyinnaya. On the whole, learned counsel for the Appellant urged this Court to set aside the judgment of the lower Court herein appealed against and to discharge and acquit the Appellant.

RESOLUTION
The first issue to resolve in this appeal borders on the question as to Whether the trial Court had the jurisdiction to try this case when it was clear that the transaction that gave rise to the alleged offences were ex-facie illegal? The Appellant is challenging the jurisdiction of the lower Court on the ground that the transaction that gave rise to this case was illegal and that the said sum of three hundred and thirty thousand US Dollars that formed the center-piece of the case against the appellant was not recorded in accordance with Sections 3 and 4 of the Prisons Regulations, and therefore violated Section 1 of the Money Laundering (Prohibition) Act, Cap M18, LFN 2004.

The Respondent on the other hand argued that the source of the money does not affect the jurisdiction of the trial Court and that where the provisions of the Foreign Exchange (Monitoring and Miscellaneous provisions) Act, CAP F35, LFN 2004 have been violated, the violation cannot oust the Jurisdiction of the Court.

The question of jurisdiction is fundamental and its absence strikes at the root and tap-roots of every trial. It is desirable that issue of jurisdiction be raised timeously at the earliest opportunity, where that is not done, it may be raised for the first time even on appeal in this Court or the Supreme Court. Any proceedings conducted without the requisite jurisdiction amounts to a nullity however well and brilliantly conducted and decided, this is the law in seemingly endless decisions. See: ANYANWU vs. OGUNEWE & ORS (2014) LPELR-22184 (SC) Pg. 31-32, AGU & ANOR vs. COP (2016) LPELR-40026 (CA) Pg. 12, and ONI vs. CADBURY NIGERIA PLC (2016) LPELR-26061 (SC) pg.29.

The law is settled on when a Court is competent to exercise jursdiction over a matter. The Supreme Court in MADUKOLU vs. NKEMDILIM 1962 All NLR (PART 4) 587 (2001)

46 WRN 1 held that:
A Court is competent when;
(a) it is properly constituted as regards number and qualification of the members of the bench and no member is disqualified for one reason or another.
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction and
(c) the case came before the Court initiated by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
The above stated conditions have been restated in a long line of cases and more recently in SPDC & ORS vs. AGBARA & ORS (2015) LPELR-25987 (SC) Pg. 28, CBN vs. UBANA & ORS (2016) LPELR-40366 (CA) Pg. 9-10, and ONI Vs. CADBURY NIGERIA PLC {supra) at pg. 29-30, where OGUNBIYI, JSC held as follows and I quote:
“The issue of jurisdiction is constitutional and cannot be conferred on the Court either by itself or by the consent of the parties/counsel themselves. It is needless to say also that it cannot be partially conferred but must be either total or none at all. In other words, the conditions or

criteria stipulated in the principles laid down in the case of Madukolu v. Nkemdilim (supra) must all co-exist in totality for the Court to be properly constituted.

In the instant appeal, there is no challenge to the qualification of the trial judge, neither is there a question as to the subject matter of the case being within the jurisdiction of the lower Court. The contention of the Appellant herein is that the legality of a transaction is a condition precedent to the exercise of jurisdiction by the lower Court. It is my considered view that the contention of the Appellant on this issue is misconceived and does not represent the correct position of the applicable law. Contrary to the erroneous contention of the learned Counsel for the Appellant herein, the relevant question as to whether the money allegedly stolen or fraudulently obtained was recorded in compliance with the Prisons regulations can only be determined by the trial Court upon assumption of jurisdiction. As rightly submitted by learned counsel for the Respondent, the Jurisdiction of a Court cannot be ousted on the ground that the provisions of the Foreign Exchange (Monitoring

and Miscellaneous Provisions) Act, CAP F35, LFN 2004 have been violated, it needs to be pointed out here that the alleged violation of the Foreign Exchange Monitoring and Miscellaneous Provisions) Act (Supra) has not been established by a positive finding by an appropriate and competent Court of law.
The Appellant cannot flush illegality of the money collected by her from her victim PW1 to escape prosecution. The Appellant’s Counsel consistently maintained that the entire transaction is illegal having offended the ancient legal principle “ex turpi causa, non oritur actio”. I think learned Counsel for the Appellant in this appeal entirely misconceived the principle, the ancient principle is mainly founded on enforcement of performance of an agreement, when the agreement or transaction upon which a Claimant seeks to establish his claim is ex- facie illegal or contrary to public interest. This principle is mainly with respect to illegal contracts and the consequence of illegality in relation to the enforcement of the agreement by the parties. The simple position is that no Court will lend its aid to a man who founds his claim or cause of action upon an

illegal or immoral act, see: GORDON Vs. METROPOLITAN COMMISSIONER (1910) 2 K.B 100 at 1098. The case of the Appellant is that of receiving money by false pretenses, it is an allegation of crime. The grievance of her victim is not premised on breach of contract but predicated on allegations of crime against the Appellant. The Appellant caused her victim to believe in her supposed ability to engage best hands for his legal defense and sort out (facilitate) his exit from incarceration, she was able to set up an attractive make-belief trap for him, her victim PW1 was hoodwinked. Having deluded PW1 she certainly cannot turn round to allege illegality of source of funds to shield herself against prosecution, it will offend public policy, interest of Justice, and good conscience to accept her faulty submissions on jurisdiction and follow her path. Appellants resort to challenging the legality of source of funds of PW1 cannot serve as immunity for the Appellant against prosecution. Challenge to the jurisdiction of the trial Court is a tacit attempt by the Appellant to raise immunity against prosecution, this certainly has no place in law, and accepting it by the

Courts will portend danger to the society and open a flood-gate for frivolous and vexatious objections thereby stultifying trials in our Courts.
Above all, the Appellant is not in the position to determine the illegality of the said money owned by PW1 or criminality of PW1 in owning or being in possession of such amount; this is the duty of a Court of competent jurisdiction which can only be determined when the Court is seized of the case and it cannot be a ground for the trial Court to decline jurisdiction to entertain and hear the criminal charge against the Appellant in the instant Case. In EMIRATE AIRLINES Vs. FRN & ORS (2014) LPELR-24135 (CA) Pg. 40-41, this Court held that:
“until a person is tried and proved guilty of an offence by a Court of competent jurisdiction it will amount to in Justice and malafide to smear him with the stinking mud of criminality or illegality, I must add here that I agree with the submission of learned counsel for the 1st Respondent that even if the said prince Orji is convicted of an offence under the money Laundering Act or any other law, it does not lie with anybody to divert or convert the sum of money

involved to his own personal use because it will definitely fall under the scope of the offence of stealing. There is certainty no immunity from prosecution for the offence of stealing the proceeds of a crime all in the guise or anticipated defence that it is a product of criminality or illegality. The issue of abuse of process does not therefore arise in the instant case and I so hold. In this regard, I resolve this issue against the appellant.”

In the light of all I said therefore, I hereby hold that the learned trial Judge rightly assumed jurisdiction in the instant case, issue No. 1 is therefore resolved against the Appellant and in favor of the Respondent.

The second issue for determination is ” whether the charge upon which the appellant was tried is not incurably bad for ambiguity and if the answer is in the affirmative, whether the Honorable Court ought not to have dismissed the charge and then discharge and acquit the appellant.”

The Appellant’s contention is that there are no further particulars in the particulars of offence contained in count 2 as to provide sufficient guidance on what the charge against the Appellant

means and that the Court erred in Law in finding and holding that the accused is guilty as charged instead of dismissing the charge on grounds of ambiguity and unsubstantiated evidence. The Respondent on the other hand argued that the Appellant clearly understood the charge and that the Appellant’s counsel did not raise any objection to the charge on the ground that it was defective when it was read to her and she pleaded not guilty. Respondent argued further that the Appellant had submitted to the jurisdiction of the Court without objection; that the objection ought to have been raised at the trial Court and that the defect being complained of has not been shown to occasion miscarriage of Justice. The Appellant’s reply is that the Appellant can raise the issue of ambiguity of the Charge in the Court of Appeal or even at the Supreme Court for the first time.

In ODEH vs. FRN (2008) Vol. 5 M.J.S.C 1 at 15 paras. D – E, the Supreme Court defined the purpose a charge should serve in criminal proceedings. Musdapher JSC (later CJN) held as follows: The main purpose of a charge is to give the accused person notice of the case against him. See: Faro v.

IGP (1964) 1 ALL NLR 6.” From this therefore, it may be said that, the purpose of a charge is to give the accused person reasonable notice of the allegations against him, to enable him conceive whatever defense he thinks he has against the charge and proceed to commence his preparation in defence. See: OLAYINKA FARO Vs. IGP (1964) 1 All NLR 6. The learned Counsel for the Appellant also submitted that the charge Count 2 against the Appellant is bad for ambiguity, it therefore means the charge contains or has the quality of having more than one meaning, or it is capable of being understood in more than one sense. The New Webster Dictionary of the English Language (International Edition) gives the meaning of “ambiguity” as the “quality of having more than one meaning, an idea, statement or expression capable of being understood in more than one sense I also had recourse to dictionary.com, where I again saw the meaning of “ambiguity” as “doubtfulness or uncertainty of meaning or intention, an unclear, indefinite or equivocal word or expression, meaning etc.. The Black’s Law Dictionary Eighth Edition page 88 also defines “ambiguity” as “an

uncertainty of meaning or intention.
The question therefore is whether Count 2 of the Charge against the Appellant in the instant case fulfilled the purpose of informing or giving notice to the Appellant of the case against her, or that there is obvious uncertainty of meaning or intention decipherable from reading the charge. The pivot of appellant’s grievance under this issue is therefore count two of the charge. I will reproduce Count two of the Charge and the particulars as contained at pages 2 – 3 of the Records of Appeal:
STATEMENT OF OFFENCE 2nd COUNT
Obtaining money by false pretenses contrary to Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, No. 13 of 1995 as amended by Act No. 62 of 1999.
PARTICULARS OF OFFENCE
Rosulu Idowu Oluronke, Fred Chijindu Ajudua, Alumile Adedeji a.k.a Ade Bendel, (still at large) one Mr. Jonathan, still at large) one Mr. Kenneth, (still at large) Princess Hamabon William, (still at large) and others still at large, on or about 20th November, 2004 at Lagos within the jurisdiction of this Court, with intent to defraud, obtained the sum of $330,000 (Three

Hundred and Thirty Thousand United States Dollars) from retired Lt. General Ishaya Rizi Bamaiyi by falsely represented to General Bamaiyi that the $330,000 was part payment for professional fees charged by Chief Afe Babalola (SAN) to handle General Bamaiyi’s case in Court and to facilitate his (General Bamaiyi) release from prison custody.
I am of the firm view that from the plain, natural, ordinary reading of the Charge above, it is clear and without any ambiguity. The Charge specifically named the Appellant and others some of whom are at large. The Charge further stated that “on or about 20th November, 2004 which is the date of the commission of the offence alleged and charged. The charge then in clear and understandable terms explained the offence for which the Appellant was charged, I am of the view that the charge has clearly spelt out what the Appellant is coming to answer in Court in substantial details sufficient to exclude any ambiguity. In OLOWU VS. NIGERIAN NAVY [2007] All FWLR (Pt. 350) 1278 at 1301 (SC), the Supreme Court of Nigeria held that:
It is not part of our criminal Justice system that the contents of a

charge should be subject of speculation and inference as rightly stated in the case of Medical and Dental Disciplinary Tribunal v. Okonkwo (2001) FWLR (pt.44) 542, (2001) 3 SCNJ 196.” The question however is whether the charge was either ambiguous and difficult for the accused to locate the precise offence for which he was charged. At pages 5 and 6 of the record of appeal, the Judge Advocate in very clear terms read out the charge to the appellant, who affirmatively confirmed that he understood same The charge was again read out to him at page 27 and which he agreed to have understood. From all indications there was no iota or stretch of imagination that the appellant was at all left in doubt as to the nature of the charge against him In other words, the charge at hand is neither defective nor ambiguous.

In the instant case, at page 127 of the records of appeal, it is shown that the Appellant pleaded not guilty to the two Count Charge. It is not on record that the Appellant expressed any objection to the Charge either personally or through her counsel. The law is trite, that an accused person who has an objection to a charge for

any formal defect on the face thereof or for any perceived irregularity relating to procedure, the accused person ought to make his objection immediately after the charge has been read over to him and not later. The learned Counsel for the Appellant said that the issue of jurisdiction can be raised at any stage of the proceedings even for the first time on appeal. I must state that whilst the issue of jurisdiction can be raised at any stage of the proceedings, the question of a defect or ambiguity in the Charge has to be raised immediately the Charge is read over to the accused and not later. see: NDUKWE vs. LPDC [2007] 5 N.W.L.R. (1026) 1 at 52 (SC), MAGAJI vs. NIGERIAN ARMY [2008] 8 NWLR (pt.1089) 388 at 383-384, (SC), DES – DOKUBO vs. THE NIGERIAN ARMY (2015) LPELR-25969 (CA)Pg. 23-24, and MADU & ORS vs. FRN (2016) LPELR-40315 (CA) Pg. 21. Again, the law is well settled beyond any controversy that where an accused person conceives that he needs to raise objection to a charge, such objection must be raised timeously at the trial Court preferably before or upon arraignment or immediately thereafter. See: AMADI vs. FRN (2008) 12 S.C (Pt. 111), FRN vs.

ADEWUNMI (2007) 10 NWLR (Pt. 1042) 399 and EDUN vs. POLICE (1966) 1 All NLR 43. The purpose of Section 158 of the Administration of Criminal Justice (Repeal and re-enactment) Law of Lagos State 2011, which is similar to Section 220 of the Administration of Criminal Justice Act 2015 is to stop defendants from inundating the trial Courts with frivolous and vexatious objections designed to delay trial, the section provides that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the trial unless the defendant was infact misled by such error or omission. Section 158 of the Administration of Criminal Justice Law (Supra) is a good case flow management provision designed to guarantee expeditious trial of criminal cases in the lower Courts. Even though the objection to the Charge in the instant appeal relates to ambiguity, this Court in refusing to take objection to a charge on grounds of duplicity and misjoinder in ALAKE Vs. THE STATE (1991) 7 NWLR (Pt. 205) 567 at 588-589 held that It is the duty of counsel to raise any

question of duplicity of charge or misjoinder at the trial and not wait till the matter is on appeal An appellate Court will be most unkind, most unfair, and oppressive to the trial Court to take an issue not raised before the trial Court and reverse the judgment based on the new issue. I must state that the objection to the competence of the charge against the Appellant on allegations of ambiguity is misconceived, apart from being late, the Appellant failed totally to show that she was in fact misled, or that the charge scrambled her understanding thereby prejudicing her.
It is my view that the Appellant had very clear and undoubted understanding of the charge against her. Count 2 of the charge and the particulars are clear and unambiguous and therefore valid. For the avoidance of doubt therefore it is my view that Count two of the charge against the Appellant and the particulars are neither defective nor ambiguous, the charge is precise and sufficient in details, Appellant was therefore neither misled nor compelled to embark on logical deduction to determine the meaning of the charge against her and what the charge conveyed.

Issue No. 2 is hereby resolved against the Appellant and in favor of the Respondent.

Appellant’s third issue for determination is “whether from the totality of evidence before the Honorable Trial Court especially noting the presumption of innocence constitutionally ascribed to an accused person, the honorable trial Court ought not to have discharged and acquitted the appellant as there is no sufficient credible evidence on which to safely convict. The Appellant’s argument is that from the totality of the evidence adduced at the trial Court, the Prosecution failed to prove beyond reasonable doubt that the Appellant conspired with others for the purpose of obtaining money by false pretense from the nominal complainant, General Ishaya Rizi Bamaiyi.

It is important to state that a two-count charge was preferred against the Appellant herein at the lower Court, to wit, count one – conspiracy to obtain money by false pretenses and Count two – obtaining money by false presences, contrary to Section 8 (a) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 13 of 1995 as amended by Act No. 62 of 1999.

On the first

count, it is the contention of the learned Counsel for the Appellant, that the prosecution failed to prove that the Appellant ever visited Kirikiri Maximum Prison through documentary evidence or records of visitors to meet Chief Fred Ajudua and others at large for the purpose of engaging in the commission of the alleged offence. Counsel argued that the learned trial Judge ought to have placed reliance on the testimonies of DW1, the head of Kirikiri Prison and disbelieved the evidence of PW1 and PW2.

The testimonies of PW1 and PW2 can be found at pages 130 to 135 and 136 to 137 of the record of appeal respectively. PW1, General Ishaya Rizi Bamaiyi (Rtd), the complainant, testified at pages 130-135 as follows and I quote:
“I know the Defendant. I know her as the Registrar of Justice J. O. K. Oyewole while I was standing trial in that Court. She visited us 3 times at Kirikiri Maximum prison where I was detained. I got to know her through a criminal trial I had in Justice Oyewole’s Court, I was standing trial in that Court for attempted murder of Late Alex Ibru …
In the course of my detention, I met Mr. Fred Ajudua in Prison. He promised to

study my case as a Lawyer even though he is also in detention.
Chief Fred Ajudua purported to have engaged Chief Afe Babalola SAN to take charge of my defence. According to Chief Ajudua, Chief Afe Babalola SAN charged me N15,000,000 Million Dollars Chief Fred Ajudua told me that any money paid, has to be through Justice Oyewole’s Registrar and that money will get to Chief Afe Babalola. He further said that the visit of the Registrar will assure me of the genuineness of the plan and that the money if paid will get to the right quarters.
Consequent upon this, the Accused made 3 visits to me in prison. The 1st was made on 23rd October, 2004. She came to me in the visitial (sic) room. Fred Ajudua together with the prison officer ACP Abdullahi Garuba were there. On that day she told me that she was sent by Hon. Justice Oyewole and that the matter is in date hands (sic). That ended the first meeting.
The 2nd visit was on 6th November, 2004 at about 10a,m. She came with her daughter. Fred Ajudua brought them to the visiting room with the Prison Officer ACP Abdullahi Garba conducted the visit and assured me that any money released will go

through Hon. Justice Oyewole to Afe Babalola. That ended the 2nd visit. The 3rd visit was 20th November, 2004. A friend of mine brought the money to me in a Ghana-must-Go bag. It was 33 bundles at $1100,00 denomination with one bundle ,… $110,000.00 in Dollars. I call Ajudua, took the money to the visitor waiting Room and in the presence of Fred Ajudua, and Ajudua’s errand boy Johathan ACP Abdullahi Garuba, Ronke and I counted the money, It was 33 pieces (in bundle) of $110,000.00 making a total of $330,000.00 us Dollars.
The Accused opened the bad and Jonathan packed the money into the Bag, zip it and Fred Ajudua saw them off to the gate. In the evening of that day Fred Ajudua came to my cell, told me that the Defendant confirmed that she had delivered the money to Hon. Justice Oyewole and that the Judge called Ajudua that the money had been delivered to Chief Afe Babalola. That ended the 3rd visit.
That was the last time I saw the Registrar, the Accused until we met at the EFCC office in Lagos on 19th December, 2013. I main (sic) a Diary in which I record every event…”

In his own testimony at the trial Court, PW2, ACP Abdullahi Garba,

also testified at pages 136-137 of the record of appeal as follows and I quote:
“On 23rd October, 2004, the Accused came to our office and in the visiting room had meeting with Fred Ajudua, Ade Bendel and General Bamaiyi. The meeting tasted for about 15 minutes and she left. The ACP, Mr. Tajudeen Kehinde introduced the Defendant as the Registrar from the High Court, Lagos.
On 6th November, the Defendant again came to Kirikiri to visit Ajudua with her daughter. Later she met Ajudua and General Bamaiyi. Myself and ACP Tajudeen Kehinde and CSP Emmanuel Ejiofor conducted the visit. On 20th November, 2004, the Defendant with one Jonathan, a boy to Fred Ajudua, they both went to visit Ajudua. Later General Bamaiyi came with the visiting room with Ghana-Must-Go red in color. I inquired from General Bamaiyi the contents of the bag. He said it is money. I ask how much. He said $330,000.00 US Dollars. I saw it… The defendant Jonathan and General Bamaiyi in my presence counted the money, put it in red Ghana-Must-Go bag with Jonathan holding the bag on one side and the Defendant holding it on the other side and the two of them left with the bag and the

money. On the way, they met Ajudua on the say and he (Ajudua) saw them off.”

During cross-examination by learned Counsel Bamidele Ogundele, PW2 stated as follows at page 137-138 of the record of appeal and I quote:
“I conducted the visit at 20th November, 2004. To see Fred Ajudua, you do not need a formal application. But to see special inmates here General Bamaiyi, C. P. John Danbaba, Col Jubril Yakubu, CSP Rabo Lawal, Major Hamsa Al Mustapha you require a written application with 2 passport photographs attached.
There is evidence because I saw her and my colleague saw her. Thsat (sic) is more than enough evidence. I do not know whether or not ACP Tajudeen Kehinde and CSP Emmanuel Ejiofor made statements to EFCC because I left Lagos since 2006.
Before meeting at the EFCCs office, on 19th December 2013, I have seen the Defendant 4 times, it was therefore not difficult for me to recognize her at the EFCC’s office”

On the other hand, DW1, Vincent Ubi, a Deputy Controller of Prisons, in charge of the Kirikiri Maximum Prison, at the relevant time testified at pages 185-186 of the record of appeal, he stated as

follows:
“When you want to visit, you apply and I forward the application to my 2i/c i.e. Deputy. They will deal with it. I dont involve myself in visit, No visitor can enter Kirikiri Maximum Prison without my approval. My 2i/c in 2004 was Tajudeen Kehinde, I know ACP Garuba Abdullahi (PW2). Garuba Abdullahi is a General Duty Officer at that time.
Any money for an inmate goes to the record. My approval must be sought and be obtained in releasing money to the inmates.
General Ishaya Bamaiyi was my detainee.
We dont accept dollar into the yard. It is naira. When an application is made, I dont see the applicant. It is my staff who will bring the application for my approval.
I am not aware that $330,000,00 was released to the defendant at Kirikiri Maximum Prison.”

During cross examination, at page 186 of the record of appeal by learned Counsel for the Prosecution Mr. Atteh, the witness DW1 said as follows:
There is General Regulation governing visit to prison. At some point, it came to my knowledge that some of my subordinates breached some of these regulations.
ACP Okodua,

Tajudeen Kehinde & Abduilahi Garuba were sharing the same office. In the day to day performance of their duty.
I was not with them, I have a separate and different office. It therefore not humanly possible for me to know what goes on in the office occupied by these 3 officers.

It is apparent from the testimonies of PW1, PW2 and DW1 as reproduced above that, while the testimonies of PW1 and PW2 relate to the facts allegedly showing how the Appellant and other persons, particularly Chief Fred Ajudua, through concerted efforts purportedly conspired to commit the alleged offence for which the Appellant was convicted, DW1 on the other hand during examination-in-chief merely testified as to the standard practice in place with respect to prison visitations and handling of monies and further that he was “not aware that $330,000.00 was released to the defendant at Kirikiri Maximum Prison. In particular, DW1 stated during cross-examination that not only was he aware that some regulations of the Prison Authorities were violated by some officials, he further stated under cross examination that it is “humanly impossible” for him to know

what goes on in the office occupied by the 3 officers. The evidence of PW2, a prison official, showing his complicity in breaching the extant regulations of the Prison Authorities is of such nature that would trigger possible sanctions, he however clearly stated that he saw the Appellant when she came to PW1 and her accomplices within the precincts of the Kirikiri Prisons. Therefore, contrary to the contention of the Appellant’s counsel, the learned trial Judge was right to have relied on the testimonies of PW1 and PW2 who gave factual testimonies as to the events relating to the commission of the offence.

On the issue of Alibi, the law has been consistently stated that once an accused successfully puts up the defence of Alibi, the Prosecution has a duty to investigate in order to disprove it, however, it is not enough for an accused to merely put up the defence of Alibi by saying that he was not at the scene of the crime without providing details and proof of his whereabouts at the time of the commission of the alleged offence. In FABIAN NWATURUOCHA vs. THE STATE (2011) LPELR-8119 (SC) pg. 16-17, FABIYI, JSC said as follows and I quote:

Alibi

means elsewhere. It is the duty of an accused person who pleads it to furnish sufficient particulars of same. He must furnish his whereabouts and those present with him at the material time. It is then left for the prosecution to disprove same. Failure to investigate may lead to an acquittal. See: Yanor v. The State(1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1965) SCNLR 113, Gachi v. The State (1979) 1 NWLR 331; and Odu & Anor. The State (2001) 5 SCNJ 115 at 120, (2001) 10 NWLR (Pt.772) 668.
In Patrick Njovens & Ors. v. The State (supra) at page 401, GBA Coker, JSC (of blessed memory) stated as follows:-
“There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused and disprove the alibi or attempt to do so, there is no flexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby

logically and physically demolished.”
I wish to point it out that failure to check an alibi may cast doubt on the reliability of the case of the prosecution.
The onus of establishing alibi is on the accused person since it’s a matter within his personal knowledge. The defence of alibi would succeed if of the earliest opportunity after his arrest he gives to the police sufficient particulars of where he was at the time the crime was committed and Police investigation of his alibi turns out to be true.”
See also OBIDIKE vs. THE STATE (2014) LPELR-22590 (SC) pg. 48, MOHAMMED vs. THE STATE (2015) LPELR-24397 (SC) pg. 44, and ADEBIYI Vs. THE STATE (2016) LPELR-40008 (SC) Pg. 19-20.
In the instant case, though the accused mentioned in her statement that she never visited the Kirikiri Maximum Prisons, she however failed to give further details as to where she was and who she was with on the said days she was alleged to have visited the Prison. The essence of defence of alibi is to show that a person cannot normally be seen to be present in two separate and distinct places at the same time. See: ASUQUO vs. STATE (2016) 14

NWLR (Pt. 1532) 309 at pg. 316. It is insufficient proof of alibi for an accused person to merely assert, as in the instant case, that she did not visit the prison at the relevant times as alleged and could not have been there because he was elsewhere, the Appellant must lead credible evidence to support her defence of alibi because the facts upon which the defence rests are facts peculiarly within the knowledge of the Appellant and no other person. See: OBAKPOLOR vs. THE STATE [1991] 1 NWLR (pt. 165) 113, OCHEMAJE vs. THE STATE [2008] 15 NWLR (pt. 1109) 57. The Appellant herein has failed woefully to discharge the burden which rests on her in this regard and cannot be heard to complain. Where the facts of the case fixed an accused person at the scene of crime, defence of alibi cannot be available to him, the evidence of PW1 and PW2 fixed the Appellant to the locus criminis. Where an accused is fixed to the venue of crime as in the instant case, his attempt to seek refuge under the defence of alibi becomes irrelevant and unavailable.

With respect to the polygraph report tendered as evidence by PW5 and PW6, the Appellant’s contention is that the polygraph

reports have no evidential value and that whether or not the Appellant was telling the truth is not what a mechanical device would show, but a proper investigation. The Respondent on the other hand argued that their testimony can only be rebutted by the testimony of another expert. I am inclined to agree with the Respondent’s counsel to the extent that the polygraph allegedly being challenged by the Appellant was tendered by PW5 and PW6, both of whom indentified themselves as experts. It follows therefore that their evidence can only be rebutted by the testimony of another expert and not by the ipse dixit of counsel or submissions contained in the brief of argument. By the provisions of Section 68 (1) of the Evidence Act 2011, when the Court has to form an opinion upon a point of foreign law, Customary Law, or Custom or Science or Art or as to identity of hand writing or finger impressions, the opinion upon that point of persons especially skilled in such foreign law, customary law, customs, science or art, or questions as to the identity of handwriting or finger impressions are admissible, See: BILLE Vs. STATE (2016) 15 NWLR (Pt. 1536) 363 at 359. It is trite

that evidence not challenged or contradicted is deemed admitted and same requires no further proof. In ELF NIGERIA LTD Vs. OPERE SILLO & ANOR [1994] 6 NWLR (Pt. 350) 258; (2004) LPELR-1115 (SC) Pg. 21, at was held that:
If the evidence of an expert is not shaken under cross-examination and is uncontradicted it should be admitted… it has however to be pointed out that admission of such evidence is subject to there being no good reason to reject it, and in the process of scrutinizing it, could be rejected if there is a reason to do so… if in the light of other relevant credible evidence before the Court the evidence of the expert is not or cannot be true, it cannot be said to be uncontradicted and the Court will be entitled to reject it. Indeed, the existence of other relevant and credible evidence before the Court showing that the evidence of the expert is not or cannot be true will constitute a good reason for rejecting it.”
It is the duty of the Appellant to lead credible evidence to contradict the evidence of PW5 and PW6 or shake the credibility of the expert witnesses under cross-examination, where the expert

polygraph evidence is not contradicted or discredited by the Appellant, the trial Court will admit and act upon the evidence See: also KAYDEE VENTURES LTD. Vs. THE HON. MINISTER OF FCT & ORS (2010) LPELR-1681 (SC) Pg. 51, and ANYA vs. ANYA (2014) LPELR-22479 (CA) Pg. 50 – 51. In my view, the learned trial Judge stated the correct position of the law when he held at pages 279 to 280 of the record of appeal that:
“The law is very clever (sic) that where a party calls an expert on an issue, the adversary if he intends to challenge or dispute the opinion has a duty to call his expert so that the Court can compare the two set of experts and come to an informed decision. Where the adversary fails to call his own expert as in this case, the Court is bound to accept and act on the opinion put forward by expert on record as unchallenged…
In this case, the failure of the Accused to call expert evidence to challenge or controvert Exh P8. makes that Exhibit (i.e. P8) as well as the testimonies of P.W. 5 & 6 uncontroverted and unchallenged. I therefore believe their evidence and place reliance on Exh

P8.
I therefore find and hold that from the testimonies of P.W.5 & 6 couple with Exh “p8, the representation made by the accused to the EFCC that she neither visited Kirikiri Prison nor collected $330,000.00 Three Hundred and Thirty Thousand U.S Dollars from General Bamaiyi are deceptions…”

With regards to the issue of Identification Parade, Appellant contended that the failure of the Economic and Financial Crimes Commission to conduct identification parade is fatal to the case of the Prosecution in the face of the Appellant’s claim that she never met PW2 who testified that he met her in 2000 and then again on the 19th day of December, 2013. Appellant’s counsel submitted that Economic and Financial Crimes Commission ought to have conducted an identification parade to know if PW2 would be able to identify the Appellant.

In ADEYEMI Vs. THE STATE [1991] 2 NWLR (pt. 170) 679, (1991) LPELR-168 (SC) Pg. 20, the Supreme Court per OLATAWURA JSC held that:
“It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised is an orchestrated

identification parade. Identification depends on the mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial Judge from accepting his evidence.”
See: AFOLALU Vs. THE STATE [2010] 16 NWLR (Pt. 1220) 584 SC, (2010) LPELR-197 (SC) Pg. 31, OCHIBA vs. THE STATE (2011) LPELR-824 (SC) Pg. 35, ADESINA & ANOR vs. THE STATE (2012) LPELR-9722 (SC) Pg. 35, OLANIPEKUN vs. THE STATE (2016) LPELR-40440 (SC) Pg. 16-17, and OKIEMUTE vs. THE STATE (2016) 15 NWLR (Pt.1535) 297 at 301-304. Identification parade is not the only means of identifying a person who is suspected to have committed an offence. An identification parade becomes necessary where the victim did not know the accused person and his initial acquaintance was during the commission of the crime, or that the victim was confronted briefly by the offender, or the victim was unable to observe features of identification of the offender due to insufficient opportunity to do so, but where there is clear and uncontradicted eye witness account of identification of the person who

committed the offence, or that the witness knew the accused person previously, where the witness says the accused is a familiar or definite person by name or by abode, or he can be positively identified, and the accused is connected to the commission of the offence by concrete, cogent and convincing evidence, in such circumstance identification parade will not be necessary See: OKIEMUTE Vs. STATE (Supra). The witnesses in the instant case had ample opportunity to identify the Appellant from his testimony, and it needs to be mentioned that the essence of identification is to obviate the possibility of miscarriage of Justice. The identification of the Appellant was not in doubt from the testimony of PW2, identification parade was therefore unnecessary in the circumstance. The conclusion reached by the learned trial Judge cannot be faulted, when he held at pages 276-277 of the record of appeal that the witness had ample opportunity to identify the accused, and Identification parade is not necessary, as recognition of the accused person by the witness is more reliable than identification parade.

The final question is whether the Respondent proved the charge

against the Appellant beyond reasonable doubt as held by the trial Court. Now, with respect to the first count of conspiracy, conspiracy has been simply defined as the agreement between two or more persons to carry out an illegal act. It must be stated that it is not always easy to prove the actual agreement by the conspirators to achieve their unlawful purpose. As far back as 1973, while stating the circumstances in which the offence of conspiracy can be inferred from the acts of the accused persons, the Supreme Court of Nigeria in PATRICK NJOVENS & ORS. Vs. THE STATE (1973) ALL NWLR 371; (1973) LPELR – 2042 (SC) Pp. 57, Per COKER, JSC held as follows:
“The overt act which evidences conspiracy is the actus reus and the actus reus of each and every conspirator must be referable and very often is the only proof of the criminal agreement which is called conspiracy. It is not necessary to prove that the conspirators, like those who murdered Julius Ceaser, were seen together coming out of the same place at the same time and indeed conspirators need not know each other. See R. v. Meyrick and Ribuffi (1929) 21 C. App. R. 94. They need not have started

all the conspiracy at the same time for a conspiracy started by some persons may be joined at a later stage or later stages by others. The gist of the offence of conspiracy is the meeting of the mind of the conspirators. This is hardly capable of direct proof for the offence of conspiracy is complete by the agreement to do the act or make the omission complained about. Hence, conspiracy is a matter of inference from certain criminal acts of the parties concerned done in pursuance of a criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of the common design may be and very often are given in evidence against any other or others of the conspirators.”
Reiterating further in DABOH vs. THE STATE (1977) ALL NLR 146, (1977) LPELR 904 (SC) Pp. 25 – 26, UDO UDOMA, JSC, said as follows and I quote:
“It may be stated that where persons are charged with criminal conspiracy, it is usually required that the conspiracy as laid in the charged be proved; and that the persons charged be also proved to have been engaged in it. On the other hand, as it is not always easy prove the

actual agreement, Courts usually consider it sufficient if it be established by evidence the circumstances from which the Court would consider it safe and reasonable to infer or presume the conspiracy
In the recent decision of the Supreme Court of Nigeria in OKIEMUTE Vs. STATE (Supra), the apex Court still repeated the above position when the Court held as follows again:”Proof of conspiracy is either by direct evidence of how the conspiracy came about or by inference from certain criminal acts or omissions of the parties concerned, done in pursuance of an apparent criminal purpose common to them. Conspiracy can hardly by direct evidence since plotting is done secretly being a meeting of the minds. In proof of conspiracy, the act or omissions of the conspirators in furtherance of the common desire may be and is often given in evidence against another of the conspirators”
See also: OZAKI vs. STATE (1990) 1 NWLR (pt. 124) 92, ONYENYE vs. STATE (2012) 15 NWLR (pt. 1324)596 and BALOGUN vs. A. G. OGUN STATE (2002) 6 NWLR (pt. 763) 512.
From the above cited decisions therefore, the offence of conspiracy is of such a

nature that it can be proved by circumstantial evidence showing other facts from which the fact in issue can be lnferred. See also ODUNEYE vs. THE STATE [2001] 2 NWLR (pt. 697) 311, OMOTOLA vs. THE STATE [2009] 7 NWLR (pt. 1139) 149 SC.

In the instant appeal, the evidence of the prosecution shows a connivance principally between the Appellant and Chief Fred Ajudua to obtain money from PW1, General Ishaya Rizi Bamaiyi the complainant under the pretense that the money would be transmitted to Chief Afe Babalola SAN representing his professional services for representing PW1 who was charged with the murder of Kudirat Abiola. PW1 testified as follows at page 130 of the record of appeal:
“Chief Fred Ajudua purported to have engaged Chief Afe Babalola SAN to take charge of my defence. According to Chief Ajudua, Chief Afe Babalola SAN charged me N15,000,000 Million Dollars Chief Fred Ajudua told me that any money paid, has to be through Justice Oyewole’s Registrar and that money will get to Chief Afe Babalola. He further said that the visit of the Registrar will assure me of the genuineness of the plan and that the money if paid will get to the right

quarters

The above testimony was further corroborated by PW2 who gave evidence to the effect that the Appellant, Hon. Justice Oyewole’s Registrar at the relevant time visited the Kirikiri Maximum Prison three times, and on one of the three occasions, she collected the sum $330,000.00 from the complainant in a red “Ghana-Must-Go bag”. I am of the view that the learned trial judge was right when he held at page 263 of the record of appeal that: “the evidence of 2nd P.W. ACP Garba Abdullahi stating categorically that the Accused visited Kirikiri Prison on three (3) occasions seeking to see Chief Fred Ajudua and holding meetings with him … shows clearly that she was acting in concert with Chief Fred Ajudua.” Even though there was no direct evidence showing actual agreement between the Appellant and Chief Fred Ajudua, the circumstantial evidence before the Court particularly on the fact of the Appellant’s visit to the Prison and collection of monies from PW1 to create a genuine impression on the complainant, is sufficient to lead to the irresistible conclusion that the Appellant, conspired with Chief Fred Ajudua to commit the offence of

conspiracy to obtain money by false pretense.

Appellant also challenged her conviction on the second count relating to obtaining money by false pretense. Learned Counsel for the Appellant argued that the prosecution failed to prove the essential elements of the offence. It is important to state that the duty of the prosecution in every criminal trial is to prove the charge against the accused person beyond reasonable doubt. See: DIBIE Vs. THE STATE [2007] 9 NWLR (Pt. 1038) 30.

To establish the offence of obtaining money by false pretense contrary to Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act, it is mandatory on the prosecution to prove that:
(a) there is a pretense;
(b) the pretense emanated from the accused person;
(c) it was false;
(d) the accused person knew of its falsity;
(e) there was intention to defraud;
(f) the thing is capable of being stolen;
(g) the accused person induced the owner to transfer his whole interest in the property.
See: THE STATE Vs. AJULUCHUKWU (2010) LPELR – 5028 (CA), ONWUDIWE Vs. FRN [2006] ALL FWLR (Pt. 319) 774, ALAKE Vs. THE STATE [1991] 7

NWLR (Pt. 205) 567.

At pages 265 to 266 of the record of appeal, the learned trial judge held as follows:
“The summary of the above ingredients is that there must be a false representation from the Accused to the complainant which induced the latter to part with his money or property.
From the above decision, the most important of the ingredients is that there must be a false representation emanating from the accused which was relied on and acted upon.
It is the platform that all other ingredients depend. In fact the alleged visit is the plank or to use the language of Company Law, the substratum of this offence, 1st P.W. General Ishaya Bamaiyi (Rtd) is the complainant in this Charge and may be said to have an interest to serve.
The evidence of 2nd P.W. ACP Garba Abdullahi stated pointedly and categorically that the accused visited Kirikiri Prison on three (3) occasions and that he was present at the meetings where discussions were held between the accused, 1st P.W. and Chief Fred Ajudua. This witness was unshaken and categorical
The falsity of the representation was given in evidence by 4 P.W. Mr

Adebayo Adenipekun Senior Advocate of Nigeria. The witness gave evidence on Tuesday 12th May, 2015 to the effect that his chambers Afe Babalota & Co., was never instructed or briefed by General Ishaya Bamaiyi (Rtd) at any point in time and that the chambers had nothing to do with General Ishaya Bamaiyi (Rtd), the 1st P.W
Since there was no communication of any kind between the 1st P.W. and the chambers of Afe Babalola & Co as revealed in the evidence of 1st & 4 p.w. the falsity of that representation is clearly known to the Accused. The Accused also in her statement and evidence in Court did not claim to have anything to do with the chambers of Afe Babalola & Co. Also from the evidence led by the Prosecution, there is no doubt that an intension to defraud (sic). The thing involved is the sum of $330,000.00 Three Hundred and Thirty Thousand US Dollars.
From the evidence of 1st & 2nd P.W, the Accused person induced the 1st P.W. to part with the said sum and the 1st P.W. did part with the money. The evidence of 2nd P.W. is credible, cogent and direct
With the above, the Prosecution has proved and beyond

reasonable doubt the essential ingredients of obtaining money under false pretense…

I have no doubt at all that the above findings emanated from correct evaluation of the evidence led at the trial. I also have no doubt that the learned trial Judge rightly held that the prosecution had proved beyond reasonable doubt that the Appellant is guilty of the offence of obtaining money by false pretense. The evidence on record shows an intention on the part of the Appellant and other conspirators to defraud the complainant of the said sum of money. The finding by the learned trial Judge is therefore right. This issue is also resolved against the Appellant and in favor of the Respondent.

Learned counsel for the Appellant also raised the issue of the Respondent’s brief contradicting Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007 on the ground that the processes do not bear the stamp of the legal practitioner who signed it and that the Respondent’s Brief is rendered useless by the failure to tick the name of the person who signed the said Brief although it bears the stamp of one Ihenacho Ekele Enyinnaya. The

Respondent’s brief contained in the Records of Appeal however shows that the Respondent Brief contains the name of three legal Practitioners and one of them signed the process.

It is trite that technicalities cannot stand in the face of substantial Justice. It is common practice that a legal process can contain the names of two or more legal practitioners. The requirement and purpose of Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007 is that the legal practitioner who signed the legal process must affix his stamp and seal. The rationale behind this requirement in my view, is to checkmate quacks in the legal profession and ensure that legal processes are filed by genuine legal practitioners who are registered members of the Nigerian Bar Association and truly qualified to practice law. See: TARZOOR Vs. IORAER (2016) LPELR-25975 (SC) Pg. 17-18, and TODAYS CARS LIMITED vs. LASACO ASSURANCE PLC (2016) LPELR-41260 (CA) pg. 6-8.
In the instant case, where the process bears the name of three legal practitioners and the stamp and seal affixed is that of one of the legal practitioners listed on the face of the process, it

will amount to technical in Justice to hold that the Respondent’s Brief contravenes Rule 10(1) of the Rules of Professional Conduct for Legal Practitioners 2007. See: IKECHUKWU vs. NWOYE (2013) LPELR-22018 (SC) pg. 10, DANKWAMBO vs. ABUBAKAR [2015] LPELR-25716 (SC) pg. 23, and JEV & ANOR vs. IYORTOM & ORS [2015] LPELR-24420 (SC) pg. 38-39.

In the light of the foregoing therefore, this issue is also resolved against the Appellant and in favour of the Respondent. On the whole therefore, having resolved all issues in favor of the Respondent, this appeal is bereft of merit and same is hereby dismissed by me. The Judgment of the lower Court delivered by L. B. LAWAL-AKAPO J. of the Lagos State High Court delivered on 21st December, 2015 against the Appellant is hereby affirmed. I also affirm conviction and sentence passed on the Appellant.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the comprehensive judgment prepared by my learned brother, Tijjani Abubakar, J.C.A., which I had the honour of reading in draft and add by way of emphasis that the defence of alibi was not available to the appellant vide Njovens and Ors. v. The State (1973) N.N.L.R. 76 at 93 – 94

where the Supreme Court held inter alia that –
There is nothing extraordinary or esoteic in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished. The Supreme Court had had the occasion to consider this point in Hemyo Atam & Anor. v. The State, S.C.632/66 decided on the 11th January, 1967 and had observed on this point as follows:
“Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason. Justice had been denied to the appellants and there should

at least have been a reasonable doubt as to their guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the appellant were identified by three eye-witnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of fact were unreasonable or cannot be supported having regard to the evidence. If the alibis had been true, it would have been open to the appellants to call witnesses in support of them and neither of them did so”.

I too see no merit in the appeal and hereby dismiss it and affirm the judgment of the Court below (Lawal-Akapo, J,).

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance a draft copy of the lead judgment just delivered by my learned Brother, TIJJANI ABUBAKAR JCA, in which all the crucial issues which fall for determination in this appeal have been adroitly considered admirably resolved. I agree with the reasoning and conclusion reached in the lead judgment to the effect that the guilt of the Appellant was proved beyond

reasonable doubt as required by law.

My lords, in a charge alleging obtaining money by false pretences, the intention to defraud is cardinal and must be proved by the prosecution to secure conviction. Now, fraud simply put refers to a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. See Black’s Law Dictionary, 8th Edition, @ p. 685, See also Jegede V. Federal Republic of Nigeria (2013) All FWLR (Pt. 666) 1.

At the trial, as can be gleaned from the Record of Appeal, the Respondent as the Prosecution called six witnesses in proof of the crimes alleged against the Appellant as the Accused person, and who on her part called two witnesses in her defense. It is pertinent to point it out at once that in criminal prosecution, while the law requires the clearest of evidence showing the commission of the offence alleged against the accused person, and such evidence may be direct or confessional or circumstantial, there is no requirement of law as to the number of witnesses as a sine quo non for proof of the guilt of an accused and thus even the testimony of one witness, if

credible, cogent and believable by the Court can secure a conviction even for the highest of offences in cases in which corroboration is not by law required. I thought I should also add that decisions of Court are not reached by majority vote of witnesses but by the quality of evidence led and thus certainly not on the strength of the hordes or host of witnesses called. Thus, a lone witness with sufficient credibility and cogency will suffice. See Alhaji Muazu Ali v. The State (2015) 5 SCM 26; See also Odili v. The State (1977) 4 SC 1; Oguonzee v. The State (1998) 5 NWLR (Pt. 551) 521; Alonne v. IGP (1959) 4 FSC 203; Ibodo v. The State (1975) 9 11 SC (Reprint) 80; Abeke Onafowokan v. The State (1987) 1 NWLR (pt. 61) 538; Akpabio v. The State (1994) 7 NWLR (pt. 359) 635.
In the instant appeal, PW1 gave a direct account of the events leading to the alleged commission of the crimes by the Appellant and her confederates in crime. It is so worrisome that the Appellant, a person then employed in the Justice sector as a Registrar of an High Court judge (as he then was but now of the Court of Appeal) would be alleged and proved beyond

reasonable doubt to have been involved in such a criminal behaviour capable of bringing the judiciary, charged with the onerous duty of holding the balance of Justice to the end that Justice is rendered to all who appear before the Courts, into disrepute but for her timely successful prosecution and removal from the system before she soils the reputation of the Judiciary, particularly in these challenging times in the life of the Judiciary in Nigeria. In law therefore, so long as the evidence adduced by the prosecution is sufficient, as in the evidence marshalled out by the Respondent against the Appellant in the instant appeal, to establish the crime alleged against an accused person, it would even become immaterial and of no moment to the Court even if a particular witness was not called or a particular document was not tendered in evidence. See Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 – 251; Olayinka v. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.

It is indeed the prerogative of a trial judge who sees and hears the witnesses to choose whom of them to

believe and whom to disbelieve and to ascribe probative value to such evidence, oral and or documentary, being the master of the facts and once its inferences, evaluation or assessment and findings are based on the available evidence adduced before it and is correct, an appellate Court will not interfere. Thus, it is only where the conviction of an accused person is not supported and or founded on credible evidence that such a conviction would be liable to be set aside on appeal but not otherwise. See Emeka V. The State (2014) LPELR – 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka v. The State (2003) 7 NWLR (pt. 819) 408; Isibor v. The State (2002) 4 NWLR (pt. 758) 241; Iko v. The State (2001) 14 NWLR (Pt. 732) 221; Buba v. The State (1994) 7 NWLR (pt. 355) 195: Arehia v. The State (1982) NSCC 85.

My lords, the requirement of law that the guilt of an accused person must be proved beyond reasonable doubt does not impose on the prosecution any greater duty than what it entails, which is proof of the essential ingredients of the offence charged and not proof beyond all iota of doubt or proof to the hilt. See Emmanuel Eke v. The State

(2011) 200 LRCN 143 @ p. 149.

In the lead judgment, with which I agree completely and had adopted as mine, it has been sufficiently and remarkably demonstrated that the Court below did carried out due and proper appraisal of the entirety of the evidence led by the parties before it and came to the right conclusion and finding that the guilt of the Appellant was proved beyond reasonable doubt by the Respondent. This Court has no other duty in such circumstances than to affirm the correct and sound judgment of the Court below, for as Aniagolu JSC, puts it so succinctly in Sylvester Ogbomor V. The State (1985) 1 NCC 224, inter alia thus:
“The dictates of Justice would command that the guilty be punished und the innocent set free after a fair hearing …. do not permit the acquittal of an otherwise guilty person upon fanciful errors in the charge. The law always aims at substantial Justice.
And in Saidu v. The State (1982) 1 NLR 49 @ p.67; Obaseki JSC, poignantly reiterated this point inter alia thus:
“It does not give the Court any joy to see offenders escape the penalty they richly deserve

Need I say on

anything more this issue? I dare not but to simply bow to the ingrained sense of wisdom in the above statement of the law by no less a Court than the Apex Court in the land in two different decisions, and so I bow! The offender found guilty under the due process of law must be punished, more so for a staff of the judiciary to serve as a clear warning signal and deterrent to other like minded staffers of the Judiciary, if there still be any such characters left in the Judiciary. Hopefully, none left any longer!

It is for the above few comments of mine and for the fuller reasons adroitly marshaled out in the lead judgment that I too hold that the appeal lacks merit and is thus liable to be dismissed. The appeal is also dismissed by me. The conviction and sentence imposed on the Appellant by the Court below is hereby affirmed.

Appearances:

J.K. Mbanefor with him, Ikwegbue, B. S. Ajayi and A. ZamotFor Appellant(s)

S. K. Atteh (CLO) with him, E. E. IhenachoFor Respondent(s)

Appearances

J.K. Mbanefor with him, Ikwegbue, B. S. Ajayi and A. ZamotFor Appellant

AND

S. K. Atteh (CLO) with him, E. E. IhenachoFor Respondent