AJAYI TAIWO OLAYIWOLA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12207(CA)
In The Court of Appeal of Nigeria
On Friday, the 30th day of November, 2018
CA/L/500C/18
RATIO
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY
“Conspiracy is implied from the evidence there was meeting of minds and the intent was to deceive and get him released, and the aim was achieved. The submission of appellant counsel therefore flies in the face of overwhelming evidence pointing to the Appellant. In SMART v STATE (2016) LPELR 40827(SC) RHODES VIVOUR JSC at PG 27-28. The Apex Court held on the essence of conspiracy; ‘Now the essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be expressed or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. It must be noted that a conspiracy is a continuing offence other persons may join an existing conspiracy and become parties to it?. the agreement between the parties must be proved beyond reasonable doubt and an inference or circumstantial evidence of an agreement would do.'” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
EVIDENCE: CIRCUMSTANTIAL EVIDENCE
“Circumstantial evidence is something that irresistibly flows from establishing facts. See PETER v STATE (1997) LPELR-2912 (SC) 24 ADIE v STATE (1980) LPELR 176(SC) ADESINA & ANOR v STATE (2012) LPELR 9722 (SC), UDOR v STATE (SUPRA). The simple circumstantial evidence and evidence of all E.F.F.C investigation team at trial is that, if the Appellant had not held out as having known the suspect that long he would not have been released and bail would have been refused or granted a much stricter term, therefore this amounted to perverting the course of justice.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INTERPRETATION: MEANING OF ‘CONSPIRACY’
“Misrepresentation in law has been defined in BYUAN RESOURCES LTD v MINISTER OF FCT & ORS (2016) LPELR-41494 (CA) to mean: “The act of making a false or misleading assertion about something usually with the intent to deceive. The word denote not just written or spoken words but also any other conduct that amount to false assertion. 2. The assertion so made, an assertion that does not accord with the facts.? A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts or (b) does not have the confidence that he states or implies the assertion or (c) knows that he does not have the basis that he states or implies for the assertion.” PER ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
INTERPRETATION: WHO IS A STANDING SURETY
“A person who is standing surety for an accused person should do so after proper consideration and personal knowledge of the accused. Standing surety for an accused based on recommendation can be very dangerous. The bases for standing surety is that the accused is personally known to the surety. It is a vote of confidence on the accused by the surety. He is saying the accused is of good character. It is based on that assurance that a Court allows the accused to go on bail. It is therefore a big responsibility on the shoulders of the surety. A surety inability to produce the accused is therefore seen like an act of deceit on the Court and this will be taken seriously. The surety therefore has a great burden to show it did all within his power to bring the accused.” PER TOBI EBIOWEI J.C.A
JUSTICES
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria
TOBI EBIOWEI Justice of The Court of Appeal of Nigeria
Between
AJAYI TAIWO OLAYIWOLA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A. (Delivering the Leading Judgment):
This appeal flows from the Lagos State High Court judgment of (S.S. OGUNSANYA J) delivered on 9th March, 2017, wherein the lower Court convicted and sentenced the Appellant to 5 (five years) and 6months imprisonment on two counts charge.
The facts of the case are that the Appellant was charged and arraigned by the Respondent on a two count charge for conspiracy to pervert the course of justice and making false statement to public officers dated 27th May, 2014.
The Respondent had alleged in February 2014, that its officials received complaints of stealing and issuance of dud cheque for a company operating under the name of ?TAN AGRO NIG LTD? against the suspect ISAH SANUSI. He was arrested and was granted bail after preliminary investigation, upon the application of the Appellant who signed the bail papers. He was subsequently asked to produce the suspect he stood surety for and was unable to do so, he was arrested after a period of time and he was then arraigned on a two count charge.
The defence counsel at the end of prosecution’s case submitted that he would be resting his case on the case of the Appellant wherein after adoption of address (The Court was persuaded that the Appellant conspired with the suspect to pervert justice).
The lower Court convicted and sentenced him to 5 years and 6 months imprisonment.
Dissatisfied with the decision, the Appellant filed a Notice of Appeal on 3rd May, 2018.
The Appellant brief was filed on 31st May, 2018, settled by BODE OLAOSEBIKAN ESQ., MAYOWA ABATAN ESQ., OF BODE OLAOSEBIKAN & CO wherein he formulated a single issue;
“Whether with the facts and circumstances of this case the Respondent proved beyond reasonable doubts that the Appellant conspired with the suspect at large to pervert the course of justice.”
The Respondent did not file any brief as at the time of the hearing and there was no appearance for the Respondent Counsel. The counsel was served on 13th November, 2018 and the Appellants brief was also served on the Respondent that is the ‘ECONOMIC CRIME COMMISSION’ on 1st of June, 2018 and no excuse given for their absence and no Respondent brief was filed.
This Court proceeded with the hearing of the appeal in line with ORDER 19 Rule 10 (1) ?OF THE COURT OF Appeal rules 2016.
“If the Respondent fails to file his brief, he will not be heard in oral argument?”
In this wise, this appeal shall be considered on the Appellant?s brief alone but this does not lessen the burden on the Appellant.
In THE HON MINISTER OF FEDERAL CAPITAL TERRITORY & ANOR v OLAYINKA OYELAMI HOTELS (2017) LPELR 42876(CA) at PG 4-5 AKOMOLAFE-WILSON JCA held;
“…the respondent is deemed to have conceded the appeal. Despite the concession by the respondent however this Court is duty bound to consider the appeal on its merits. This is because the findings of the lower Court are presumed correct until they are set aside. The appellant will still have to win on the strength of case presented on appeal and not on the technicality or inadvertence of an indolent Respondent…”
The sole issue herein is whether with the facts and circumstances of this case the Respondent proved beyond reasonable doubts that the Appellant conspired with the suspect at large to pervert the cause of justice.
ISSUE 1
Therefore the Appellant submitted on the sole issue that the guilt of a criminal person must be established beyond reasonable doubt. He relied on ANI & ANOR V THE STATE (2009) 38 NSCQ 667 at 683.
Appellant submitted that there was no circumstantial evidence or sets of facts to suspect, or infer that the Appellant conspired with the suspect to abscond to pervert justice, and that the mere allegation that the Appellant had met the suspect ISAH two days before bail was granted was not sufficient to convict the Appellant. Furthermore counsel submitted that the inability to produce the suspect does not mean the appellant conspired with the suspect he relied on NDEWENU POSU & ANOR v THE STATE NSCQ 45 (2011) cited by the trial Court was not on all fours, he referred to SECTION 96(1)(b) and Sec 97(1)of Criminal law of Lagos State and submitted that the elements of these sections were not proved (conspiracy, obstruction & perversion) were not proved nor established he citedGARBA v C.O.P. [2007] 16 NWLR (PT. 1060) at PAGE 405 paras A-B; ONAH v STATE (1985) 2 NWLR 101 at 108, AKINLOLU v THE STATE [2017]11 CAN (PT.1) 69, IKEMSON v THE STATE [1989] 3 NWLR (PT. 110) 455; PATRICK NJOVENS v STATE.
In addition neither PW1, PW2 or PW3’s evidence pointed at the elements save Exhibit P3 – the bail bond, which bound the sureties to forfeit the sum of N27,869,054 (Twenty-Seven Million, Eight Hundred and Sixty Nine Thousand and Fifty Four Naira Only, only) the bail bond had correct and traceable address and phone number of the Appellant, none of these were found to be wrong. The Appellant submitted that none of the above is sufficient to convict the Appellant. He relied on SUNDAY UDOR v THE STATE (2014) 58 NSCQR 824 at 852, VIVIAN ODOGWU v THE STATE (2013) 55 NSCQ 309 at 337 to drive home the point that circumstantial evidence must be narrowly examined with utmost care.
Appellant submitted that, the charge of conspiracy upon which Appellant was convicted is not a strict liability offence that needs no further proof. There must be a meeting of minds of the conspirators and overt act in furtherance of the intention or agreement to commit the same crime. He relied on the STATE v FATAI AZEEZ & 5 ORS (2008) 35 NSCQR 426 at 474-475; ALHAJI BABANGIDA IRO ISANSI v THE STATE NCC (VOL3) 1.
Appellant submits that the appellant counsel at the lower Court meant to say he was making no case submission but instead announced that he was resting his case on the case of the prosecution thereby closing his case and this mistake of counsel should not be visited on the litigant. That the negligence of the Appellant counsel occasioned miscarriage, he cited DAVID OMOTOLA & 4 ORS v THE STATE 4 NCC 89 at 140, CHIEF THOMAS OKPALA & 2 ORS v M.U. OKPU & 2 ORS (2003) 13 NSCQ 473.
Finally he urged that the appeal be allowed, the judgement of the lower Court set aside, and the Appellant discharged and acquitted on the two counts.
RESOLUTION
The statement of offence; 1ST COUNT
Conspiracy to pervert the cause of justice contrary to Section 97(1) of the Criminal Code of Lagos State 2011.
2nd
Making false statement of public officers contrary to Section 96(1) and (B) of Criminal Law of Lagos State 2011
The particulars of the offence, in the charge was; ‘AJAYI TAIWO OLAYIWOLA AND ISAH SANUSI on about the 31st day of May 2013’ conspired together to defeat the course of justice by frustrating the EFCC from securing the attendance and prosecution of ISAH SANUSI in Court over a case of stealing and issuance of dud cheque in the sum of N27,869,054.00 (Twenty Seven Million Eight Sixty Nine Thousand and Fifty-Four Naira?.) it was dated 27th May 2014.
The provision under which Appellant was arraigned was Section 96(1) (b):
“Any individual who gives any information which he knows or be lives to be false, to any person employed in the public service with the intention of causing such person
a) To do or omit to do anything which such person ought not to do or ought to do if the true facts concerning the information given were known to such person or
b) To exercise or use his lawful powers as a person employed in the public service to the injury or annoyance of another person’s guilty of a misdemeanour and liable to imprisonment for one year?
Section 97(1)
Any person who conspires with another to obstruct, prevent or defeat the course of justice is guilty of a felony and liable to imprisonment for seven years.”
In examining the evidence in proof of this; PW1 testified that the two share no consequential relationship, Suspect is from kano and Appellant is Yoruba and they did not know each other before the bail incident but, Appellant undertook to stand as surety for him on the ground that he knew him well, and would produce him at their request. The crucial thing was that Appellant had stated he knew the suspect very well and could produce him which was false. Exhibit P1-5 were tendered; P3, P4 and P6 are bail bond, statement and verifications of surety, respectively see page 92-95 of the record. He tendered the Exhibit P3-bail bond where he said the penalty was a fine of N28M (Twenty Eight Million). PW2 stated that there was no falsification in the documents tendered in the surety -ship the addresses were duly verified to be correct he confirmed the Appellant filed a bond, but despite his assurance it was discovered that he knew nothing about the Suspect PW3 testified that he had stood surety for another suspect?Bode Omotoye who had also absconded.
The additional statement of Appellant P7 was to the effect that he only knew the suspect two days before the bail. That he made the Respondents Officials release the suspect on the premise that he knew him well. All the witnesses were EFCC operatives who investigated the Appellant and the suspect.
OLUSOLA OLANIRAN; PW3 tendered Exhibit P7 the additional statement of Appellant and under cross-examination, he stated that the Appellant made them believe that he had known the suspect for long hence they released him and much later he made Exhibit P7 where he now stated that he only knew MR ISAH SANUSI two days prior to the date he came for him as a surety and therefore misled them.
The above forms the basis of the Respondents case at page 124 of the record, the appellants counsel was called upon to open his defence but he asked for an adjournment, the case was adjourned from that day 2nd June, 2014 to 16th of September, 2015 for defence. On this date at page 125 of record, the Appellants counsel MR AYO LAPITE announced thus:
“The defendant has decided to rests its case on the evidence of the prosecution. The suspect is yet to be charged.”
The Court adjourned the matter to 11th November, 2015 for adoption of written addresses.
At this junction, I think I shall address the submission of counsel to the point that the Defendant Counsel in the lower Court meant to say he was making a no case submission; ‘when he said he was resting this case on the prosecution’s case there is a wide difference between a no case submission and’ resting the Respondent case on the prosecution’s case which clearly meant he was not calling any evidence. I am of the opinion that the Defendant was under no misapprehension or confusion, he had ample time, about 3 months to reconsider his stand before he announced same and even another one month when he proceeded to write addresses therefore, he was perfectly clear in his strategy. For the Appellant counsel to put this submission before the Court and ask for a retrial, which cause he actually term mistake of counsel and that the litigant has been deprived of the opportunity to give evidence in defence of the charge, leaves much to be desired.
It is quite unfortunate that every excuse or lapses in the conduct of a case has been termed mistake of counsel. It is in fact, the Court that was denied the opportunity of listening to the accused, watching his demeanour or assessing his liability. See ONWUBUAGHA & ORS V IBEH(2014) LPELR- 24331 (CA) where this Court held thus;
“Mistake or negligence of counsel is not a magic wand to which the Court must always succumb. The mistake of counsel must be shown to really be that of counsel …Counsel should not in the guise of espousing his client case descend to rubbishing his colleague’s image and reputation. See SKYE BANK v YAVANT B. DAVID 2016 LPELR -4158
Where this Court held that; a counsel owes his client the duty of utmost devotion in presenting his client’s case and to the best of his ability with professional skill.”
I am unable to accept this submission and I discountenance this request.
On the merit of this appeal, largely the first count is conspiracy, he admitted in the statement of 11th November, 2013 at page 18 & 19 of the record he stated that:
“He was approached six months ago by his friends Alhaji Bala and Alhaji Shetimma in respect of the required bail while he was in custody On 31st of May, 2013 he wrote to the director for Operations, Lagos office for the bail EFCC for Isa Sanusi and also signed a bail bond … and only knew the said Mr. Isah Sanusi the suspect two day before the request for bail.”
This gives the impression of a deliberate act of standing in for an unknown person, and giving a false impression that misled the EFCC to release him on bail. The charge is not so much as giving correct details of his particulars but by accepting the caveat that he knew the suspect well enough to produce him this amounts to making false representation leading to his release.
The Appellant is a Lagos State Civil servant and ought to have know the dangers and implications of standing in for an unknown person to (EFCC) Public Officers and that it was in connection of an alleged crime, he had a duty to live up to his undertaking to produce the suspect.
Circumstantially, the suspect and the appellant agreed for the Appellant to stand as surety for him and there was an element of deceit involved in that, he knew he had no influence or hold to compel the suspect to live up to him appearing for investigation. They knew they hardly knew each other therefore, they both knew the suspect would escape.
The assumption that he believed he would attend his investigation amounts to the stark reality that ignorance of the law is no excuse.
Therefore the Appellant counsel submission is misconceived when he submitted that, the appellant did not do anything wrong and that the particulars supplied on his house and office address were correct.
Conspiracy is implied from the evidence there was meeting of minds and the intent was to deceive and get him released, and the aim was achieved. The submission of appellant counsel therefore flies in the face of overwhelming evidence pointing to the Appellant. In SMART v STATE (2016) LPELR 40827(SC) RHODES VIVOUR JSC at PG 27-28. The Apex Court held on the essence of conspiracy;
“Now the essence of conspiracy is an agreement between two or more persons to do an unlawful act. The agreement may be expressed or implied, but the offence of conspiracy is complete once the parties agree to effect an unlawful purpose. It must be noted that a conspiracy is a continuing offence other persons may join an existing conspiracy and become parties to it?. the agreement between the parties must be proved beyond reasonable doubt and an inference or circumstantial evidence of an agreement would do.”
The Respondent by Exhibit P3 P4 and P7 proved counts 1 & 2 in that the Respondent did not in fact and in law know the suspect before standing surety a deceit known to both of them hence he must bear the consequences for his deliberate misrepresentation.
Misrepresentation in law has been defined in BYUAN RESOURCES LTD v MINISTER OF FCT & ORS (2016) LPELR-41494 (CA) to mean:
“The act of making a false or misleading assertion about something usually with the intent to deceive. The word denote not just written or spoken words but also any other conduct that amount to false assertion.
2. The assertion so made, an assertion that does not accord with the facts.?
A misrepresentation is fraudulent if the maker intends his assertion to induce a party to manifest his assent and the maker (a) knows or believes that the assertion is not in accord with the facts or (b) does not have the confidence that he states or implies the assertion or (c) knows that he does not have the basis that he states or implies for the assertion.
See KUFORIJI & ANOR v V.Y. B. NIG LTD (1981) LPELR -1716 (SC); AFEGBAI v A. G. EDO STATE & ANOR (2001) LPELR -193 (SC).
The Appellant made fraudulent representation which was acted upon and very much influenced the decision of the officers of the investigating team to release the suspect on bail to the Appellant.
Circumstantial evidence is something that irresistibly flows from establishing facts. See PETER v STATE (1997) LPELR-2912 (SC) 24 ADIE v STATE (1980) LPELR 176(SC) ADESINA & ANOR v STATE (2012) LPELR 9722 (SC), UDOR v STATE (SUPRA).
The simple circumstantial evidence and evidence of all E.F.F.C investigation team at trial is that, if the Appellant had not held out as having known the suspect that long he would not have been released and bail would have been refused or granted a much stricter term, therefore this amounted to perverting the course of justice.
In OLUSEGUN ADEGBOYE v THE STATE (2015) LPELR-41723 (CA) the Court per ONIYANGI JCA at PG 39 paras A-C held on the meaning and nature of circumstantial evidence thus;
Circumstances evidence can be said to be nothing more than evidence of surrounding circumstance which by their nature is cable of establishing a position such as the criminality of an accused person with the highest exactitude.”
See also MBANG v STATE 12 SC (PT. 111) 193, OMOTOLA v STATE 2007 4 NWLR (PT. 1139) 145.
Exhibits P4 and 7 are clear, and in Exhibit P3 signed by Appellant is an undertaking to take full responsibility for the suspect, to produce him and be responsible for his obligation to the suspect, if he defaults. These are pointers that the Appellant admitted the elements of the offence.
The implication is that, the act of the false representation made it almost impossible to investigate the petition against Isah and the recovery of the sum of N27,869,054.00M (Twenty Seven Million Eight Sixty Nine Thousand and Fifty ?Four Naira) he was said to have absconded with.
I find no error in the decision of the lower Court except to say that the penalty in the event of in-ability to produce the suspect ought to have been imposed but in the absence of a Respondents brief or notice this Court has nothing more to say except to add few word that the rising number of sureties/hired sureties that have no influence or hold and do not know the person they stand sureties for, have to be dealt a deliberate blow to reduce the number of absconding suspects/accused standing trial in our Courts.
This appeal lacks merit and is dismissed, the judgement of OGUNSANYA J of the Lagos State High Court delivered on 9th March, 2017 is here by affirmed.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I have had the privilege of reading in draft the leading Judgment just delivered by my learned brother, ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, JCA, and I agree that there is no substance in this appeal and that the same should be delivered.
For the same reasons set out in the said judgment, I too, dismiss this appeal. Appeal dismissed.
TOBI EBIOWEI, J.C.A.: I was obliged the judgment of my learned brother, A.O. Obaseki- Adejumo, JCA before now, which I read in draft. I agree with his Lordship that the appeal fails and it is dismissed. I also affirmed the decision of the lower Court.
A person who is standing surety for an accused person should do so after proper consideration and personal knowledge of the accused.
Standing surety for an accused based on recommendation can be very dangerous. The bases for standing surety is that the accused is personally known to the surety. It is a vote of confidence on the accused by the surety. He is saying the accused is of good character. It is based on that assurance that a Court allows the accused to go on bail. It is therefore a big responsibility on the shoulders of the surety. A surety inability to produce the accused is therefore seen like an act of deceit on the Court and this will be taken seriously. The surety therefore has a great burden to show it did all within his power to bring the accused.
Taking an accused on bail as a surety should not be seen as a business. This is also dangerous. By this, I mean a situation where people do it as a business just as others go about their business. The Court should discourage such attitude. The lower Court is in order and I also affirmed the decision of the lower Court.
Appearances:
M. O. Abatan For Appellant(s)
Respondent not represented.For Respondent(s)
