ABDULMALIK SULEIMAN v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12280(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of December, 2018
CA/A/464C/2015
RATIO
APPEAL: WHERE GROUNDS OF APPEAL IS FORMULATED
“It is trite that appeals are decided on issues formulated from competent grounds of appeal and where no issue is formulated from a ground or grounds of appeal such ground or grounds of appeal from which no issue is formulated is/are deemed abandoned. See: – 1. ADESANYA KAYODE V THE STATE (2016) 199 AT 218 B-E per ARIWOOLA, JSC who said: – ‘There is no doubt that the appellant’s four issues were distilled from five of the seven grounds of appeal filed by the appellant. In other words, the four issues were generated from only grounds 1, 2, 3, 4 and 6 of the grounds of appeal, while no issue has been distilled from Grounds 5 and 7. It is trite law that any ground of appeal from which no issue has been distilled is deemed abandoned and no argument on such ground can be countenanced by the Court. They are incompetent…'” PER PETER OLABISI IGE, J.C.A.
JUSTICES
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
PETER OLABISI IGE Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
ABDULMALIK SULEIMAN Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment):
The Appellant and one other person were arraigned before the High Court of the Federal Capital Territory, ABUJA on 13th day of May, 2009 charged with the following eleven offences viz: –
“COUNT 1
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March 2008, in Abuja, within the jurisdiction on the High Court of the Federal Capital Territory did agree between yourselves to obtain the sum of 500.000 (Five hundred thousand naira) from one John Bernard Yusuff of National Institute for Cultural Orientation, Abuja under the false pretence that you were staff of the Economic and Financial Crimes Commission and thereby committed an offence contrary to Section 8 (a) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006 and punishable under Section 1 (3) of the same Act.
COUNT 2:
That you, Abdulmalik Suleiman and Adabeyene S. Abdulaziz sometime in March 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory did attempt to obtain the sum of 500.000 (Five hundred thousand naira) from one John Bernard Yusuff of National Institute for Cultural Orientation, Abuja under the false pretence that you were staff of Economic and Financial Crimes Commission investigating a petition against him which you knew is false and thereby committed an offence contrary to Section 8 (b) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act.
COUNT 3:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory did forge an Economic and Financial Crimes Commission complimentary card with the name Comrade Ndanussa Bello rank O. C. Financial Crime, with Address No 15A Awolowo Road, Ikoyi, Lagos and phone No. 08023320989 and thereby committed an offence, punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 4:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory did forge an Economic and Financial Crimes Commission complimentary card with the name Comrade Patric Ugo, rank as O.C. Financial Crime, Address as and No 13, EFCC Building complex, Garki Abuja and phone No 08057994524 and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 5:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory used as genuine forged an Economic and Financial Crimes Commission complimentary card with the name Comrade Ndanussa Bello which you knew to be forged and thereby committed an offence punishable under Section 364 of Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 6:
That you, Abdulmaiik Suleiman and Adabenege S Abdulaziz sometime in March, 2008 in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory used as genuine forged an Economic and Financial Crimes Commission complimentary card with the name Comrade Patric Ugo which you knew to be forged and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 7:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory did forge a petition allegedly written to Economic and Financial Crimes Commission against one John Bernard Yusuff of National Institute for Cultural Orientation, Abuja and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 8:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008 in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory fraudulently used as genuine a petition purportedly written to Economic and Financial Crimes Commission against one John Bernard Yusuff of National Institute for Cultural Orientation, Abuja, which you knew to be forged and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of the Federation of Nigeria (Abuja) 1990.
COUNT 9:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory did forge a letter which you purported to have emanated from Economic and Financial Crimes Commission dated 11 of January, 2008 with Reference No 82225/08 purportedly signed by the Secretary of EFCC inviting one John Bernard Yusuf of National Institute for Cultural Orientation, Abuja for an interview concerning an alleged petition written against him and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 10:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008 in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory fraudulent use as genuine a letter purportedly emanating from Economic and Financial Crimes Commission dated 11th January, 2008 with Reference No 82225108 purportedly signed by the Secretary of EFCC inviting one John Bernard Yusuff of National Institute for Cultural Orientation, Abuja for an interview concerning an alleged petition against him which you knew to be forged and thereby committed an offence punishable under Section 364 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.
COUNT 11:
That you, Abdulmalik Suleiman and Adabenege S. Abdulaziz sometime in March, 2008, in Abuja, within the jurisdiction of the High Court of the Federal Capital Territory pretended to be Operatives of Economic and Financial Crimes Commission (EFCC) by inviting One John Bernard Yusuff of National Institute for Cultural Orientatioh, Abuja for an interview over allegations of unpaid salaries and Duty Travel Allowance fraud when you knew you were not of EFCC and thereby committed an offence punishable under Section 132 of the Penal Code Act Cap 532 Laws of the Federation of Nigeria (Abuja) 1990.”
The Appellant and his co-accused pleaded not guilty to all the Counts contained in the Charge. The Appellant was the 1st Accused at the lower Court. The prosecution called seven (7) witnesses including an Expert Forensic Document Examiner. At the end of trial the learned trial Judge, ADENIYI, J. gave a considered judgment and found the Appellant and the other Defendant guilty and imposed various sentences upon them as follows:-
“On the whole, I find the 1st accused person guilty of Counts 1, 2, 3, 4, 5, 7, 8, 9 and 11 of the offences charged; whilst he is hereby discharged and acquitted of Counts 6 and10 of the Charge with respect to the 2nd accused person, I hereby find him guilty of Counts, 1, 2, 6, 10 and 11 of the Charge; whilst he is hereby discharged and acquitted of Counts 3, 4, 5,7,8 and 9 of the Charge.”
SENTENCE
I have carefully considered the allocutus soberly rendered by Mr. Nafagha on behalf of the convicts and the response of Mrs. Gumbo, for the prosecution.
In imposing sentence on the convicts, I have taken into consideration the gravity of the offences for which the convicts have been found guilty: and the sentences imposed by law, as canvassed by Mrs. Gambo. I have also reckoned with the consideration of the fact, as also noted by Mr. Nafagha, that the essence and aim of punishment, is necessarily not to destroy or ruin the offender, but to reform and deter him.
Even though learned Counsel had reminded the Court that the convicts are in the primes of their lives with enormous family responsibilities; I cannot however overlook the severity of the condemnable scheme they hatched to commit the offences for which they had been convicted. Perhaps if their paths never crossed in the first place, it was possible they would not have found themselves in this ugly situation.
With respect to Count 1, the provision of Section 1(3) of the Advance Fee and other Fraud Related Offences Act, under which the two offenders were convicted, imposes a term of imprisonment of not less than 10 (ten) years without the option of fine. Accordingly I hereby sentence each of the convicts to a term of imprisonment for 10 (ten) years without an option of fine.
On Count 2, the punishment imposed by the provision of Section 1 (3) of the Advance Fee and other Fraud Related Offences Act, is equally applicable.
Accordingly, I hereby sentence each of the convicts to a term of imprisonment for 10 (ten) years without an option of fine.
With respect to Counts 3, 4, 5, 7, 8 and 9 for which only the 1st convict was found guilty, he is liable under Section 364 of the Penal Code Act, to a term of years which may extend to 14 (fourteen) years or with fine or with both. Accordingly, I hereby sentence the 1st convict, for each of those Counts, to a term of imprisonment for 2 (two) years without an option of fine.
On Counts 6 and 10 for which only the 2nd convict was found guilty, the punishment imposed by Section 364 of Penal Code Act also apply. Accordingly, he is hereby sentenced to a term of imprisonment for 2 (two) years without an option of fine.
With respect to Count 11, the provision of Section 132 of the Penal Code Act, under which the two offenders were convicted, imposes punishment of a term of imprisonment which may extend to 3 (three) years with fine or with both. Accordingly, I hereby sentence each of the two convicts to a term of imprisonment for 1 (one) year without an option of fine.
It is hereby ordered that the sentences imposed on each of the convicts shall run concurrently.”
The Appellant was aggrieved with the aforesaid verdict and has by his Amended Notice of Appeal dated 5th day of October, 2018 and filed on the same date appealed to this Court on seven (7) grounds as follows:-
3. GROUNDS OF APPEAL
GROUND 1
The Learned Trial Judge erred when in his ruling dated 22nd October 2012 admitted the Confessional Statement of the Appellant when same was not made voluntarily.
PARTICULARS OF ERROR
i) Trial within trial revealed that same was procured through duress.
ii) The Accused was severely beaten to procure it.
GROUND 2
The Learned Trial judge erred when he held that he has no jurisdiction to try the matter.
PARTICULARS OF ERROR
i) All the ingredients of the offence took place outside the Federal Capital Territory.
ii) What determines jurisdiction in criminal trials is the place where an offence was committed not where the Accused is domiciled or taken for investigation.
GROUND 3
The Learned trial Judge erred in Law when he held that the 2nd Accused person could no longer raise objection to the admissibility of his Confessional Statement as being involuntary at the defence stage once some has been admitted.
PARTICULARS OF ERROR
A Court of law has Power to expunge a Confessional Statement even at the point of writing judgment or even on Appeal if it found out that the Confessional Statement was not voluntary.
GROUND 4
The Learned Trial Judge erred by passing TEN (10) years sentence on the Appellant on counts 1 & 2 of the Charge on the ground that it is the minimum sentence under Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.
PARTICULARS OF ERROR
1) The minimum sentence under the law is Seven (7) years imprisonment.
ii) Even where an offence does not have the option of fine, the Court still has discretion not to impose maximum sentence and can even award fine.
iii) The sentence did not take into consideration the modern policy of punishment.
GROUND 5
The Learned Trial Judge erred and committed double jeopardy on the Appellant by sentencing the Appellant under Count 2 & 11 of the Charge.
PARTICULARS OF ERROR
i) Count 11 is a multiplicity of Charge as the same ingredient in Charge No.2 is also the same ingredient in Charge No. 11
ii) Having sentence the Accused person for impersonation under Section 8(b) and 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act 2006. They cannot be sentenced again under Section 132 of the Penal Code Act LFN, 2004.
GROUND 6
The Learned trial judge erred by passing maximum sentence on counts 1 & 2 of the Charge on the grounds that they have no option of fine.
PARTICULARS OF ERROR
i) Even where an offence does not have the option of fine, the Court still has discretion not to impose maximum sentence and can even award fine.
ii) The sentence did not take into consideration the modern policy of punishment.
GROUND 7
The Judgment is unreasonable and unwarranted and cannot be sustained having regard to the evidence led at the trial.
RELIEFS SOUGHT FROM THE COURT OF APPEAL
i) AN ORDER allowing the Appeal.
ii) AN ORDER setting aside the Ruling of the Lower Court delivered on 22nd of October, 2012 admitting the Confessional Statement of the Appellant and in its place to mark same as rejected.
iii) ALTERNATIVELY, an order reducing the sentencing of the Appellant in count 1 & 2 from the maximum sentence.”
The Appellant’s Brief of Argument dated 22nd day of July, 2016 was filed on 22nd day of July, 2016 and deemed properly filed on 15th October, 2018 while the Respondent’s Brief of Argument dated 16th day of February, 2017 was filed on 13th February 2017 and deemed properly filed on 8th March, 2017.
The learned Counsel to the Appellant B. O. NAFAGA, ESQ nominated three issues for determination of the Appeal as follows:-
“1) Whether the learned trial judge was right to have assumed jurisdiction to try this matter when all the ingredients of the offences were proved to take place outside the Federal Capital Territory. (Ground 2)?
2) Whether it was right for the Court to convict the Appellant on Count. No. 2 & 11 when both counts bother on impersonation. (Ground 3)?
3) Whether the Learned trial Judge was right to have imposed a sentence of 10 years imprisonment as the minimum sentence when the law creating the offence state the minimum punishment to be 7 years? (Ground 4).”
I must state at the onset that the Amended Notice of Appeal which was brought in vide a Motion dated and filed on 5th October, 2018 and granted by this Court on 15th October, 2018 the Appellants aforesaid Amended Notice of Appeal contained seven (7) grounds which I have reproduced in this judgment. However the learned Counsel to the Appellant stated in the Appellant’s Brief of Argument dated and filed the 22nd July, 2018, that the Notice of Appeal consists of five (5) grounds.
The Appellant’s learned Counsel cannot be right. Again, the learned Counsel to the Appellants formulated three (3) issues for determination of the appeal and tied issue 1 to Ground 2, Issue 2 to Ground 3 and Issue 3 to Ground 4. In effect going by Appellant’s Statement that the Amended Notice of Appeal contained five grounds, the learned Counsel to the Appellant had only formulated issues on grounds 2, 3 and 4 leaving out grounds 1 and 5 without any issue distilled from grounds 1 and 5. In any event this Court is bound by the Amended Notice of Appeal dated and filed 5th October, 2018 and deemed filed on the 15th day of October, 2018. It means that the learned Counsel to the Appellant did not formulate any issue in respect of grounds 1, 5, 6 and 7 of the Amended Notice of Appeal filed on 5/10/2018 and deemed filed on 15th October, 2018.
It is trite that appeals are decided on issues formulated from competent grounds of appeal and where no issue is formulated from a ground or grounds of appeal such ground or grounds of appeal from which no issue is formulated is/are deemed abandoned. See: –
1. ADESANYA KAYODE V THE STATE (2016) 199 AT 218 B-E per ARIWOOLA, JSC who said: –
“There is no doubt that the appellant’s four issues were distilled from five of the seven grounds of appeal filed by the appellant. In other words, the four issues were generated from only grounds 1, 2, 3, 4 and 6 of the grounds of appeal, while no issue has been distilled from Grounds 5 and 7. It is trite law that any ground of appeal from which no issue has been distilled is deemed abandoned and no argument on such ground can be countenanced by the Court. They are incompetent. Accordingly, grounds 5 and 7 of the grounds of appeal filed by the appellant having been abandoned are to be discountenanced as no argument can be based on them. Appeal is decided on the issues formulated from the grounds of appeal. See: West African Examination Council (WAEC) v. Omodolapo Yemisi Adeyanju (2008) 7 SCI 173 at 188, (2008) 9 NWLR (Pt. 1092) 270; Albert Afegbai v. Attorney-General Edo State & Ors (2001) 14 NWLR (Pt. 733) 425 at 451, (2001) 11 SC 42; Ogundiya v. The State (1991) 3 NWLR (Pt. 181) 519 at 532 -533.
The said two grounds 5 & 7 are accordingly struck out.”
2. BAMIDELE PATRICK V THE STATE (2018) 16 NWLR (PART 1645) 263 AT 274H per AUGIE , JSC who said:-
“It is trite law that grounds of appeal represent the complaints of an appellant against the decision of a Court, and the appellant, who raised the grounds of appeal, is at liberty to abandon any of the grounds on which he predicates his appeal or withdraw any ground – Araka v. Ejeagwu (2000) 15 NWLR (Pt. 692) 684 5C. Alternatively, where an appellant does not formulate an issue in his brief to cover a ground of appeal, that ground of appeal would be deemed to be abandoned, even where arguments have been proffered on same.”
Grounds 1, 5, 6 and 7 contained in the Appellant’s Amended Notice of Appeal dated and filed on 5/10/2018 are hereby struck out there being no issues formulated from them.
The issues formulated by the Respondents are as
1. Whether the learned trial judge had jurisdiction to try the case.
2. Whether there was duplicity of charges in Count 2 and Count 11.
3. Whether the trial judge was right to have imposed a sentence of 10 years imprisonment.
The three issues formulated by the Appellant are hereby adopted for consideration of the appeal. I will however take them together.
“ISSUES 1, 2 AND 3
1) Whether the learned trial judge was right to have assumed jurisdiction to try this matter when all the ingredients of the offences were proved to take place outside the Federal Capital Territory (Ground 2)?
2) Whether it was right for the Court to convict the Appellant on Count. No. 2 & 11 when both counts bother on impersonation. (Ground 3)?
3) Whether the Learned trial Judge was right to have imposed a sentence of 10 years imprisonment as the minimum sentence when the law creating the offence state the minimum punishment to be 7 years? (Ground 4).”
The learned Counsel to the Appellant submitted that it was wrong for the learned trial Judge to have assumed jurisdiction over this case when all the disclosed ingredients of the offence took place outside the Federal Capital Territory. That it has been laid down in the case ofIBORI V FRN (2009) ALL FWLP (PT. 487) 159. That venue for trial of an offence is the place where the offence was committed. That in the instant case the entire ingredients of the offence took place in Lagos and not at ABUJA hence according to the learned Counsel to the Appellant only the Federal High Court or the High Court of Lagos State has the jurisdiction to try the Appellant for the offences for which he was charged. That a Court should not be hungry for jurisdiction. That in this case the two Accused persons met when travelling to Lagos when the purported plan to commit the offence took place and that the venue was not disclosed. That the complimentary cards, letter head of EFCC were said to have been printed by the Appellant in Lagos.
That Appellant placed a call to John Bernard Yusuff from Lagos. That Appellant was arrested in Lagos. That these are the alleged facts from the evidence before the lower Court. That the prosecution has a duty to establish the place the Accused persons agreed to commit the offence. That this is important because Counts 1 and 2 stated the offences took place in Federal Capital Territory within trial Court’s jurisdiction but that the record shows that the discussion between Appellant and ADABENEGE S. ABDULAZIZ (2nd) ACCUSED) took place on their way to Lagos. That the prosecution has not proved beyond reasonable doubt the place of the occurrence of the crime. He relied on the cases of:-
1. ONWUDIKE V FRN (2006) ALL FWLR (PT. 319) 776.
2. HUMBA V THE STATE (1978) 10 DSCC 126.
3. OLADELE VS THE STATE (1993) 1 NWLR (PT. 2099) 294.
That it will be safe to conclude that the agreement (if any) between the Accused persons was reached outside the jurisdiction of FCT High Court. He relied on the case of QUEEN V ABIASA 1962 ALL NLR 645. He urged this Court to set aside the judgment of lower Court for want on jurisdiction.
In his own submission under Issue 1 the learned Counsel to the Respondent stated that where an offence has several elements and the mutual element or part thereof occurs in one State and the others in another State or where different offences are committed in the course of the same transaction in different territorial jurisdictions, then both States have concurrent jurisdiction to try the offences. He relied on the case of OKORO V ATTORNEY-GENERAL (1965) 1 ALL NLR 283. She stated that the Appellant and 2nd Defendant committed the offences in the course of same transaction. That the offences took place in Lagos while some elements occurred in Abuja. That the whole episode began when fake letter of invitation was delivered to the nominal complainant’s office. That it would not matter which of the Defendants delivered the letter. That it was furtherance of the conspiracy between the two Defendants. That 2nd Defendant was arrested in Abuja. That the FCT High Court has jurisdiction to try the Defendants. Reliance was placed on the CRIMINAL PRACTICE IN NIGERIA AND LAW AND PRACTICE BY OLUWATOYIN DOHERTY P. 161 and the cases of:-
1. GEORGE V STATE (2011) 1 AT 73 C per OGUNBIYI, JCA (as he then was) later JSC.
2. IBORI V FRN (2009) 3 NWLR (PART 1128) 238 AT 223 -324 per OREDOLA, JCA;
3. MARCEL NNAKWE V THE STATE (2013) LPELR – 20941 (SC) per OGUNBIYI, JSC (2013) 18 NWLR (PT. 1385) 56 SC C- E.
That the decision of the lower Court is consistent with the position of Supreme Court of Nigeria relying on pages 434 – 437 of the record. She stated that PW2 was resident in Abuja like the Appellant’s co-accused who was arrested in Abuja. That the forged letter of invitation and forged complimentary cards were received by the victim in Abuja.
On Issue 2, as to whether it was right for the Court to convict the Appellant on Counts 2 and 1 when both Counts bother on impersonation, the Appellant’s learned Counsel submitted that it was wrong for the learned trial Judge to have convicted the Appellant on Counts 2 and 11 when both concerned impersonation. He reproduced the two Counts and submitted that the substance of Count 2 under Section 8(b) of the Advance Fee Fraud and Other Related Offences Act (2006) which bothers on false pretence is the same as provided under Section 132 of the Penal Code Act Cap. 532. That the conviction of the Appellant under both laws amounts to double jeopardy. That this is contrary to Section 36(9) of the Constitution of the Federal Republic of Nigeria 1999 as amended. That both Counts have same ingredients that is Counts 2 and 11. He relied on the case ofR v. ADIGUN (1942) 8 W.A.C.A. 15 AT 15.
That no one can be punished twice for same offence. He urged this Court to set aside the said Count 2 of the Charge.
In her own submission under Issue 2, the learned Counsel to the Prosecution stated there is no duplicity in the two Counts. That false representation or pretence is different from impersonation.
Learned Counsel to Respondent submitted that false pretence is an ingredient of obtaining by false pretence and that Count 2 deals with offence of attempt to obtain by false pretence. Count 11 according to Respondent’s learned Counsel has to do with the offence of holding themselves out as EFCC Staff when they were not. That the Appellant could be convicted under both laws. He relied on Sections 212 -214 of the Criminal Procedure Code which she said was the rule of procedure in operation during the pendency of the case. He also relied on Sections 208, 209, 211, 212 and 213 of Administration of Criminal Justice Act, 2015 as corresponding with provisions of Criminal Procedure Code particularly Section 212 of the Administration of Criminal Justice Act.
He urged this Court to hold that the two offences were proper and the sentence in order.
In respect of the sentence of imprisonment for ten years imposed on the Appellant as minimum sentence the learned Counsel to the Appellant referred to page 438 of the record as to what the trial Court said on the sentence prescribed. He submitted that a Court has discretion when it comes to sentencing but must be exercised judicially and judiciously. He relied on the case of NAMO ISAKU & ORS V THE STATE (1986) 1 NWLR (PT. 17) 516 AT 521 per ORAH, JCA.
That it is clear that the learned trial Judge was of the opinion that the minimum imprisonment prescribed by Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act 2006. He urged this Court to reduce the sentence under offences contained in Counts 1 and 2 from 10 years imprisonment which the learned trial Judge erroneously stated to be minimum sentence the law allows him to impose particularly when it is considered that the Appellant is a young man and first offender. That Appellant did not encourage the product of the offence which is N500,000,00. He cited and relied on the case of SAMUEL GUMBS 191 AR 74 AT 75 per Lord Chief Justice. That the principles enunciated in that case is in tandem with Country’s judicial policy on sentencing.
That the modern judicial policy places more emphasis on reform and rehabilitation. He relied on the cases of:-
1. OSAYOMI V STATE (2006) ALL FWLR (PT. 342) 1572 and 1580. That the trial Judge did not advert his mind to all the principles behind sentencing, otherwise he would not have imposed imprisonment for 10 years on the Appellant.
He relied on KAYODE V STATE (2008) ALL FWLR (PT. 402) 1014 Ratio 4 AT 1037 per ABDULLAHI, JCA and ADESANYA V FRN (2012) ALL FWLR (PT. 649) 167.
That the policy of reformation of criminal jurisprudence has also warranted the enactment of Administration of Criminal Justice Act (ACJ A). That the present. sentencing policy of our Courts tilts more in salvaging of young people. That all these ought to have influenced the mind of the learned trial Judge.
In conclusion the learned Counsel to the Appellant urged this Court to allow the Appeal, set aside the conviction of the Appellant or reduce the sentence.
The learned Counsel to the Respondent referred to Section 1 (3) of Advanced Fee Fraud and Other Related Offences Act, 2006 which she said is the punishment section for offences charged in Counts 1 and 2 and that a person is liable to more than 20 years and not less that seven years without the option of fine. That the ten years imprisonment imposed is still within the punishment prescribed for the offences for which Appellant was convicted upon.
He relied on the case of AMOSHIMA V THE STATE (2011) (PART 1268) 530 AT 553 A – C per ONNOGHEN, JSC (now CJN) and the case of MUSA V THE STATE (2012) 3 NWLR (PART 1286) 59 AT 95 F – H.
In conclusion the learned Counsel to the Respondent urged this Court to uphold the sentence and dismiss the appeal in its entirety.
Now in order to determine whether or not a Court or Tribunal possesses the jurisdiction to adjudicate in a criminal cause or matter, the Court or Tribunal is bound to examine the charge or the counts contained in a charge or information brought by the prosecution against offender(s).
In other words in criminal trials, it is the charges or information that will determine the jurisdiction to hear or decline jurisdiction paying attention to the constitutional provisions or statute which bestows jurisdiction on the Court seised of the criminal case. Regard shall also be paid to the law creating the offence(s) charged and in particular the relevant provisions of the criminal code depending on which part of the country the offence was committed and the venue where at the trial is being conducted. See-
1. MATTARADONA V AMU (1995) 8 NWLR (PT. 412) 225 AT 235H to 236A where this Court per OPENE, JCA held thus: –
“It is the fundamental principle of law that it is the claims of the plaintiff which determines the jurisdiction of a Court to entertain same. See Ajaka Zenkwe & Ors v. Nnadozie (1953) 14 WACA 361 AT 363, Adeyemi v Opeyori (1976) 9 – 10 SC 31. In the instant case which is a criminal matter it is the charge before the Court that determines the jurisdiction of the Court to entertain the matter and the charge.”
I have read the pieces of evidence on record and the statements made by the Appellants in Exhibit P14 wherein he confessed to the printing of all documents they (1st and 2nd Accused) used in their attempt to dupe PW2 their victim in Abuja. The Appellant in the said Exhibit P14 said: –
“I rightly take it upon myself by printing the EFCC letter headed paper, a complimentary card with a fake name (Cmrd. Ndanussa Bello) and a letter of petition written by me also to, make Mr. J. B. Yusuff dance to my tune based on the information made available to me … the documents were printed from one cyber cafe in Olowu Street in Ikeja, Lagos state.”
The evidence on the printed record revealed that he sent those documents to the 2nd Defendant who was resident in Abuja for onward delivery of the concocted letters and complimentary card to the 2nd PW as invitation by EFCC Officials to PVV2 to come for questioning. From the Appellant’s statement he met the 2nd Defendant on a journey which commenced from Abuja to Lagos and the conspiracy to obtain by false pretences, forgery and personating of Economic and Financial Crime Commission Officials to realize their criminal enterprise started.
I am of the firm view that since the victim of the offence charged is based in Abuja and substantial process of consummating the offence largely took place in Abuja and the EFCC official or operatives impersonated were at the Headquarters in Abuja, and phone calls were being made from Lagos to Abuja and from Abuja to Lagos in order to coordinate the fraudulent acts of the Defendants, the High Court of the Federal Capital Territory has the jurisdiction to try the Defendants. The journey that brought the Defendants together leading to the conspiracy hatched by the Appellant and his Co-Defendant to dupe the victim, that is PW2, started in Abuja to Lagos.
The 1st and 2nd Defendants as per evidence of PW2 and their own confessional statements (Exhibits P10 and P14) show that they were acting in concert. It was in evidence that it was the ACCUSED now Appellant that printed the letter of summons taken to the PW2’s office after the Appellant had concocted the fake letters purporting it to be letter head of EFCC and faking the name ‘Comrade Ndanussa Bello’ on fake complimentary card in the name of ‘Comrade Ndanussa Bello’ a supposed EFCC Operative and 2nd Accused delivered the letter with complimentary card. The fact that one of the Defendants was in Lagos and the other in Abuja while actively coordinating and planning how to swindle the PW2 will not vitiate the jurisdiction of the lower Court to try the Appellant along with his Co-Defendant and partner in crime. It rather donated jurisdiction to the lower Court. All the ingredients of the offence were well within the jurisdiction of the High Court of the Federal Capital Territory, Abuja.
The territorial jurisdiction of the lower Court was actively ignited by the acts and activities of the Accused person to consummate their criminal activities.
Whatever the 1st Accused now Appellant did in Lagos and whatever criminal role was performed by the 2nd Accused at Abuja in furtherance of their act of conspiracy are deemed in law to have been carried out by both of them. Any lingering doubts about territorial jurisdiction of Courts to deal with and try offenders involved have been laid to rest by the Supreme Court of Nigeria. Once part or any of the ingredients of the offence involved is committed in the State or place where the Defendant(s) is/are charged, the jurisdiction to try the offence cannot be questioned as long as the Constitution or the Statute creating the offences charged confers jurisdiction on the Court trying the Defendants. See JOSEPH MORAH VS FRN (2018) 15 NWLR (PART 1641) 60 AT 68 H TO 69A – E per AKA’AHS, JSC who said: –
“If a crime is one with multiple elements, with the initial and subsequent elements happening in different states, the position of the law is that each state has a right to try the offender and punish him as if all the elements of the offence were carried out in that State. By the provision of S.12A(2)(b) of the Criminal Code, if part of an offence was carried out in one State, and the other parts of the offence were committed in another State, if the offender later comes into the initial state, he would be held liable as if he committed the whole offence in that state.
This was posited by the Courts in the case of Sunday Okoro v. A. G. Western Nigeria (1965) 4 NSCC 225, (1965) 1 All KR 283. In this case, the accused posted a letter in Port Harcourt, which induced the fraud of certain people in Ibadan. The Court held that the former western region had the jurisdiction to try the case since an element of the offence occurred in its territory. See also Haruna v. State (1972) NSCC 550.
The above provisions could raise some confusion as to whether or not the entry into the territory where the crime is concluded should be voluntary or by arrest. This was laid to rest by this Court in the case of Patrick Njovens v. State (1973) 1 NMLR 331 (1973) ANLP 371 (reprint) where the Court stated at page 393:-
“We are satisfied ourselves that to construe the word ‘enter’ in the subsection as meaning only a voluntary entry would be completely ridiculous since in that circumstance no criminal will ever enter the state when he knows or realize that such entry may make him triable by the laws of the State”.
Thus, this means that entry into the territory in which the crime was committed could be effected by arrest and is not necessarily voluntary. However, this provision would not apply in a situation in which the only event that happens in the particular territory is the death of a person whose death was caused outside the territory; S.12A(2) Criminal Code. For example, if a person is wounded in a fight while in the southern region but he dies from that injury while in the northern region, the code to be applied would be the Criminal Code. See: Territorial Jurisdiction in Nigeria Criminal Law by Olanrewaju Olumide published in https://www.djetlawyer.com.”
At page 71G – H AKA’AHS., JSC continues: –
“The law is that when a co-conspirator does an act or makes an omission in furtherance of a conspiracy, his act is ascribable or imputable and binding on all the conspirators. It does not matter which of the accused did what. The following cases were cited in support: Alagba v. P (1950) 19 NLR 19; Alabi v. The Queen (1959) SCNLR 269; (1959) WRNLR 197; Bello v. Queen (1962) 2 SCNLR 381 (1962) 1 All NLP (Pt 4) 633 at 635; Adekunle v. State (1989) 20 NSCC (Pt. 111) 403 at 411-412; (1989) 5 NWLR (Pt.123) 505; Ikwunne v. State (2000) 5 NWLR (Pt.658) 550. The entry of the appellant into Abuja where an initial element of the offence took place imbued the High Court in Abuja to try the appellant. See: Njovens v. State supra at 272.”
All the offences for which the Appellant was charged along with 2nd Accused person and those against him alone are all triable at the FCT High Court and the said Court was imbued with jurisdiction to try the Appellant.
Issue 1 is resolved against the Appellant.
On Issue 2 as to whether conviction of the Appellant on Counts 2 and 11 amounted to double jeopardy, I have earlier on reproduced the offences charged against the Appellant in Counts 2 and 11. It is necessary to have recourse to Section 1 (3) of the Advance Fee Fraud and Other Related Offences Act No. 14 of 2006 with reference to Count 2 and Section 132 of Penal Code in order to find out whether in fact there is duplicity or double jeopardy in the said Counts against the Appellant both the Appellant as 1st Accused at the Court below and his Co-Accused one ADABENEGE S. ABDULAZIZ (as 2nd Accused) were charged for the aforesaid offences contained in Counts 2 and 11:-
“Section 1(3) of the said Advance Fee Fraud and Other Related Offences Act 2006 provides:-
“1(3) Obtaining by false pretences etc
(1)…
(2)…
(3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more that 20 years and not less than seven years without the option of a fine.
Section 8(b) of the said law provides: –
A person who-
(a) …
(b) attempts to commit or is an accessory to an act or offence.
(c) under this Act commits the offence and is liable on conviction to the same punishment as is presented for that offence under this Act.
Count 11 was brought against the 1st Accused and the 2nd Defendant Appellant pursuant to Section 132 of the Penal Code Act which provides:-
“132. whoever pretends to hold any particular office as a public servant knowing that he does not hold such office, or falsely personates any other person holding such office, and in such assumed character does or attempts to do any act under colour of such office, shall be punished with imprisonment for a term which may extend to three years or with fine or with both.”
As can be seen above the offence contained in Count 2 is quite different and distinct from the offence charged in Count 11 against the Appellant as his co-accused.
The Appellant was charged along 2nd accused of making attempt to obtain the sum of N500,000.00 from PW2 under false pretence. It is the attempt to commit offence that he was charged for under Section 8 (b) of Advance Fee Fraud and Other Related Offences Act 2006 while the Appellant along with 1st Accused were specifically charged for impersonation contrary to Section 132 of Penal Code ‘Act as opposed to offence of attempt for which Appellant was charged in count 2 under a different law. A cursory look at count 2 shows some ambiguity but it does not detract from the fact that offence charged in Count 2 is not at all the same as offence charged in Count 11 of Charge.
The platform upon which the learned Counsel to the Appellant relied for submitting that Section 36 (9) of the Constitution of the Federal Republic of Nigeria 1999 as amended was breached is misplaced. The facts and circumstances of this case and the conviction of the Appellant and the sentence(s) imposed upon him have nothing to do with Section 36(9) of the said Constitution which for ease of reference provides:-
“36(9) No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.”
What Section 36(9) of the said Constitution frowned against is that once a person had been tried and punished or discharged and acquitted of a criminal charge or offence, the State cannot in the same Court or another Court bring charge against that Accused person for an offence for which he had once been tried. That would be a flagrant violation of a citizen’s right under the Nigerian Constitution. The Nigerian Courts will quickly come to the aid of such person when approached to terminate the second proceedings or criminal trial as the earlier one for which the person has been tried and punished or has been found NOT GUILTY by a Court of competent jurisdiction and has been discharged and acquitted. See:-
1. SUNDAY OKOH V THE STATE (1984) LPELR – 2459 (SC) PAGE 3 where OBASEKI, JSC had this to say:-
“Counsel’s further concession that he is not supporting the plea of autrefois convict which was raised in the High Court in my view disentitles learned Counsel of his right to argue the plea of double jeopardy before us. Section 33(9) of the Constitution of the Federal Republic of Nigeria which he relied on gives the plea to an accused who can show that he has been tried by a Court of competent jurisdiction for a criminal offence and either convicted or acquitted.”
2. ISHAMEL AMAEFULE & ANOR V THE STATE (1988) NWLR (PART 75) 238; 1988 LPELR – 450 SC Page 18 – 19 where A. 2 WALI, JSC said:-
“Double jeopardy arises in a situation where a person is purported to have been tried twice.”
3. NIGERIAN ARMY VS BRIG. GEN. MAUDE AMINUN-KANO (2010) 5 NWLR (PART 1188) 429; (2010) LPELR – 2013 (SC) 40 per I. T. MUHAMMAD, JSC who said:-
“It is also against the general principles of penal laws in this country including the Constitution of
36
the Federal Republic of Nigeria, 1999 Section 36(10) of the Constitution provides:
“No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.”
lays down the principle of criminal law that where a person accused of committing a criminal offence(s) which are recognized by law and where he has shown that he has either been pardoned of that offence(s) by the appropriate authority or that he has been tried by a Court of law or a Tribunal set up by law, then he cannot be subjected to any further trial by any Court or Tribunal on that same offence(s). A bar to further prosecution has now been placed between him and those offences. See: North Carolina v. Pearee (1969) 395 US 711; Invade v. I.G.P (1993) 1 NWLR (Pt. 271 08; Barmo v. State (2000) 1 NWLR (Pt. 641) 424 at P. 440-C.”
The doctrine is on the same pedestal like plea of res judicata in civil proceedings.
The case of the Appellant herein does not fall within Section 36 (9) or 36 (10) of the Constitution of the Federal Republic of Nigeria 1999 as amended and as such he cannot plead the defence of double jeopardy as he was never tried for any of the offences for which he was arraigned at lower Court which led to this appeal. There was/is no record of any previous trial of the Appellant on any of the counts he was convicted and sentenced by the lower Court. The Appellant was not punished twice by lower Court for any of the offences laid against him by the prosecution.
Issue 2 is hereby resolved against the Appellant.
Issue 3 has to do with whether the lower Court was right in imposing 10 years imprisonment on the Appellant when the law prescribed a minimum of 7 years.
On page 439 of the record of appeal the learned trial Judge held as follows:-
“With respect to Count 1, the provision of Section 1(3) of the Advance Fee and Other Fraud Related Offences Act, under which the two offenders were convicted, imposes a term of imprisonment of not less than 10 (ten) years without the option of fine. Accordingly I hereby sentence each of the convicts to a term of imprisonment for 10 (ten) years without an option of fine.
On Count 2, the punishment imposed by the provision of Section 1 (3) of the Advance Fee and Other Fraud Related Offences Act, is equally applicable.
Accordingly, I hereby sentence each of the convicts to a term of imprisonment for 10 (ten) years without an option of fine.”
Section 1 (3) of the ADVANCE FEE AND OTHER RELATED OFFENCES ACT which the learned trial Judge relied upon in imposing term of imprisonment for ten years on each of Counts 1 and 2 provides as follows:-
“1(3) A person who commits an offence under Subsection 1 or 2 of this Section 15 liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without the option of a fine.”
I agree with the learned Counsel to the Appellant that the learned trial Judge was under the impression that the minimum term of imprisonment for offences charged in counts 1 and 2 is 10 years imprisonment when in actual fact the minimum prescribed by the statute in question is a minimum of seven (7) years imprisonment with respect to each of counts 1 and 2 with maximum of 20 years on each of the aforesaid counts 1 and 2 all without an option of fine. The sentences that may be imposed are within the range of 7 years and 20 years.
I hereby reduce the sentence of 10 years imprisonment imposed upon the Appellant in respect of Court 1 of the charge to a term of imprisonment for seven years. In the same vein I also in respect of Count 2 of the charge reduce the 10 years imprisonment. Issue 3 succeeds only in respect of terms of imprisonment of 7 years instead of 10 years imposed by the lower Court.
Subject to the above findings of the learned trial Judge are supported by the evidence on the printed record. The conviction of the Appellant on Counts 1, 2, 3, 4, 5, 7, 8 and 9 and 11 and the sentences imposed on Appellant are hereby affirmed.
For avoidance of doubt, Appellant is hereby sentenced as follows:-
1. With respect to Count 1 Appellant is sentenced to a term of imprisonment for 7 (seven) years without an option of fine.
2. On Count 2 the Appellant is sentenced to a term of imprisonment for 7 years without an option of fine.
3. On Counts 3, 4, 5, 7, 8 and 9 for which only the 1st convict (Appellant) was found guilty he is sentenced to a term of imprisonment for (2) two years without any option of fine on each of those Counts
4. With respect to Count 11, Appellant is sentenced to a term of imprisonment for 1 (one) year without option of fine.
The sentences imposed on the Appellant shall run concurrently from the 19th day of June, 2014 which is the date of judgment of the lower Court appealed against.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft the judgment just delivered by my learned brother, Peter Olabisi Ige, JCA. I agree with his reasoning and conclusion reducing the sentences of the appellant’s. I also endorse the order made thereby to which I accordingly abide with.
MOHAMMED BABA IDRIS, J.C.A.: I read the draft judgment just delivered by my learned brother; PETER OLABISI IGE JCA. I agree with the reasoning and adopt the conclusion and orders reached therein. The conviction of the Appellant on counts 1,2,3,4,5,6,7,8,9 and 11 and the sentences imposed are affirmed.
Appearances:
B.O. Nafagha, Esq.For Appellant(s)
Hussaina Gambo, Esq.For Respondent(s)
