FEDERAL REPUBLIC OF NIGERIA v. SUNDAY LUCKY EGBEFOH (2019)

FEDERAL REPUBLIC OF NIGERIA v. SUNDAY LUCKY EGBEFOH

(2019)LCN/13544(CA)

In The Court of Appeal of Nigeria

On Monday, the 24th day of June, 2019

RATIO

CRIMINAL LAW AND PROCEDURE: BURDEN OF PROOF: ON WHOM DOES IT LIE IN CRIMINAL MATTERS

It is abecedarian that in criminal trials the burden is on the prosecution to prove the offence charged beyond reasonable doubt. However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and where the evidence adduced is so strong as to leave only a remote probability in favour of the defendant, then the case is proved beyond reasonable doubt.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CRIMINAL LAW AND PROCEDURE: PURPOSE OF PROVING BEYOND REASONABLE DOUBT

In the words of Oputa, JSC (of most blessed memory) in BAKARE vs. THE STATE (1987) 3 S.C.1 or (1987) LPELR (714) 1 at 12-13:

Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: –

The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence-of course it is possible but not in the least probable the case is proved beyond reasonable doubt.”PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CRIMINAL LAW AND PROCEDURE: PROOF BEYOND REASONABLE DOUBT IS PROOF OF AN OFFENCE WITH THE CERTAINTY REQUIRED IN CRIMINAL TRIALS

Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. In the words of Tobi, JSC in ABEKE vs. THE STATE (2007) LPELR (31) 1 at 17:

“Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.”PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FALSE PRETENSE: DEFINITION

False pretence is defined in Section 20 of the Act as:’false pretence means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FALSE PRETENSE: INGREDIENTS

It is hornbook law that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are:

1. That there was a pretence.

2. That the pretence emanated from the defendant

3. That the pretence was false.

4. That the defendant knew of the falsity of the pretence or did not believe in its truth.

5. That there was an intention to defraud.

6. That the property or thing is capable of being stolen.

7. That the accused person induced the owner to transfer his whole interest in the property.

See DURU vs. FRN (2018) 12 NWLR (PT 1632) 20 at 43-44, IFEANYI vs. FRN (2018) 12 NWLR (PT 1632) 164 at 187, ALAKE vs. THE STATE (1991) 7 NWLR (PT 205) 567 at 591, ONWUDIWE vs. FRN (2006) LPELR (2715) 1 at 55 and ODIAWA vs. FRN (2008) ALL FWLR (PT 439) 436.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

FALSE PRETENSE: THE MOST IMPORTANCE INGREDIENT IN PROVING FALSE PRETENSE

CRIMINAL LAW AND PROCEDURE: WHAT IS A CONFESSIONAL STATEMENT

CRIMINAL LAW AND PROCEDURE: CONFESSION: AN ACCUSED CAN BE CONVICTED ON HIS CONFESSIONAL STATEMENT ALONE

CONSPIRACY: DIRECT, POSITIVE EVIDENCE NOT ENOUGH PROOF

Usually, direct positive evidence of the plot between conspirators is hardly capable of proof. This is on account of the fact that crimes are usually hatched in secrecy. This is why the Courts draw reasonable inferences from the overt acts of the conspirators to establish whether there was a conspiracy: ODUNEYE vs. THE STATE (2002) 2 NWLR (PT 697) 311, OBIAKOR vs. THE STATE (2002) 10 NWLR (PT 776) 612, DABOH vs. THE STATE (1977) 5 SC 197 and SHODIYA vs. THE STATE (2013) LPELR (20717) 1 at 19.The proper approach therefore is to consider the substantive charges and then proceed to see how conspiracy has been made out: OSETOLA vs. THE STATE (2012) LPELR (9348) 1 at 27-28.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONSPIRACY: WHETHER AN ACCUSED CAN BE FOUND GUILTY OF CONSPIRACY WHEN HE HAS BEEN ACQUITTED OF COMMITTING THE SUBSTANTIVE OFFENCE

In ABIOYE vs. THE STATE (1987) 2 NWLR (PT 58) 645 at 653-654, Akpata, JCA (as he then was) stated:

…it is a general principle of law that an accused person cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence …

I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy…PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONSPIRACY: WHEN AN ACCUSED WILL NOT BE FOUND GUILTY OF CONSPIRACY AS A RESULT OF HIM NOT BEEN FOUND GUILTY OF THE SUBTANTIVE OFFENCE

In TEMITOPE vs. THE STATE (2010) LPELR (3752) 1 at 24, Iyizoba, JCA, stated the legal position in pungent terms as follows:

The law is that where the prosecution did not lead evidence on conspiracy but relies on the commission of the substantive offence to infer conspiracy, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal… It is consequently advisable for the prosecution in cases such as this, to lead evidence of conspiracy separately so that if a conviction and sentence is secured in respect of that count, it could be saved in the event that the substantive charge suffers the same fate as the instant appeal.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURTS: THE PRIMARY DUTY OF TRIAL COURTS IN EVALUATING EVIDENCE

It is settled law that it is the primary duty of the Court of trial to evaluate the evidence adduced and ascribe probative value thereto. The trial judge has the unique and unparalleled advantage of hearing the witnesses testify and observing their demeanour. Where a trial judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court will not interfere to substitute its own views for the views of the trial Court, unless the findings made by the trial Court are perverse. See ONOGWU vs. THE STATE (1995) 6 NWLR (PT 401) 276 and AMADI vs. FRN (2008) 12 SC (PT III) 55. Put differently, it is the prerogative of a trial Judge who sees and listens to witnesses to choose which to believe and ascribe probative value to his or her evidence. It is not the place of the appellate Court to evaluate the evidence which has already been evaluated by the Court of trial and which has not been shown to be perverse. An appellate Court will not interfere with findings based on such evaluation unless it is found to be erroneous: ABEKE vs. THE STATE (supra) at 25.PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Respondent was arraigned before the High Court of Lagos State on a three count Information of obtaining money by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act. The Appellant called two witnesses in proof of the offences charged while the Respondent testified in his defence and called no other witness. At the end of the trial, the lower Court held that the offences charged were not proved beyond reasonable doubt. It consequently discharged and acquitted the Respondent on all the counts of the Information.

The Appellant was dissatisfied with the decision of the lower Court and appealed against the same. The judgment of the lower Court is at pages 231-249 of the Records while the Notice of Appeal is at pages 250-253 of the Records. The Records were compiled and transmitted and the Appellant filed its brief of argument on 4th January 2019. The same was deemed as duly filed on 17th January 2019. The Respondent, even though duly served with the Court processes, did not file any Respondents brief and was also not represented at the hearing. The appeal was consequently heard on the Appellants brief alone. In the Appellants brief which learned counsel adopted and relied upon at the hearing, three issues were distilled for determination as follows:

1) Whether the learned trial Court properly evaluated the evidence before it and made a correct finding of fact when it held that ?outside of Exhibit 8, there is nothing before the Court which remotely, directly or indirectly connects the defendant to the complainant PW1, the two UK bank accounts into which the sums of 7,000 and 9,000 pounds sterling were transferred and I so hold. (Ground 1)

2) Whether Exhibits 7, 9(a)-(d), the testimonies of PW1, PW2 and DW1 provides the other evidence in support of Exhibit 8 which satisfy the six-way test laid down in Alarape v. State (2001) 5 NWLR (Pt. 705) 79 (Ground 2).

3) Whether the prosecution has proved that the defendant was acting in concert with others and thereby proved any of the offences charged (Ground 3).

It seems to me that a sole distensible issue that encapsulates the three issues distilled by the Appellant will suffice for the consideration of the submissions of learned counsel and determination of this appeal. The issue which I find apt in the circumstances is:

Whether the lower Court was correct to hold that the offences charged were not proved beyond reasonable doubt.

SUBMISSIONS OF THE APPELLANTS COUNSEL

The Appellant submits that the lower Court having evaluated and found the testimony of the Appellants witnesses as credible made a volte face when it held that there was nothing outside the Respondents confessional statement, Exhibit 8, connecting the Respondent to the PW1 and the two UK bank accounts into which 7,000 and 9, 000 respectively were transferred. It was stated that Exhibits 6, 7 and 9 and the testimony of the Appellants witnesses on the sting operation that led to the arrest of the Respondent afforded other evidence establishing the veracity of the confessional statement. It was posited that the finding of the lower Court was perverse and at variance with the evidence. The cases of IBEH vs. THE STATE (1997) LPELR-1389 (SC) at 16, MOMOH vs. UMORU (2011) LPELR-8130 (SC) at 39 and ELF NIG LTD vs. SILLO (1994) LPELR-1115 (SC) at 22 were referred to. It was maintained that the evidence on record led to the irresistible conclusion that the Respondent was part of the syndicate of fraudsters that perpetrated the offences charged in Counts one and two of the Information. The cases of MAIGARI vs. THE STATE (2013) LPELR-20897 (SC) at 17 and UGWU vs. THE STATE (1972) LPELR-3327 (SC) were relied upon.

It is the further submission of the Appellant that the Respondent admitted in his confessional statement, Exhibit 8, that he was into fraudster business and that he uses his Apple telephone to defraud his victims through the internet and that he had hacked into the email of the complainant and then posed as the complainants friend to perpetrate the alleged fraud against the victim and that he supplied his Diamond Bank account into which money was paid into. It was asserted that Exhibits 7 and 9 afforded other evidence in support of the veracity of the confessional statement as required by law in proof of Count three of the Information. The cases of ALARAPE vs. THE STATE (2001) 5 NWLR (PT 705) 79 and R vs. SYKES (1913) 8 CAR 233 at 236 were cited in support. It was further stated that the testimony of the PW2 on the investigation activities established that the email of the PW1 was hacked into and his business correspondences intercepted and read by the fraudsters as confessed by Respondent in Exhibit 8. The Respondent, it was opined, had the opportunity to commit the crime because he read Computer Science and that he browses the internet with his Apple phone; furthermore that the Respondent was arrested while trying to withdraw the money paid into his account. The Appellant maintained that the confession of the Respondent is consistent with other facts that were established and the veracity of the confession was therefore established such that the lower Court should have relied on the same to convict.

The Appellant further argues that even if the confessional statement, Exhibit 8, is discountenanced, the remaining pieces of evidence point to the irresistible conclusion that the Respondent was part of a larger fraud syndicate consisting of members based in United Kingdom and Nigeria and that the circumstantial evidence was sufficient for the lower Court to have convicted the Respondent, even if for conspiracy. The cases ofMAIGARI vs. THE STATE (supra), PETER vs. THE STATE (1997) LPELR-2912 (SC) and Section 166 of the Administration of Criminal Justice Law were called in aid.

RESOLUTION

In brief, the facts of this matter disclose that the complaint (PW1) has a friend in the United Kingdom through whom he settles his bills that require payment in the United Kingdom. The email account used by the Pw1 in correspondence with his friend was hacked into and requests were sent to the PW1 to transfer the sum of 7,000.00 and 9,000.00 to settle the bills that were due in the United Kingdom. The PW1 made the transfers to the designated bank accounts sent to him, but the monies were said not to have been received. The PW1 got suspicious when he received an email, supposedly from his said friend, requesting that he pay the Naira equivalent of the pounds sterling into a bank account in Nigeria. The PW1 then reported to the Economic and Financial Crimes Commission and a bait sum was paid into the said Nigerian bank account. The said account belongs to the Respondent, and the Respondent was arrested when he went to the bank in respect of his said account. The Respondents story, however, is that he had gone to the bank to complain about his ATM Card that was not working and also to report a credit alert that he received from an unknown source when he was arrested at the bank. It is on the basis of these set of facts that the Respondent was charged on the Criminal Information for the following offences:

STATEMENT OF OFFENCE- 1ST COUNT

Obtaining money by false pretence contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No.14 of 2006

PARTICULARS OF OFFENCE

Sunday Lucky Egbefoh on or about the 11th day of November, 2014 at Lagos within the jurisdiction of this Honourable Court with intent to defraud, obtained the sum of 7,000 (Seven Thousand Pounds) from Samuel Esan Ogunleye on the false representation made to Ogunleye that were John Mcdonnel, resident in the United Kingdom.

STATEMENT OF OFFENCE-2ND COUNT

Obtaining money by false pretence contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 14 of 2006

PARTICULARS OF OFFENCE

Sunday Lucky Egbefoh on or about the 22nd day of November, 2014 at Lagos within the jurisdiction of this Honourable Court with intent to defraud, obtained the sum of 9,000 (Nine Thousand Pounds) from Samuel Esan Ogunleye on the false representation made to Ogunleye that you were John Mcdonnel, resident in the United Kingdom.

STATEMENT OF OFFENCE- 3RD COUNT

Obtaining money by false pretence contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act, No. 14 of 2006.

PARTICULARS OF OFFENCE

Sunday Lucky Egbefoh on or about the 12th day of February, 2015 at Lagos within the jurisdiction of this Honourable Court with intent to defraud, obtained the sum of N250,000 (Two Hundred and Fifty thousand Naira) from Samuel Esan Ogunleye on the false representation made to Ogunleye that you were John Mcdonnel, resident in the United Kingdom.

The lower Court held that the offences charged were not proved beyond reasonable doubt. The Appellants contention is that the offences in the Criminal Information were proved beyond reasonable doubt. In order to resolve this disputation, which is the crux of the issue as formulated by the Court, it is necessary to see if the essential ingredients of the offences charged were established by the evidence adduced, since proof beyond reasonable doubt is attained by proving the essential ingredients of the offence charged.

The three Counts of the Criminal Information against the Respondent are charges of obtaining money by false pretences contrary to Section 1 (3) of the Advance Fee Fraud and Other Fraud Related Offences Act. Now, Section 1 (1) (a) of the Act provides as follows:-

1. Notwithstanding anything contained in any other enactment of law, any person who by any false pretence, and with intent to defraud

(a) obtains, from any other person in Nigeria or in any other country for himself or any other person …

commits an offence under this Act.

It is hornbook law that the ingredients or elements that are required to be proved to establish the charge of obtaining money by false pretence are:

1. That there was a pretence.

2. That the pretence emanated from the defendant

3. That the pretence was false.

4. That the defendant knew of the falsity of the pretence or did not believe in its truth.

5. That there was an intention to defraud.

6. That the property or thing is capable of being stolen.

7. That the accused person induced the owner to transfer his whole interest in the property.

Now, a critical ingredient in proof of the offence of obtaining by false pretences is credible evidence establishing that the defendant made a representation which is false in fact or law and which he knows to be false or does not believe to be true. In the diacritical circumstances of this matter, it has to be proved that the Respondent posed as the friend of the PW1 and sent the emails requesting that the various amounts of money be transferred to the bank accounts in United Kingdom and Nigeria. The lower Court duly identified the essential elements of the offence charged on pages 240-241 of the Records and reasoned and held as follows on the critical ingredient of whether it was proved that the Respondent made any false representation to the PW1:

There is equally no shred of evidence before the Court linking the defendant to this email of 10/11/14. Nothing to show that it was sent by him or from his email account or that he has the capacity and knowledge to carry out such a hack and I so hold. Contrary to the submissions of learned prosecuting counsel the fact that a person is a computer science graduate and uses a smart phone does not automatically invest him hacking skills and I so hold.

See page 243 of the Records.

This finding of the lower Court cannot be faulted as the evidence did not establish that the pretence emanated from the Respondent. It is correct that the lower Court held as credible the testimony of the prosecution witnesses that the email of the PW1 was hacked; but what is material is whether it was the Respondent that hacked the email. The evidence did not so establish and as rightly held by the lower Court the evidence did not prove the Respondent to be an internet geek that could have performed the hack. What is more, no computer or laptop was recovered from the Respondent, nor indeed was any other incriminating material upon the search at his residence (see page 176 of the Records).

Furthermore, the Appellant had the onus of proving that the Respondent was connected to the United Kingdom bank account to which the PW1 transferred the 7,000.00 and 9,000.00. The finding of the lower Court in this regard is borne out by the evidence on record. Hear the lower Court at pages 242-243 of the Records:

The relevant question is has the prosecution shown to the Court that the defendant is in any way linked to this account in Metro Bank Plc Southhampton [sic] Row, UKinto [sic] which the sum of 7,000 was paid by PW1. Another way of putting this question is whether the prosecution has showed that the alleged recipient of the transfer i.e. Mr. John Mcdonnell, is not linked or connected to this account and did not receive the said sum, and I so hold. From the materials and evidence placed before me there is apparently no linkage between the defendant and the designated account domiciled inMetro [sic] Bank Plc UK. Nothing was found in the defendants email account or other social media accounts scrutinized by PW2, to link the defendant to the said account. Nor was anything incriminating found and recovered from the residence of the defendant when searched by PW2, (and his team) to link the defendant, DW1, to the account in Metro Bank Plc UK and I so hold. Equally, nothing was retrieved from the hard drive of the defendants smart phone, which by his own admission he uses to browse the internet. There is no shred of evidence before the Court that he is the owner of the said account or that he made any deposits or withdrawals from the said account. In fact there is nothing placed before the Court, which ties the account to Lucky Sunday Egbefoh, the defendant herein and I so hold.

Conversely, there is nothing substantive before the Court to demonstrate that the said account in the name of Mr. John Mcdonnell domiciled in Metro Bank UK does not belong to the stated account holder John Mcdonnell. I am able to conclude thus for the singular reason, that the complainants bankers Barclays Bank Plc are surprised that the beneficiary John Mcdonnell, did not received [sic] the transferred funds and therefore initiated an internal investigation, the outcome of which for some strange and inexplicable reasons has not been disclosed to this Court. Surprisingly also PW2, the lead investigator, by is [sic] own admission failed to interview John Mcdonnel and was thus unable to ascertain whether the account in his name domiciled in Metro Bank UK belongs to him and whether the 7,000 pounds was paid into the said account.

I have also paid close attention to the testimony of PW2, the lead investigator. He took time to explain the way and manner the email account of John Mcdonnell appears to have been cloned or hacked using sophisticated internet tools such as a malicious anonymizer. Whilst I accept his evidence as to the way and manner the hack was carried out and how it enabled the hacker to intercept, alter and deface emails sent and received from the account of John Mcdonnell, he, (PW2) was unable to precisely tell the Court when the hack took place. Was it before or after 10/11/14, when the email instruction to pay the 7,000 pounds sterling into a designated account domiciled with Metro Bank Plc UK was received by PW1 and I so hold.

The Appellant makes a foofaraw with the contention that the lower Court having applied the six way test for ascertaining the veracity of the Respondents confessional statement, Exhibit 8, ought to have acted on the other available evidence to hold that the confession was true. Let me restate that the lower Court rightly found and held that the evidence adduced by the Appellant did not establish that the false representation emanated from the Respondent or that the Respondent was connected to the United Kingdom bank accounts in which the sums of 7,000.00 and 9,000.00 were transferred to. In the absence of such evidence there is no other evidence on which the veracity of the retracted confession can be ascertained. The lower Court after referring to the six-way test laid down in the case of R. vs. SYKES (1913) 1 Cr. App. R 233 and which has been applied in numerous cases including IFEANYI vs. FRN (supra) at 191-192, NWAEBONYI vs. THE STATE (1994) 5 NWLR (PT 343) 138, AKINMOJU vs. THE STATE (2000) 4 SC (PT I) 64 at 81, UBIERHO vs. THE STATE (2005) 7 MJSC 168 at 188 189; duly considered the Respondents retracted confessional statement, Exhibit 8, at pages 244-245 of the Records, and correctly evaluated the evidence at pages 245-247; resultantly holding that it could not convict on the retracted confessional statement.

Howbeit, it is exoteric that a confessional statement in criminal law is a statement which admits of the crime. It must admit of the crime both in fact and in law. It must admit of the doing of an act or the making of an omission which constitutes an offence in law. The confession must admit of all the ingredients of the crime or offence confessed:NWOBE vs. THE STATE (2000) 15 WRN 131 at 141 and DAVID vs. FRN (2018) LPELR (43677) 1 at 29-30. I have already set out the Counts on the Criminal Information. The allegation in Count one is that the Respondent falsely represented himself to be the friend of the PW1 as a result of which the sum of 7,000.00 was transferred to a bank account in the United Kingdom. The evidence on record is that the 7,000.00 was transferred to a Metro Bank Plc account in the name of the PW1s friend.

The allegation in Count two is that the Respondent falsely represented himself to be the friend of the PW1 as a result of which the sum of 9,000.00 was transferred to a bank account in the United Kingdom. The evidence on record is that the 9,000.00 was transferred to a Barclays Bank Plc, Leicestershire, United Kingdom account in the name of one M. Weimert. So the crime alleged is the transfer of 7,000.00 and 9,000.00 in two separate tranches to two bank accounts in the United Kingdom.

Now, the retracted confessional Statement, Exhibit 8, inter alia, states:

……. I hack [sic] into Mr. John emails and when I saw their conversations of sixteen thousand pounds, so I pretended to be Mr. John Mcdonnell which was to receive the transfer. So I gave a wrong transfer bank details of my Diamond bank account…..

By all odds, the above confession does not admit both in fact and in law the crime charged. There is no single transaction of 16,000.00 in the charge or in the evidence, neither does the confession relate to any bank accounts in the United Kingdom.

In further consideration of whether there is any other evidence however slight, or circumstances which make it probable that the retracted confessional statement, Exhibit 8, is true, let me iterate that the crucial ingredient in an offence of obtaining by false pretences in the false representation emanating from the defendant. Without a doubt, Exhibit 5 is the email by which the PW1 was requested to make a payment into the Respondents account. Based on this email, the bait money was paid into the Respondents account vide Exhibit 7 and was reflected in the Respondents statement of account Exhibit 9(c). The pertinent question remains whether there is anything outside of the confessional statement, Exhibit 8, which shows that the email, Exhibit 5, emanated from the Respondent? Zilch. Nada. In the absence of this crucial component, the lower Court could not have convicted on the retracted confessional statement, Exhibit 8.

The lower Court was correct when it held as follows at pages 248-249 of the Records:

Undoubtedly, it is an old established principle of law that an accused person or defendant in criminal proceeding can be convicted on his confessional statement alone, where the confession is consistent with other ascertained acts which have been proved. The confessional statement to be of value in a Court of law has to be direct and positive and must relate to the acts, knowledge and intention of the accused, stating or suggesting the inference that he committed the crime charged. See: SOLOMON AKPAN vs. THE STATE [1992] 7 SCNJ @ 22; PAULINUS UDEDIBA vs. THE STATE [1976] 11 SC @ 74 and OGOALA vs. THE STATE (1991) 2 NWLR [Pt. 175] @ 509. In the earlier portion of my judgment I have referred to Exhibit 8, being the defendants alleged confessional statement. I have quoted portions of it above and I have come to the considered position that Exhibit 8 confesses to nothing as it is largely garbled, incoherent and a far cry from the proven facts established at trial and to hold… the only conclusion to be drawn is that Exhibit 8, is not direct or positive nor is it consistent with other ascertained facts. It is therefore unreliable and not of sufficient cogency to anchor a conviction on Count 3 of the information and is [sic] so hold.

The Appellant adduced evidence through its lead investigator, the PW2, that the Respondent is a member of a fraud syndicate. The Appellant did not charge the Respondent with conspiracy. It has however relied on Section 166 of the Administration of Criminal Justice Law of Lagos State to urge that the Respondent should have been convicted for conspiracy. Section 166 of the Administration of Criminal Justice Law stipulates as follows:

If at any trial for any of the offences mentioned in the Criminal Law applicable in the State, the facts proved in evidence justify a conviction for some other offences, and not the offence for which the defendant is charged, he may be found guilty of the said other offences and thereupon he shall be punished as if he had been convicted on a charge or an information charging him with such offences.

In order for the stipulation of Section 166 to avail the Appellant, the facts proved in evidence have to justify a conviction for conspiracy. Do the facts so justify?

There was no independent evidence adduced by the Appellant to prove conspiracy. It is on the basis of the evidence adduced in respect of the substantive offences charged that the Appellant wants conspiracy inferred and the Respondent convicted. In ABIOYE vs. THE STATE (1987) 2 NWLR (PT 58) 645 at 653-654, Akpata, JCA (as he then was) stated:

…it is a general principle of law that an accused person cannot be convicted of conspiracy where he has been acquitted of committing the substantive offence …

I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy…

It is not in dispute that there was no direct evidence of acts of conspiracy against the appellants. Admittedly more often than not it does not require direct evidence to establish conspiracy. The appellants were however acquitted of the charge of stealing… The offence of conspiracy cannot therefore be deduced from either of the alleged substantive offences which were not proved. In the circumstances such as this it requires very strong evidence, if not direct evidence, which will leave no one in doubt that the appellants indeed conspired …

The decision in ABIOYE vs. THE STATE (supra) was followed and applied by the apex Court,per Onu, JSC, in AMADI vs. THE STATE (1993) 3 NWLR (PT 314) 644 at 677. At the risk of prolixity, let me restate that there was no independent direct evidence of acts of conspiracy against the Respondent. It is based on the same evidence on which the lower Court acquitted for the substantive offences that the Appellant urges that Section 166 of the Administration of Criminal Justice Law be invoked, and for conspiracy to be inferred and the Respondent convicted for conspiracy. In such circumstances, since there was no conviction for the substantive offence, there can be no conviction for conspiracy: NJOVENS vs. THE STATE (1973) 5 SC 17, AMACHREE vs. NIGERIAN ARMY (2003) 3 NWLR (PT 807) 256 at 281, USUFU vs. THE STATE (2006) LPELR (11790) 1 at 33-35, ENAHORO vs. THE STATE (1969) NSCC 98, OSENI vs. THE STATE (2017) LPELR (42546) 1 at 60-61, IDOWU vs. THE STATE(2011) LPELR (3597) 1 at 83-84 and BALOGUN vs. THE STATE (2018) LPELR (44215) 1 at 4-5.

In TEMITOPE vs. THE STATE (2010) LPELR (3752) 1 at 24, Iyizoba, JCA, stated the legal position in pungent terms as follows:

See also FRN vs. USMAN (2018) LPELR (43894) 1 at 23-24 and LATEEF vs. FRN (2010) LPELR (9144) 1 at 22-23.

Thus far, I have found that the findings of the lower Court on the offences charged are correct, the concomitance is that the Respondent cannot be convicted for conspiracy since there is no independent evidence in proof of conspiracy. More so, the Respondent cannot be convicted for conspiracy in the absence of evidence that at least one other person conspired with him vide FAYEMI vs. A-G WESTERN NIGERIA (1966) LPELR (25317) 1 at 3. Furthermore, the Respondent alone cannot be convicted for conspiracy in the absence of proof that he acted with other persons who are at large. No man conspires alone with himself as the sole conspirator: SULE vs. THE STATE (2009) 17 NWLR (PT 1169) 33 at 63, MOHAMMED vs. THE STATE (2010) LPELR (9019) 1 at 22-23 and OSHO vs. THE STATE (2011) LPELR (4804) 1 at 37. In consequence, I am unable to accept the Appellants invitation to invoke Section 166 of the Administration of Criminal Justice Law and convict the Respondent for conspiracy. Breviloquently, the facts proved in evidence in the diacritical circumstances of this matter, do not justify a conviction for conspiracy.

I have insightfully considered the evidence on record and, doubtless, the lower Court did a commendable job of evaluating the evidence and ascribing probative value thereto. The findings of fact made by the lower Court are not perverse. They have support in the evidence on record; there is no need to interfere with the unassailable decision of the lower Court. In consequence, the sole distensible issue for determination crafted by the Court is resolved against the Appellant.

The conflating and concatenation of the foregoing is that the appeal is devoid of merit. The same fails and it is hereby dismissed. The decision of the lower Court, Coram Judice: Ipaye, J. in CHARGE NO. ID/1400C/2016: FEDERAL REPUBLIC OF NIGERIA vs. SUNDAY LUCKY EGBEFOH delivered on 16th June, 2017 with the verdict of discharge and acquittal of the Respondent on all the Counts of the Information is hereby affirmed.

MOHAMMED LAWAL GARBA, J.C.A.: I agree

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, Ugochukwu Anthony Ogakwu, JCA, had afforded me the privilege to read the lead judgment in draft, wherein the appeal was dismissed as its lacks merit.

I agree with the analysis of the issues which he collapsed into one and resolved same against the Appellant.

I too, for this same reasons so ably and comprehensively set out in the lead judgment, will dismiss the appeal.

The Judgment of the lower Court in Charge No. ID/1400c/2016: F.R.N. v. SUNDAY LUCKY EGBEFOH delivered on 16/6/17 is hereby upheld.

Appearances:

Abba Muhammed, Esq.For Appellant(s)

Respondent absent and not represented by Counsel.For Respondent(s)

Appearances

Abba Muhammed, Esq.For Appellant

AND

Respondent absent and not represented by Counsel.For Respondent

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FEDERAL REPUBLIC OF NIGERIA v. SUNDAY LUCKY EGBEFOH (2019)

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