ADAMU v. FRN (2021)

ADAMU v. FRN

(2021)LCN/15058(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, February 05, 2021

CA/A/238C2/2017

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ABUBAKAR ADAMUAPPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIARESPONDENT(S)

RATIO

DUTY INCUMBENT ON AN APPELLANT SEEKING THAT THE JUDGMENT OF A TRIAL COURT BE SET ASIDE BY ON THE GROUND THAT THE JUDGMENT IS PERVERSE OR IT ENTAILS A MISCARRIAGE OF JUSTICE; DUTY OF AN APPELLATE WHEN FACED WITH SUCH AN APPEAL

The law is trite that an Appellant who desires to have the judgment of a trial Court set aside by the Appellate Court on the ground that the judgment is perverse or entails a miscarriage of justice must clearly pin-point and show the errors or mistakes committed in the assessment and or evaluation of oral and documentary evidence before it either on point of law or misapplication of facts or evidence led before it because this Court will not lightly interfere with the judgment of the lower Court who has the singular advantage of watching the demeanor of witnesses who gave oral and documentary evidence before the trial Court. It must be stated that it is not every error or slip in a judgment that will lead to its reversal unless it is such grave error that has led to miscarriage of justice. The Appellate Court must not take paragraphs or pages of judgment appealed in isolation or in quarantine but the whole judgment must be read as a single decision of the Court and must not be read in convenient installments all in a bid to disparage the judgment of lower Court. See:- 1. SABURI ADEBAYO v. ATTORNEY-GENERAL, OGUN STATE (2008) 7 NWLR (PART 1085) 201 AT 221 C- D per NIKI, TOBI, JSC of blessed memory who said:- “In order to pick faults in a judgment of a trial Judge, an appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment convenient installments to underrate or run down the judgment while an appellate Court can concede to Counsel the right to be.” 2. IKE-CHUKWU IKPA V. THE STATE (2018) 4 NWLR (PART 1609) 175 AT 226F to 227A – D per AUGIE, JSC who said:- “It is settled that findings on primary facts are matters within the province of a trial Court. There is a rebuttable presumption that its findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see Ibafidon v. Igbinosun (2001) 8 NWLR (Pt. 716) 653 at 662 paras. D-E SC wherein this Court, per Karibi-Whyte, JSC, stated as follows- “It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination the tooth comb scrutiny of the observation of the witnesses’ reactions assessment of the veracity of their testimony. Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge. It is also settled that the duty of an appellate Court to interfere with improper findings or correct any erroneous conclusions, would only come into play where a trial Court fails to properly examine and evaluate the evidence adduced by the witnesses. In other words, there is not much this Court can do when an appeal turns on credibility. It is the trial Court that is in the vantage position to believe or disbelieve the witnesses, and that advantage can never ever be recaptured by an appellate Court. The trial Court’s liberty and privilege to believe one side or disbelieve the other can only be questioned on appeal if it is against the drift of the evidence when considered as a whole – see Adelumola v. State (1988) 1 NWLR (Pt. 73) 683 wherein Oputa, JSC, aptly captured the essence of this principle thus- For example, we all know that 2 plus 2 makes 4. If a witness testifies that 2 plus 2 makes 5, and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him.” PER PETER OLABISI IGE, J.C.A.

POSITION OF THE LAW ON HOW TO PROVE THE OFFENCE OF CONSPIRACY

I must state that it is most of the times not possible to have direct evidence of conspiracy by criminals who engage in criminal enterprise to commit a particular offence. The Courts have over the years evolved facts and circumstances from which inferences could be drawn by the trial Court to unearth criminal conspiracy. The evidence of surrounding circumstances from which a Court will infer conspiracy must be plausible and irresistible. I call in aid:- 1. IBRAHIM ADEYEMI VS. THE STATE (2018) 5 NWLR (PART 1613) 482 AT 491D-H per PETER-ODILI, JSC who said:- “In the matter of the offence of criminal conspiracy leveled against the appellant, it is to be reiterated that to sustain the charge which is pursuant to Section 6(b) of the Robbery and Firearms Act Cap. R 11, Laws of the Federation of Nigeria, 2004, the prosecution has the bounden duty to establish the following essential elements which are thus:- (i) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means. (ii) There the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the argument. (iii) Specifically that each of the accused individually participated in the conspiracy. See State v. Salawu (2010) All FWLR (Pt. 614); 1 at pg. 29; (2011) 18 NWLR (Pt. 1279) 580; Adekunle v. The State (1989) 12 SCNJ 184; 1985 NWLR (Pt. 123) 505; Nwosu v. The State (2004) All FWLR (Pt. 218) 916; (2004) 15 NWLR (Pt. 897) 466 at 486. Of note in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather, the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent criminal purpose common between or among the conspirators. Again, to be said is that to establish conspiracy, all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the conspirators had been in any direct communication one with the other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Ikwunne v. The State (2000) 5 NWLR (Pt. 658) 550 at 560-561: Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483 at 501-502.” 1. ELVIS EZEANI VS. FRN (2019) 3 SCM 22 at 40 B – C per OKORO JSC, who said: “As has been clearly stated by this Court in several decisions; conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Njovens v. The State (1973) All NLR 371, Kayode v. The State (2016) LPELR – 40028 (SC), Chibuzor Nkem Bouwor v. The State (2016) LPELR – 26054 (SC), (2016) 2 SCM 70. As conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties which tend to actualize a common purpose in aid of the agreement. There is no doubt that ingredients of conspiracy abound in the entire presentation between the appellant and is confederates.” 1. CHIBUIKE OFORDIKE VS. THE STATE (2019) 132 AT 146 H – D TO A – C per OKORO, JSC. PER PETER OLABISI IGE, J.C.A.

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of KOGI STATE OKENE JUDICIAL DIVISION (CORAM: HON. JUSTICE J. J. MAJEBI) delivered on 5th day of May, 2016.

The Appellant and two other persons were charged on four Counts before the lower Court as follows:-
“AMENDED CHARGE
Count One
That HON. MUSA GWATANA (being a former chairman of Bassa Local Government Council of Kogi State), JOSEPH Y. AGBO (being a Staff of Bassa Local Government Council of Kogi State), JOHN EKELE (being a Staff of Bassa Local Government Council of Kogi State) and ABUBAKAR ADAMU (Alias Abdullahi Haruna carrying on Business under the name and style of ‘Mando Global International’) sometime between September and December 2008 in Bassa within the jurisdiction of the High Court of Kogi State, did conspire among yourselves to do an illegal act, to wit: Criminal Breach of Trust and thereby committed an Offence punishable under Section 97 (1) of the Penal Code Law of Kogi State.
Count Two
That you, HON. MUSA GWATANA (being a former Chairman of Bassa Local

Government Council of Kogi State), JOSEPH Y. ADO (being a Staff of Bassa Local Government Council of Kogi State) and JOHN EKELE (being a Staff of Bassa Local Government Council of Kogi State) sometime between September and December 200B in Bassa within the jurisdiction of the High Court of Kogi State, being entrusted with dominion over certain property, to wit: the sum of (One Hundred IAillion Naira) obtained as loan on behalf of Bassa Local Government Council from Intercontinental Bank PLC, Lokoja Branch, committed Criminal Breach of Trust in respect of the said sum which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed an Offence punishable under Section 315 of the Penal Code Law of Kogi State.
Count Three
That you, HON. MUSA GWATIWA (being a former Chairman of Bassa Local Government Council of Kogi State), JOSEPH Y. AGBO (being a Staff of Bassa Local Government Council of Kogi State) and JOHN EKELE (being a Staff of Bassa Local Government Council of Kogi State) sometime between November and December 2008 in Bassa within the jurisdiction of the High Court

of Kogi State, being entrusted with dominion over certain property, to wit: the sum of N60,000,000 (Sixty Million Naira), obtained as loan on behalf of Bassa Local Government Council from Intercontinental Bank PLC, Lokoja Branch; committed Criminal Breach of Trust in respect of the said sum which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed an Offence punishable under Section 315 of the Penal Code Law of Kogi State.
Count Four
That you, HON. IAUSA GWATANA (being a former Chairman of Bassa Local Government Council of Kogi State) and ABUBAKAR ADAMIJ (Alias Abdullahi Haruna carrying on Business under the name and style of (‘Mando Global International’) sometime between October 2008 and April 2009 in Bassa within the jurisdiction of the High Court of Kogi State, being entrusted with dominion over certain property, to wit: the sum of N2,000,000 (Two Million Naira), belonging to Bassa Local Government Council which was part of the money for the purpose of executing a contract for the renovation and furnishing of Bassa Local Government Council Hall and Council

Leader’s Office, committed Criminal Breach of Trust in respect of the said sum which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed an Offence punishable under Section 315 of the Penal Code Law of Kogi State.”

The plea of the Appellant and his Co-Accused was taken on 26th of May, 2014. They pleaded not guilty to the four counts and their trial commenced. The Prosecution called two witnesses while the three Accused Persons testified each for himself as DW1, DW2 and bW3 respectively. At the end of the trial and adoption of Written Addresses by the learned Counsel to the parties, the learned trial Judge gave considered judgment on 5th of May, 2016.

The learned trial Judge found on pages 504 – 505 of the record against the three Accused Persons as follows:-
“In the instant case, the evidence adduced by the prosecution proved the ingredients of the offence against the accused persons. The failure of the Prosecution to call additional witness even though relevant or material (as argued by the learned Counsel for the accused persons herein) cannot be

fatal to the case of the prosecution, especially in a case like the instant one where the law does not require any particular number of witnesses to prove any fact. It is sufficient if the evidence of the witnesses as in the instant case is enough to discharge its onus of proof beyond reasonable doubt. See UGWUMBA V. STATE (1993) 5 NWLR (Pt. 296) 660 (1993) LPELR 3332 SC P. 14 Paras C-F.
From the foregoing, I hold that the accused persons failed to rebut the presumption of guilt against them or cast reasonable doubt on the case of the prosecution by preponderance of probability, I am satisfied that the prosecution has proved its case against the accused persons beyond reasonable doubt. In the consequence, I find the 1st and 2nd Accused persons guilty of the 1st, 2nd and 3rd counts of charge and the 3rd Accused guilty of the 1st and 4th counts of charge. I hereby convict them accordingly.”

Passing sentence on the convicts the learned trial Judge after allocutus held:-
“SENTENCE:
On the 1st Count of Charge:
The 1st accused, Joseph Y. Agbo is sentenced to a term of 2 years imprisonment.
2nd accused, John Ekele is

sentenced to a term of 2 years imprisonment.
3rd accused: Abubakar Adamu is sentenced to a term of 2 years imprisonment.
On the and Count of Charge:
The 1st accused, Joseph Y. Agbo is sentenced to a term of 2 years imprisonment.
The 2nd accused, John Ekele is sentenced to a term of 2 years imprisonment.
On the 3rd Count of Charge:
The 1st accused, Joseph Y. Agbo is sentenced to a term of 2 years imprisonment.
The 2nd accused, John Ekele is sentenced to a term of 2 years imprisonment.
On the 4th Count of Charge:
The 3rd accused, Abubakar Adamu is sentenced to a term of 2 years imprisonment.
The sentences are to run concurrently.”

The Appellant was dissatisfied with the lower Court’s decision and has by his Notice of Appeal dated 10th May, 2016 appealed to this Court on five grounds which without their particulars are as follows:-
“GROUND 1:
The trial Judge erred in law when he concluded as follows:
“The appearance of the prosecuting counsel cannot be faulted as it is not in dispute that he has been called to the Bar to practice as a Barrister and Solicitor of the Supreme

Court of Nigeria as provided for Section 2(1)(2)(3) and of Legal Practitioners Act.”
GROUND 2
The learned trial judge erred in law by holding that “the final written address of the learned Counsel for the complainant is incompetent and is hereby discountenanced. This I hold, does not render the entire proceedings as can versed by the learned counsel for the Accused person a nullity).”
GROUND 3
The Court misdirected itself when it concluded that “the purchase of 3 Toyota Carina Cars and Honda CRV Jeep for their own use no doubt accord the wrongful gain and wrongful loss to Bassa Local Government.”
GROUND 4
The learned trial Judge erred in law when he sentenced and convicted the appellants/convicts to 2 years imprisonment, whereas the evidence adduced by the prosecution before the Court did not prove the case against the appellants beyond reasonable doubt as required by the law.
GROUND 5
The learned trial Judge erred in law by assuming jurisdiction to try and convict the Appellants when he had no jurisdiction thereby occasioned miscarriage of justice.”

The Appellant’s Brief of Argument dated 24th January, 2018

was filed on 29th January, 2018. It was deemed filed on 11th November, 2020. The Respondent’s Brief of Argument dated 28th January, 2019 was filed on 7th February, 2019. It was deemed filed on 11th November, 2020.

The appeal was heard on 11th November, 2020, when the learned Counsel to the parties adopted their Briefs of Argument. The learned Counsel to the Appellant distilled three issues viz:-
“(1) Whether the trial Court was right in convicting the Accused person/appellant for the offence of conspiracy when same was not proved.
(2) Whether the trial Court was right when it convicted the Accused person/appellant for the offence of criminal breach of trust under Section 315 of the Penal Code.
(3) Whether the relationship between the Accused person/appellant and Bassa Local Government in the circumstance of this case is not contractual which cannot be tried for criminal breach of trust under section 315 of Penal Code.”

The learned Counsel to the Respondent on his part also formulated three issues thus:-
A. Whether from the totality of the evidence adduced by the Prosecution, the learned Trial Judge was right to have held

that the Prosecution/Respondent had proved and was able to establish the ingredients of the offences of Conspiracy and Criminal Breach of Trust against the Appellant beyond reasonable doubt, warranting the Trial Court to convict and sentence the Appellant on counts one Gild four. (This issue is distilled from ground 6 of the Amended Notice of Appeal).
B. Whether the Trial Court was right to have convicted the Appellant for the offence of Criminal Breach of Trust under Section 315 of the Penal Code, where assuming but not conceding that the money entrusted in him for the execution of the contract was in his personal capacity as a contractor but not as a public servant. (This issue is distilled from ground 8 of the Amended Notice of Appeal).
C. Whether a contractor/person entrusted with money for an execution of a contract job but failed to execute same and converted either part or the whole money, could be prosecuted and convicted for the offence of Criminal Breach of Trust. (This issue is distilled from ground 7 of the Amended Notice of Appeal).

The issues formulated by Respondent are in tandem with the three issues nominated in the appeal by

the Appellant. The appeal will be determined on the three issues formulated by the Appellant.
“(1) Whether the trial Court was right in convicting the Accused person/appellant for the offence of conspiracy when same was not proved.
(2) Whether the trial Court was right when it convicted the Accused person/appellant for the offence of criminal breach of trust under Section 315 of the Penal Code.
(3) Whether the relationship between the Accused person/appellant and Bassa Local Government in the circumstance of this case is not contractual which cannot be tried for criminal breach of trust under section 315 of Penal Code.”

In arguing issue one, the learned Counsel to the Appellant SAM OWOYOMI, ESQ defined criminal conspiracy as stated in Section 96(1) of the Penal Code. He relied on the case of ABDULLAHI V. STATE (2008) 17 NWLR (PT. 1115) 213 AT 221 to submit that it is the duty of the Prosecution to adduce evidence to establish the ingredients of the offence of conspiracy.

That the Prosecution failed to prove the ingredient of the offence of conspiracy beyond all reasonable doubt. That the facts before the Court did not in any way

link the Accused with other charged in this case. That the evidence before the trial Judge is that the Accused/ Appellant was awarded a contract through his registered company – MANDO GLOBAL INTERNATIONAL. That the negotiation was between him and the Chairman of Bassa Local Government. That it is alleged that the job was uncompleted and that the Appellant appropriated the balance of the contract sum to himself. That the Appellant cannot be said to have committed conspiracy where there is no meeting of minds. He relied on the case of KAZA V. STATE (2008) 7 NWLR (PT. 1085) 125 AT 176 PARAGRAPH B – C to contend that the offence of conspiracy can only be committed if there is a meeting of two or more minds and the offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.

In response to submissions of Appellant on issue one, the learned Counsel to the Respondent, T. N. NDIFON, ESQ relied on the case of EMEKA V. STATE (2001) 14 NWLR (PT. 738) 666 AT 683 to state the ways by which the guilt of an accused may be proved in a criminal Trial.

Learned Counsel submitted that the standard of proof is not proof beyond all doubt or beyond a shadow of doubt but proof beyond reasonable doubt. That the Respondent established ingredients of the offences of conspiracy and criminal breach of trust by proving beyond reasonable doubt that the Appellant and others actually committed the offence charged, hence, leading to the conviction of the Appellant. He relied on the following:-

Section 135 of the Evidence Act, 2011;
2. BARARU V. THE STATE (1987) NSCC 267 AT 273;
3. IORTOM V. STATE (1997) 2 NWLR (PT. 490) 711 AT 732;
4. MICHAEL V. THE STATE (2008) 13 NWLR (PART 1104) PAGE 361 – 386;
5. NWATURUOCHA V. STATE (2011) 6 NWLR (PT. 1242) 170;
6. OKERE V. THE STATE (2001) 2 NWLR (PT. 697) 397 AT 415 – 416.

That the Prosecution was able to establish the ingredients of the offence as stated under Section 96(1) of the Penal Code by the totality of evidence adduced and Exhibits tendered. That the proof required for the offence of conspiracy is admissible evidence by the Prosecution to show that there was a meeting of minds of the Accused persons and at least, one person to do with a common intention and purpose

to commit a particular offence. He relied on the case of OMOTOLA V. THE STATE (2009) 2 – 3 SC (PT. 11) 168.

Learned Counsel submits that the evidence adduced by the Prosecution through PW 1, PW2 and EXHIBITS ‘P8′, ‘P8(1)’, ‘P8(2)’ ‘P8(2)’, ‘P8(3), P12(A)’, ‘P12(B)’, P13(A)’, P13(B), ‘P14′, P15’, ‘P16, ‘P17′, P 18’, ‘P 19′, ‘P20’ and ‘D5’, that there was an agreement between the Appellant and the other Accused persons convicted with him, to do an illegal act, that, to commit criminal breach of trust. He referred to pages 430 – 457 and 463 – 489 of the Record of Appeal. That there is evidence before the trial Court that the Appellant being the Chief Government Health Officer of Bassa Local Government Council and also carrying on business under the name and style of MANDO GLOBAL INTERNATIONAL along with the Executive Chairman of Bassa Local Government Council HON. MUSA GWANTANA (now deceased); the Director of Local Government Mr. Joseph Y. AGBO and the Treasurer of Bassa Local Government Council Mr. John EKELE agreed that the sum of N4,301,000.00 should be paid or given to the Appellant for the renovation and furnishing of Council Hall and

Leader’s Office of Bassa Local Government Council because he has a registered company. That upon receipt of the said sum, they agreed that the sum of N2,000,00 should be diverted without completing the execution of the contract job.

That it is in evidence that the Director of Local Government Mr. Joseph Y. Agbo and the Treasurer of Bassa Local Government Council Mr. John Ekele who are co-convicts were co-signatories to Bassa Local Government Council Accounts signed the cheque in the sum of N4,301,000.00, which was paid to the Appellant for the purported renovation of Bassa Local Government Legislative Hall and furnishing of the Council leader’s office. That it is also on evidence that the Appellant and the other two Accused persons conspired to share the sum of N2,000,000.00 out of N4,301,000.00 the given to the Appellant to execute the job as contained in Exhibit P18.

That the Appellant did not fully execute the entire job as he did not supply all the items he was paid to supply, instead he used N2,000,000.00 to partially execute the job and converted N2,000,000.00 to their own use. He referred to pages 74 – 80 of the record.

That it is trite law that a free and voluntary confession by an Accused, if direct and positive, duly made and satisfactorily proved, is sufficient to ground a conviction, he relied on EMEKA V. STATE (2001) 14 NWLR (PART 734) 666 AT 682 PARAGRAPHS E – F. That the confessional statements of the Appellant on pages 74 – 81 of the Records of Appeal admitted in evidence as, EXHIBITS P 16 and P 17 and that of other two Co-Convicts in pages 82 – 87 of the Records of Appeal, admitted in evidence as EXHIBITS P15 and P20 corroborated themselves. That by the evidence of P W1 and PW2, and the evidence elicited during cross examination from DWI, DW2 and DW3 which are clearly consistent of the confessional and circumstantial evidence were sufficient beyond reasonable doubt to convict the Appellant and other two convicts for the offence of conspiracy.

He relied on the case of AKPA V. THE STATE (2008) 14 NWLR (PART 1106) PAGE 72 to submit that confession in criminal procedure, is like admission in civil procedure, it is the strongest evidence of guilt on the part of an Accused person.

That in order to prove conspiracy, it is not necessary that there should be direct

communication between each conspirator and every other, all that needs to be established is that the criminal design alleged is common to all of them. He relied on the case of ERIM V. STATE (1994) 5 NWLR (PART 346) 522 AT 534 PAPAS A – B.

That it is not the duty of the Prosecution to advance evidence to show when, how and where Accused persons met to conspire among themselves. That it is the law that all the conspirators need not have started at the same time as some may join at a later stage. He relied on the case of NJOVENS & ORS V. THE STATE (1973) NSCC PAGE 257 AT 280.

That conspiracy is a matter of inference from certain criminal act of the parties concerned some in pursuance of apparent criminal purpose in common between them and in proof of conspiracy the acts or omissions of any of the conspirators in furtherance of her common design may be given in evidence against any other or other as of the conspirators. That it is the duty of the Court in every case of conspiracy as best as it could to evaluate the evidence of the complexity of any of those charged with that offence in favour of the Prosecution. He relied on the cases of

ERIM V. STATE (SUPRA) and ODUNEYE V. STATE (2001) 2 NWLR (PART 697) 31 AT 32 – 33.

That it is trite law that if the Prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the defendant. He relied on Section 135(3) of the Evidence Act.

That where during a criminal trial, the Prosecution has proved its case beyond reasonable doubt by presenting evidence in proof of the essential elements of the offence charged, the burden shifts to the Accused person to offer his own explanations in order to controvert the credible evidence of the Prosecution. He relied on the case of TAKIM V. STATE (2014) LPELR – 22667 AT 27 – 28, PARAGRAPHS E – A.

That the Prosecution proved and established all the ingredients of the offence of conspiracy at the trial Court. He relied on the case of AFOLALU V. STATE (2010) 6 – 7 MJSC 187.

He urged this Court to resolve this issue in favour of the Respondent.

ISSUE TWO
Whether the trial Court was right when it convicted the Accused person/appellant for the offence of criminal breach of trust under Section 315 of the Penal Code.

Learned Counsel to the Appellant submitted that in order to sustain a conviction on a charge under Section 315 of the Penal Code, all the ingredients of the offence must be proved. That the three ingredients were not proved in the instant case, yet the trial Court convicted the Appellant. That the Appellant though a public servant was said to be a business man doing business in the name and style of MANDO GLOBAL INTERNATIONAL.

That the Appellant was not awarded the contract in his capacity as a public servant neither was he entrusted with any property at all, thus the conclusion is that the Appellant could not have committed any criminal breach of trust in respect of any property. Learned Counsel submits that the Prosecution has failed to prove the ingredients of offence of criminal breach of trust under Section 315 of the Penal Code and the Appellant ought to be discharged and acquitted.

In response to this issue, Learned Counsel to the Respondent submits that the Prosecution at the trial Court proved/established the ingredients of criminal breach of trust that led to the conviction and sentencing of the Appellant with respect to Count 4. That the Prosecution adduced the following evidence:-

That the Appellant/3rd Accused person is a Public Servant of Bassa Local Government Council and also carrying on business under the name and style of MANDO GLOBAL INTERNATIONAL who was awarded contract for the renovation and furnishing of Council Hall and Leader’s Office in the sum of N4,301,000.00 (Four Million, Three Hundred and One Thousand Naira).
2. The Appellant had dominion over the said sum when it was pad to him on 30th December, 2008 for the execution of the contract job.
3. That the Appellant having been entrusted with the above sum of money he committed criminal breach of trust by diverting or converting the sum of N2,000,000.00 out of the N4,301,000.00 without completing the job the money was paid for.
He relied on Section 311 of the Penal Code and the cases of IBRAHIM & ORS V. C.O.P. (2010) LPELR – 8984 (CA) PAGES 17 – 18 PARAGRAPHS E – B and ONUOHA V. THE STATE (1988) 3 NWLR (PT. 83) 460 (SC) to define the offence and the ingredients of criminal breach of trust.

He referred to Exhibits P8(3), P8(4), P. 17, P. 18 and P. 13B and evidence elicited under cross-examination from the 1st, 2nd and

3rd Accused persons. That full payment of N4,301,000.00 for the repair of the Legislative Council Chambers and furnishing of the Council Leaders office being one of the items specified in Exhibits P8(3) and P8(4) was made to the Appellant from Bassa Local Government Intervention Fund Account, Exhibit 13B.

That the Appellant, during cross examination as DW3 at the trial Court, admitted that he is a civil servant at Bassa Local Government Council in the Health Department as Chief Environmental Health Officer. That he admitted presenting himself as ABDULLAHI HARUNA, a contractor and the owner of MANDO GLOBAL INTERNATIONAL. That he stated that the Council asked him to handle a contract for the renovation and furnishing of Council Hall and Leader’s Office of Bassa Local Government Council because he has a registered company. That he thereafter tendered quotation to that effect in the sum of N4,301,000.00 (Four Million, Three Hundred and One Thousand Naira). That he gave the sum of N2,000,000.00 to the Council’s Leader as directed by the then Council Chairman and he used N2,000,000.00 to execute part of the contract. That the items he mentioned in the last six

(6) lines on EXHIBIT P. 17 in pages 80 of the record were not supplied. These items include OX fan, window louvers, set of computers, printers, sound proof generator and photocopy machine. That he used the money for the items to treat his brother ABDULLAHI HARUNA.

That it is trite law that an act is done dishonestly when a person who did the act or thing does that thing with the intention of causing a wrongful gain to himself or another, or causing wrongful loss to any other person. He referred to Section 16 of the Penal Code. He relied on the case of TIRAN V. C.O.P. (1973) NWLR 143 to contend that dishonestly can and is in cases of criminal breach of trust, proved by circumstantial evidence rather than by direct evidence.

Learned Counsel submits that admissibility of the Appellant’s confessional statement admitted as Exhibit P17 was not contested at the trial. That the Appellant’s evidence during cross examination corroborated the confessional statement, hence this ends the need of further prove of his guilt, notwithstanding that the Prosecution still went further to establish all the ingredients of the offence of conspiracy and criminal of trust against him.

That most of the evidence of the Appellant as DW3 were not in his statements made to EFCC, which were admitted in evidence as EXHIBITS P16 and P 17 respectively. That those pieces of evidences are an afterthought, and go to no issue as same were not made early enough to enable the investigating officers investigate his allegations. He relied on the cases of EBRE V. STATE (2001) 2 NWLR (PT. 728) 617 AT 642 – 643 and ABUDU V. STATE (1985) 1 NWLR (PART 1) 55.

That it is trite law that where the evidence of an Accused at the trial goes contrary to his earliest statement to the Police, such testimony is usually treated as unreliable and therefore ignored. He relied on the case of MBENU V. THE STATE (1988) 7 SC (PT. 111) 71 AT 82 PARA 15.

That it is trite law that a Court may convict an Accused person on his extra judicial confession, which is voluntary and true but inconsistent with his evidence in chief in Court. He relied on the case of EGBOGHONOBE V. STATE (1993) 7 NWLR (PT. 305) AT 838.

That the Appellant at the trial could not in any way impeach nor discredit the evidence of PW1 and PW2 by way of cross examination.

That evidence which is not contradicted by cross-examination, is deemed admitted and it is not the requirement of the law that the Accused should give evidence in contradiction to such unimpeached evidence. He relied on the case of GAJI V. PAYE (2003) 8 NWLR (PART 823) 583 AT 605.

He urged this Court to resolve this issue in favour of the Respondent.

ISSUE THREE
Whether the relationship between the Accused person/appellant and Bassa Local Government in the circumstance of this case is not contractual which cannot be tried for criminal breach of trust under Section 315 of Penal Code.

Learned Counsel to the Appellant submitted that all the witnesses are at ad idem that the Appellant was awarded a contract in his business name. That Bassa Local Government never intended to create a trust. That the Accused/ Appellant never held himself directly or indirectly to be a trustee of the Local Government. That the relationship between Bassa Local Government and the Appellant was purely contractual. That the remedies available in case of breach of terms stipulated in the contract are damages, rescission, specific performance, injunction or quantum

merit. That Bassa Local Government was in contractual relationship with the Appellant and cannot seek redress outside contractual remedies.
He urged this Court to allow the appeal.

In response to this issue, learned Counsel to Respondent submitted repeating the arguments canvassed under ISSUE TWO. That the Appellant was charged, convicted and sentenced for the offence known to law under Sections 311 and 315 of the Penal Code. That the fact that he was charged under Section 315 of the Penal Code does not mean that he cannot be convicted and sentenced for criminal breach of trust if the Prosecution proved the ingredients of criminal breach of trust under Section 311 of the Penal Code. That an error in stating the law or section of the statute under which a charge is laid per se will not be regarded as material unless the Accused is misled by such omission or error. He relied on the case ofOGBOMOR V. STATE (1985) 1 NWLR (PT. 2) 223.

That the Appellant has neither shown that he was misled nor that his conviction under Section 315 of the Penal Code occasioned miscarriage of justice. That the Appellant having understood the charge upon reading and

explaining same to him before he pleaded not guilty on the two count charge, did not raise an objection as to any formal defect in the charge he was standing trial.

He urged this Court to uphold the decision of the lower Court and resolve this issue in favour of the Respondent.

RESOLUTION OF ISSUES
The Learned Counsel to the Appellants complaint is that the lower Court was wrong in convicting the Appellant of offence of conspiracy in that the offence was not proved. The Learned Counsel to the Respondent argued to the contrary.

It must be stated that it is not every error or slip in a judgment that will lead to its reversal unless it is such grave error that has led to miscarriage of justice. The Appellate Court must not take paragraphs or pages of judgment appealed in isolation or in quarantine but the whole judgment must be read as a single decision of the Court and must not be read in convenient installments all in a bid to disparage the judgment of lower Court. See:-
1. SABURI ADEBAYO v. ATTORNEY-GENERAL, OGUN STATE (2008) 7 NWLR (PART 1085) 201 AT 221 C- D per NIKI, TOBI, JSC of blessed memory who said:-
“In order to pick faults in a judgment of a trial Judge, an appellate Court should not take paragraphs or pages in isolation or in quarantine but must take the whole judgment together as a single decision of the Court. An appellate Court cannot allow an appellant to read a judgment convenient installments to underrate or run down the judgment while an appellate Court can concede to Counsel the right to be.”
2. IKE-CHUKWU IKPA V. THE STATE (2018) 4 NWLR (PART 1609) 175 AT 226F to 227A – D per AUGIE, JSC who said:-
“It is settled that

findings on primary facts are matters within the province of a trial Court. There is a rebuttable presumption that its findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see Ibafidon v. Igbinosun (2001) 8 NWLR (Pt. 716) 653 at 662 paras. D-E SC wherein this Court, per Karibi-Whyte, JSC, stated as follows-
“It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination the tooth comb scrutiny of the observation of the witnesses’ reactions assessment of the veracity of their testimony. Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.
It is also settled that the duty of an appellate Court to interfere with improper findings or correct any erroneous conclusions, would only come into play where a trial Court fails to properly examine and evaluate the evidence adduced by the witnesses.

In other words, there is not much this Court can do when an appeal turns on credibility. It is the trial Court that is in the vantage position to believe or disbelieve the witnesses, and that advantage can never ever be recaptured by an appellate Court.
The trial Court’s liberty and privilege to believe one side or disbelieve the other can only be questioned on appeal if it is against the drift of the evidence when considered as a whole – see Adelumola v. State (1988) 1 NWLR (Pt. 73) 683 wherein Oputa, JSC, aptly captured the essence of this principle thus-
For example, we all know that 2 plus 2 makes 4. If a witness testifies that 2 plus 2 makes 5, and he is believed, his arithmetic does not cease to be wrong because the trial Court erroneously believed him.”

will infer conspiracy must be plausible and irresistible. I call in aid:-
1. IBRAHIM ADEYEMI VS. THE STATE (2018) 5 NWLR (PART 1613) 482 AT 491D-H per PETER-ODILI, JSC who said:-
“In the matter of the offence of criminal conspiracy leveled against the appellant, it is to be reiterated that to sustain the charge which is pursuant to Section 6(b) of the Robbery and Firearms Act Cap. R 11, Laws of the Federation of Nigeria, 2004, the prosecution has the bounden duty to establish the following essential elements which are thus:-
(i) An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal by illegal means.
(ii) There the agreement is other than an agreement to commit an offence, that some acts besides the agreement was done by one or more of the parties in furtherance of the argument.
(iii) Specifically that each of the accused individually participated in the conspiracy. See State v. Salawu (2010) All FWLR (Pt. 614); 1 at pg. 29; (2011) 18 NWLR (Pt. 1279) 580; Adekunle v. The State (1989) 12 SCNJ 184; 1985 NWLR (Pt. 123) 505; Nwosu v. The State (2004) All FWLR (Pt. 218)

916; (2004) 15 NWLR (Pt. 897) 466 at 486.
Of note in the duty to establish the offence of conspiracy is the fact that the prosecution is not expected to prove that the conspirators met before carrying out their activities which are seen as criminal rather, the offence of conspiracy is sustained by the prosecution leading evidence from which the Court can discern or infer the criminal acts of the accused person done in pursuance of the apparent criminal purpose common between or among the conspirators. Again, to be said is that to establish conspiracy, all that is expected of the prosecution is to prove the inchoate or rudimentary nature of the offence and the inference from which the meeting of the minds of the accused persons nor is it necessary to establish that the conspirators had been in any direct communication one with the other or others as the case may be. There is no hard and fast rule as to how to infer conspiracy as even the mere evidence of complicity is sufficient. I place reliance on Ikwunne v. The State (2000) 5 NWLR (Pt. 658) 550 at 560-561: Osondu v. FRN (2000) 12 NWLR (Pt. 682) 483 at 501-502.”
1. ELVIS EZEANI VS. FRN (2019) 3 SCM

22 at 40 B – C per OKORO JSC, who said:
“As has been clearly stated by this Court in several decisions; conspiracy is an agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means. See Njovens v. The State (1973) All NLR 371, Kayode v. The State (2016) LPELR – 40028 (SC), Chibuzor Nkem Bouwor v. The State (2016) LPELR – 26054 (SC), (2016) 2 SCM 70.
As conspiracy is always not able to be proved by tendering some evidence, Courts do infer conspiracy from the acts of the parties which tend to actualize a common purpose in aid of the agreement. There is no doubt that ingredients of conspiracy abound in the entire presentation between the appellant and is confederates.”
1. CHIBUIKE OFORDIKE VS. THE STATE (2019) 132 AT 146 H – D TO A – C per OKORO, JSC.

PW1 gave quite extensive and elaborate evidence which was not controverted or challenged under cross examination by the Learned Counsel to the Appellant that the Appellant confessed and admitted in Exhibits P16 and P17 which were his statements which were tendered without any objection that he actively participated in the conspiracy that led

to the offence of criminal breach of trust. There is no doubt that Appellant and other accused persons conspired among themselves to do the illegal act while he was the brain behind a company known as MANDO GLOBAL LIMITED. When he was arrested, he told the EFCC that his name was Abdullahi Haruna the owner of the said company used to bring quotation to renovate and furnished Bassa Local Government Area and Legislative Chamber of the leader of the Council. He confirmed that the contract sum was N4,301,000.00 and that he gave out N2,000,000.00 (Two Million Naira) to the Bassa Local Government Councilors because they fought for the contract and made it possible for him to obtain the contract. By the evidence of PW1 and Appellant’s Statement Exhibit P16, he never supplied many of the items he was paid to supply. He lied about his name and it was in Exhibit P17 he admitted that his real name was ABUBAKAR ADAMU and at the time of the fraud he too was a Staff of Bassa Local Government, a Chief Environmental Health Officer as at 2008 in the same Local Government where he retired in 2014 as Chief Environmental Health Officer. Under cross examination on pages 487 – 488, he admitted all he stated in

Exhibits P16 and P17. He admitted in Exhibit P17 that he did not supply a lot of items for which the sum of N4,301,000.00 (N4.3Million) was paid and they include Ox fan, window louvers, set of computers, printers, sound proof generator and photocopying machine.

There is overwhelming evidence of conspiracy between Appellant and the other co-accused persons to commit the offences for which they were charged.

Under issue 2, the Learned Counsel to the Appellant submitted that Appellant could not be convicted for criminal breach of trust under Section 315 of Penal Code.

There is solid rock evidence on the record showing that the Appellant and his co-accused were engaged in serious criminal breach of trust. The inference one can draw from his being a business man and a Civil Servant of the same Bassa Local Government taking contract(s) and not executing them and handing over part of the purported contract monies back to Councilors for sharing is that they had colluded to betray the trust reposed in them as officers of the said Local Government to divert for their personal account the monies the Local Government borrowed or took as loan to

prosecute capital projects for the upliftment of the Local Government Council of Bassa. The ingredients of the offence were fully proved against the Appellant who exhibited his fraudulent activities bearing false names and operating as a businessman and contractor to the Local Government he worked for as a Civil Servant.

Under issue 3, the learned Counsel to the Appellant submitted that the relationship between the accused person/appellant and Bassa Local Government is purely contractual and that he could not be tried under Section 315 of Penal Code.

Perhaps the same learned Counsel to the Appellant forgot that he had stated that Appellant was a Civil Servant in that same Local Government at the time of the commission of the offences for which he was charged along with others. He was invited according to the Appellant by the other Accused Persons and the Councilors to bring quotation for the contract knowing full well that what he embarked upon was a venture in criminal breach of trust. The Appellant cannot hide under the cloak of being a contractor simpliciter to wriggle out of the mess he pushed himself into. The Appellant has failed to show that

the decision of lower Court is perverse. The three issues distilled by the Appellant are hereby resolved against him.
The Appellant’s appeal is quite unmeritorious.

The Appellant’s appeal is HEREBY DISMISSED in its entirety. The judgment of the KOGI STATE HIGH COURT OF JUSTICE delivered by Hon. Justice J. J. MAJEBI on 5th May, 2016, convicting and sentencing the Appellant on charges against him in ID/9C/2011 IS HEREBY AFFIRMED.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, PETER OLABISI IGE, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

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, conclusion and orders therein.

Appearances:

T. ELIJAH For Appellant(s)

N. NDIFON, ESQ. For Respondent(s)